The past year has continued to be an unprecedented time globally and, of course, in the immigration world as well. During the pandemic, we have watched the Department of Homeland Security face troubling realities, including staffing shortages, responses to COVID-19 via new policy, a large increase in the number of employment-based green card applications, among much more. USCIS specifically has commented on their accomplishments over the past year, including:
Clearly, this list does not capture all USCIS has done over the past year. Notably, this list also does not shed any light on the extreme delays that we still see from USCIS, the consulates, or the DOL, but it does show that USCIS acknowledges the delays and is purportedly working to reduce wait times. Overall, an increase of 50% from the typical baseline of employment-based adjustment of status application approvals is positive, however, the fact remains that in nearly every process line USCIS is well behind historical processing times. We hope that USCIS continues to expand staffing to process these cases outstanding and we will continue to advocate for faster processing times and monitor the trends.
In March of 2020, USICS announced a blanket extension on the response deadlines for certain case types, extending due dates by 60 days. USCIS now extends this flexibility for decisions between March 1, 2020, and March 26, 2022, meaning that a response is due no later than 60 days after the stated due date. The applicable list includes:
This flexibility allows crucial time to gather additional evidence, research applicable law, and make strategic decisions about many cases. If you are concerned about the deadline for a particular matter, please do contact your attorney with Brown Immigration Law and we are happy to provide an assessment of your case.
Following the New Year, the Biden Administration announced a slew of new regulatory plans relating to employment-based immigration. Notably, none of the following plans are effective yet and we will continue to monitor the situation as it unfolds. Many of the proposed regulatory plans mirror the reductionist policies of the former Trump administration, which is unfortunate from an administration that campaigned, in part, on promoting inclusivity and favorable immigration policies. Despite this, we will continue to advocate for our clients and strategically navigate through any new policies, should they be implemented. It is also important to note that many of these plans may never come to fruition.
First, the Biden administration intends to offer a rule to change parts of the H-1B program. Generally, the new rule would redefine the H-1B employer-employee relationship, establish new guidelines for site visits, clarify rules for F-1 students pending an H-1B change of status (cap-gap), and clarify when an amendment to an H-1B is necessary. In tandem, the DOL is to publish a new prevailing wage regulation in March 2022. In the past, Trump attempted to raise the wage requirements for H-1B workers, but this attempt was vacated by a federal judge. Biden publicly announced his support for a salary-based H-1B visa allocation in the 2020 election campaign. Although the specifics of these changes are unknown, it is important to note that there may be new rules on the horizon for 2022.
Next, the Department of State plans to eliminate the availability of a B-1 visa in lieu of an H-1B visa for short term H-1B work in early 2022. B-1 visas for qualifying activities will still be granted, and Trump’s desired overhaul of the entire B-visa program is not on the table, however, this could remove a tool in the toolbox for some important short-term work. If you have questions about qualifying activities on a B-1 visa, please contact your Brown Immigration Law attorney.
The Department of States and USCIS additionally plan to increase filing fees. The government filing fee increase for USCIS is set to take place in March of 2022, while the plan to increase visa application fees at the consulate is set to take place earlier in 2022. A list of the consular services impacted from the DOS’ proposed changes can be found here. We will continue to monitor fee changes to ensure all petitions are filed with the appropriate fees and hope the increase in revenue will aid in faster processing times for the backlog of cases facing USCIS.
Notably, by the end of 2022, USCIS is working to issue a final rule to expand its premium processing service, including I-140 petition for EB-1 multinational managers and executives; applications for employment authorization, and dependent H-4 and L-2 extension and changes of status. This is a positive change that many have advocated for, and we hope USCIS is swift in using its power to expand premium processing to avoid lengthy adjudicatory delays.
An underlying concern we have is the idea of more regulation and more fees at a time when our antiquated and inefficient immigration system is already not supporting our knowledge-based economy in the way many other countries have responded. As a general policy we should be making these processes easier and more efficient and transparent, rather than burdensome and more expensive. As these policies are announced as final regulations we will continue to update and advise our clients.
Although many—including our firm—hoped to leave the pandemic in 2020, and continued that hope for 2021, COVID-19 and its variants continue to impact the globe into 2022. Near the end of the year, on December 28, 2021, President Biden revoked Presidential Proclamation 10315 which had restricted travel from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. As such, the ban, and/or the requirement that travelers from those nations quarantine before entering the United States, is no longer applicable. If anyone in those countries was refused a visa solely due to their physical presence in one of the eight countries under the proclamation, they should reach out to the post where they applied to request reconsideration.
Despite the rescission of PP 10315, the vaccination requirements pursuant to Presidential Proclamation 10294 remain in place for all travelers into the United States globally. As a reminder, due to the pandemic, consulates are continuing to operate at extremely reduced capacities—some less than 50%–which has delayed the issuance of visas and the availability of appointments. We continue to advise clients that if you require a visa to return from your travel be very cautious about your plans and in any event, plan for the unknown as consulates have with minimal notice cancelled and rescheduled appointments months into the future, leaving travelers unexpectedly stuck out of the country. We will continue to monitor the impact of the pandemic on global mobility and the operational capacity of the consulate globally.
On December 23, 2021, the Department of State published a new program to expand interview waivers for certain nonimmigrant visa application. Citing the substantial and positive economic impact nonimmigrant workers have on the US economy, the DOS is seeking to reduce visa wait times. As such, until December 31, 2022, consular officers have the discretion to waive in-person interviews for the following categories: H-1B, H-3, L-1A, L-1B, O, P, and Q visas. This has also been extended to H-2, F and M visas, and (academic) J visas. To qualify, you must have been issued a previous visa of any kind, never have been refused a visa, and have no apparent or potential ineligibility. This also applies if you are a first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q who are citizens of a Visa Waiver Program country with no apparent ineligibility and have previously entered the US via ESTA.
Furthermore, the authorization to waive the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration has been extended indefinitely.
In practice, the interview waiver process is very similar to India’s dropbox procedure. The applicant should complete their DS-160, submit it, and then go to schedule their appointment on the applicable consulate’s website. Once at the appointment scheduling stage, the applicant will be prompted with a list of questions. Depending on those questions, the website will determine whether your interview requirement has been waived.
Near the end of 2021, USCIS announced a temporary waiver of the requirement that a civil surgeon’s signature on Form I-693 (medical exam and vaccination record) be dated no more than 60 days before an applicant files for the underlying benefit. The policy is effective from 12/6/2021 through 09/30/2022. USCIS noted that this temporary waiver is due to the COVID-19 pandemic and related processing delays which have resulted in applicants experiencing difficulties beyond their control.
The visa bulletin for January 2022 has been posted by the Department of State. For January, the visa bulletin 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 and EB-3 and we still see an inversion with India EB-2 and EB-3.
With 290,000 Employment-based Immigrant visas available for this fiscal year, we do still anticipate significant forward movement for both EB-2 and EB-3 India, although it remains clear that DOS is taking a slower approach at present, likely because of staffing limitations at both consulates and USCIS.
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. Below you will find our initial invite for our H-1B Cap webinars for employees going through the H-1 lottery. There are initially two dates to choose from and we will offer more dates and times as we get closer to the lottery selection date. It’s important to know that this is still plenty of time to get ready for the registration and to have applications ready for final selection. In a separate email we will send an invite for our HR only webinar that speaks to the issues more critical to an HR partner who wants to better understand the process and what to expect.
Please join us for our H-1B Cap Registration for Employees – all you need to know for this year’s cap process.
Managing Partner David Zaritzky Brown will talk about:
After David’s 35-40 minute presentation he’ll take time to answer questions from the group.
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.
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 **