Newsletter – March 2022

News RoomMay 11, 2022

Newsletter – March 2022

The end of another H-1B lottery registration period is near! To our HR partners, please be sure to have your handshake completed by EOD March 17, 2022, if not before (lottery closing 12:00PM EST on March 18, 2022).

We also wish a Happy St. Patrick’s Day to all those who celebrate!

USCIS Urges Transfers of Underlying Basis

In an alert near the end of February, USCIS encouraged certain adjustment applicants to transfer the underlying basis of their adjustment of status applications to either the EB-1 or EB-2 category, if eligible. The USCIS fiscal year 2022 will end in September, and until then USCIS has confirmed that it has an unusually high number of immigrant visas available in the EB-1 and EB-2 categories. Those eligible include those who:

  • Have continuously maintained eligibility for adjustment of status;
  • Have an adjustment of status based on their original I-140 is still pending;
  • Are eligible for the new immigrant category (EB-1 or EB-2); and
  • Have a visa is immediately available for them in the new category (they are current based on their country of chargeability for EB-2 or EB-3 in the applicable visa bulletin).

In the past, little was known about the process for making the transfer of underlying basis request—some used a letter, some a phone call to USCIS, and even others a request during their adjustment interview. USCIS, however, has now formalized the procedure, requiring the filing of form I-485 Supplement J. If you believe you are eligible to transfer the basis of your pending adjustment, or have other questions about a request you have already made, please contact your Brown Immigration Law attorney for an assessment of your case.

Check Your Employment Authorization Document based on a Pending Adjustment – It May Not Authorize Travel

USCIS has recently reinstated an old policy of issuing separate Employment Authorization Documents (EAD’s) and Advance Parole documents (AP’s) based on pending adjustments. See AILA Doc. No. 22022403. In the most recent years, applicants for an EAD/AP based on a pending adjustment of status application would receive a combo card, allowing both travel and work authorization while their application pends with USCIS, containing the words “serves as I-512 Advance Parole” at the bottom:

Now, USICS will, at times, issue an EAD card with the words “not valid for reentry into the U.S. appearing at the bottom:

Now, USICS will, at times, issue an EAD card with the words “not valid for reentry into the U.S. appearing at the bottom:

If you require Advance Parole to travel and avoid abandoning your adjustment of status application (depending on your current, nonimmigrant status), and your EAD card comes through without the AP combo demarcation, you must wait to travel until you are issued a separate Advance Parole document (below). This shift was done in order to speed up the backlog of EAD’s that USCIS is facing, however, we understand this can be incredibly frustrating for those who have waited long to travel abroad to see loved ones. We maintain our hope that USCIS resumes faster processing times across the board.

Photos taken from Google images, we own no right to the photos, and they are solely used for reference only.

USCIS Issues National Interest Exemption for Certain Ukrainian Nationals

The ever-expanding situation in the Ukraine has been reported on around the world, and in some venues, has brought immigration to the forefront as a tool of protection for those fleeing the area for safety.

For those abroad, the Biden Administration recently released a National Interest Exception (NIE) from Presidential Proclamation 10294, allowing certain Ukrainians to enter the United States without showing proof of COVID-19 vaccination. Additionally, pasting AILA’s update for Consular Services in Kyiv here:

DOS provided an update about the ordered departure of most U.S. direct-hire employees from the embassy in Kyiv, Ukraine, on February 12, and the suspension of consular services to include interview waiver services on February 13. The update also includes information for applicants who want to transfer immigration cases currently pending with U.S. Embassy Kyiv. CBP’s Carrier Liaison Program also provided an update stating it will not require certain persons traveling to the United States from Ukraine to complete a pre-departure COVID-19 test. This update is effective immediately and expires on March 1, 2022. Additionally, DOS released guidance for U.S. citizens currently in Ukraine on entering nearby countries.”

For those who have traveled to the southern border of the United States, under a policy started by former president Donald Trump, immigration officials turned away some Ukrainian nationals seeking entry under Title 42, a public health law Trump used to limit entry of many asylum seekers during the COVID-19 pandemic. The Biden Administration has continued the policy of using Title 42 to turn people away at the border. On March 12, 2022, the Biden Administration ended the use of Title 42 for unaccompanied children entering the United States through the southern border but kept it in place for other migrants. The order is set to expire in April 2022, hopefully leading to more ability for migrants to request asylum at the southern border, including those fleeing the devastating situation in the Ukraine.

Finally, for those physically present in the United States, the Biden Administration has designated Ukraine for Temporary Protected Status (TPS).

Our managing partner, David Zaritzky Brown, who’s father and grandmother were born in Kharkiv, had this reaction: “As each day unfolds the crisis in Ukraine deepens, and clearly more must be done to stop it and help those who are at serious risk of death or injury. As a firm we are financially supporting several international aid operations to help the millions who are being forcibly displaced. Our obvious hope is that our Administration does more to offer refuge and safe passage to those who wish to come to the U.S. to find temporary safety, but given the speed of the invasion, we need a more rapid government reaction. If you have an immigration need caused by the invasion we’re here to help.”

New York City Labor Law – PERM Implications

For our clients headquartered in the New York area, New York City recently passed a law requiring employers to disclose salary ranges on job advertising. The law, going into effect May 2022, makes it a discriminatory practice for employers with more than four employees to fail to list the salary range on a job advertisement. New York City joins Colorado in this practice. For our clients, this has a direct impact on advertising for the PERM Labor Certification process. If you are a New York headquartered company and have questions about this new law’s impact, please contact your Brown Immigration Law attorney for further information.

IOE Receipt Number

Many H-1B petitions filed in the past few months have been receipted with a receipt number beginning “IOE”. This reflects the recent expansion of electronic adjudication by USCIS for certain forms, especially H-1B petitions. The related Service Center is still noted at the bottom of the receipt notice for these “IOE” petitions, and USCIS notes that although the forms are adjudicated online, paper filing is still required for I-129 H-1B petitions. Finally, in certain “IOE” receipts, the middle name is listed as “nmn” which stands for no middle name and will not be reflected in the physical notice.

EB-5 Program Reauthorized – Pending Presidential Signature

The EB-5 regional program will finally be revived after it was allowed to expire since June 30, 2021. Through the EB-5 Reform and Integrity Act of 2022 (part of the Omnibus Spending Bill), the EB-5 Regional Center Program will be reauthorized through September 30, 2027. Once signed, this reauthorization should signal to USCIS to begin adjudicating these petitions once again and accept new filings. If you have questions about your pending EB-5 application, contact your Brown Immigration Law attorney for more information.

Visa Bulletin

The visa bulletin for April 2022 has not yet been posted. For March 2022, 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, with much slower progression in EB-3. With so many immigrant visas still available for the EB-1 and EB-2 categories, we anticipate movement in those categories going forward to the end of the fiscal year in September 2022. In the EB-3 category, we have noticed a slowdown in movement after earlier this year.

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 **