Newsletter – February 2022

News RoomFebruary 23, 2022

Newsletter – February 2022

New Mission Statement from USCIS

As most reading this newsletter know, USCIS has faced intense criticism due to its historic backlogs and slow processing times, almost double what was previously standard, along with many other bureaucratic difficulties. Recently, USCIS update its mission statement, which now reads:

“USCIS upholds America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.”

This new mission statement excludes the previous focus on vetting and “protecting Americans” as tenants of the previous, Trump-era version. We hope that this new mission statement signals a shift in USCIS policy towards more fair, efficient, and beneficial adjudications for our clients and immigrants in general who seek to navigate the complex U.S. immigration system. Publicly, the American Immigration Lawyers Association (AILA) has issued its praise for the refreshed mission statement, with AILA President Allen Orr noting the “words in the new USCIS mission statement make clear that our nation acknowledges what is owed to the immigrants who have contributed immensely to our society and have made America home.” See AILA Doc. No. 22020906. Our managing partner, David Brown, had this to say: “This is a refreshing change of direction from the mission adopted by the prior administration, and we are already witnessing a change in the adjudicative tone, but what is clearly needed is more efficiency, more staffing, more accountability, and more compassion – we will continue to help push USCIS in that direction.”

America COMPETES Act

On February 4, the House of Representatives passed The America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act of 2022 (America COMPETES Act). The Act contains many provisions to strengthen the U.S. economy and competitiveness in addition to two important immigration-related provisions—a new visa for entrepreneurs and a path to permanent residence for immigrants who earn a Ph.D. in a STEM field in the United States.

New visa category for entrepreneurs: This new visa, known as the W visa, would be available for startup companies, including the company’s founder (W-1) and essential employees such as managers and executives (W-3), along with spouses and children (W-3). The visa would be available for up to six (6) years. From initial reporting, W visa holders would be able to apply for legal permanent residency if their startup meets success criteria (business growth with higher revenues).

Path for Ph.D. graduates from U.S. universities in STEM: Certain employment-based adjustment applicants would no longer be subject to numerical limitations allowing a direct path for a green card for those who hold Ph.D.’s from a U.S. institution (or equivalent). This may also apply to those holding a master’s degree in a critical industry (including an industry critical for national security, critical infrastructure, or critical technological development). This would functionally be an exception to the numerical cap for those who qualify.

There are a slew of other developments and amendments, including a new refugee program for Hong Kong residents, a new E-4 visa for South Koreans (similar to E-3 visas for Australian nationals), special immigrant visas for Fulbright Scholars, among other developments.

While there is a still an ever-present need for comprehensive immigration reform, this Act signals a great step forward, creating new pathways to permanent residency. Combined with USCIS’s new mission statement, we hope that this provides smooth pathways for immigrants who have been waiting for decades for immigration benefits. Importantly, this measure still must face the Senate before becoming law, so little is known about what the final version of the Act will look like. We will continue to monitor the America COMPETES Act.

Hope for EB-5 Regional Center Reauthorization

Since June 2021, Congress has allowed the EB-5 Regional Center Program to expire without reauthorization. This has meant that many EB-5 applicants who initially invested large sums of money into Regional Centers have been in limbo—their applications sitting in abeyance with USCIS while waiting on Congress to reauthorize the program. Soon—on February 18, 2022—the U.S. federal government will run out of funding unless a new appropriation bill is passed. The House is set to pass a stopgap measure extending funding to the middle of March to avoid a shutdown, but reports expect that the EB-5 Regional Center program will be reauthorized in the new spending bill. The important date for EB-5 Regional Center reauthorization will be March 11, 2022, as the next real opportunity for reauthorization. To take action, AILA has created a form to urge Congress to reauthorize the program, which can be found here.

Transfer of Underlying Basis – One Employment Based Category to Another

Over the past year, we have watched the visa bulletin shift between EB-2 and EB-3 being preferrable categories based on the dates of final action or dates of filing. As these shifts happen, many who have already filed for their adjustment of status (I-485) desire to change the basis of their category, from EB-2 to EB-3 or vice versa, depending on their qualifications.

Up until now, USCIS guidance has been silent on the best practice for transferring the underlying basis of an employment-based adjustment application. Near the end of January, USCIS published guidance on this process. According to the USCIS website, a request to transfer a pending Form I-485 from one employment-based preference category (e.g., EB-3) to another employment-based preference category (e.g., EB-2) must be made in writing, with a completed Form I-485 Supplement J (if required), to their listed address no later than September 30, 2022.

Importantly, if you have already requested your underlying basis transfer, you do not need to submit another request. To transfer your underlying basis, your priority date must be current for the category you wish to transfer to. More information can be found here.

Visa Bulletin

The visa bulletin for February 2022 shows that EB-1 Worldwide remains current, as well as EB-1 in China, India and Philippines. EB-2 Worldwide is still current, and India and China are progressing slowly in EB-2. EB-3 remains current worldwide other than India and China, and we are generally seeing less movement in this category month to month. It remains clear that DOS is taking a slower approach at present, likely because of staffing limitations at both consulates and USCIS.

USCIS Announces Important Dates for H-1B Cap 2022

On Friday, January 28, 2022, USCIS announced the dates for this year’s registration period which will open on March 1, 2022 at 12:00 PM (EST) and close March 18, 2022 at 12:00 PM (EST). Additionally, USCIS confirmed that employers will be able to create registrant accounts starting February 21, 2022 at 12:00 PM (EST).

An important note for employers is to refrain from creating a USCIS account until February 21, 2022, as creating the account early can lead to issues with the account setup.

Tuesday, March 1, 2022 is the earliest USCIS has opened the registration process and while it may provide USICIS with more time to run the lottery prior to March 31st, it will also shorten an employers’ time in which to determine who should be put forward in this year’s lottery.

We will continue to keep our clients up to date as USCIS continues to release important announcements about the H-1B lottery this year. As a reminder, one way of getting current info is through our free webinar. Please see details below.

Upcoming Webinar:

The Latest Updates on H-1B Cap Season For Employees and Employers

A new year brings a new H-1B lottery selection! We want to answer all of your questions and ensure you know how to navigate the H-1B cap season as either an HR professional/manager or as a foreign national employee. Join Managing Partner, David Zaritzky Brown, as he walks through what to expect for this upcoming H-1B Cap season and how our firm will process applications. This is a key talk for everyone who are dealing with the H-1B cap season as the Cap opening is from March 1st – 18th. This webinar will cover items that are important if this is your first Cap season, as well as key updates and strategies for all HR leaders.

REGISTER HERE For March 2, 2022

Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website to join the LIVE chat.

If you have contacts or colleagues who may benefit from our talks, you are welcome to invite them to join our VIP invitation list by sharing our webinar schedule where they can subscribe for further information.

Don’t miss these opportunities to increase your knowledge on important immigration issues!

Thank you and we look forward to having you at the event.

Best Regards,

The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **