When a district court judge in Florida lifted the Centers for Disease Control and Prevention (CDC) federal COVID-19 mask mandate on April 19, 2022, the Transportation Safety Administration stopped enforcing it. However, the judge’s ruling left it up to airlines and local transit agencies to decide how to respond.

Many airlines immediately lifted the mandate – making masking optional, but the same cannot be said for local transit authorities. There is a patchwork of regulations with masks still required at certain airports, bus terminals, subway stations, and ferries. If traveling, even those who are opposed to masking should probably keep a mask on hand.

About a week before the ruling, on April 13, 2022, the CDC had extended the federal mask mandate until May 3, 2022, due to the surge in the COVID-19 Omicron BA.2 variant. The purpose was to have additional time “to assess the potential impact the rise of cases has on severe disease, including hospitalizations and deaths, and health care system capacity ….”

The Department of Justice (DOJ) has decided to appeal the judge’s ruling to preserve the mask mandate and, according to White House press secretary Jen Psaki, “to ensure the CDC’s authority and ability to put in mandates in the future remains intact.” Although the appeal has been filed, the DOJ has yet to request an injunction. The Florida ruling remains in effect for now.

In the meantime, the Biden Administration continues to urge Americans to wear masks on public transportation based upon current CDC guidance.

The Jumpstart Our Legal Immigration System Act (Jumpstart), introduced by Zoe Lofgren (D-Calf.) in the House of Representatives, if passed, could revolutionize the green card process. The legislation would recapture thousands of unused family- and employment-based visas and allow beneficiaries to expedite their processes by paying additional fees.

The Jumpstart Act would help to eliminate green card backlogs that have built up for years and were exacerbated by the COVID-19 pandemic. There are over one million people waiting in the employment-based green card backlog (with an additional four million in the family-based categories). Pursuant to the Jumpstart Act, approximately 157,000 visas that were not used from 1992 though 2021 would be rolled over and put to use. The bill also would allow 40,000 individuals who “won” the diversity lottery from 2017 through 2021, but did not receive visas due to delays or restrictions on entry to the United States, to reapply.

For individuals, including many employment-sponsored green card applicants who are waiting to apply for adjustment of status, new fees would allow them to move their processes forward. The fees are as follows:

  • Individuals with approved immigrant visa petitions, who are waiting for their priority dates to become current, would be allowed to apply for adjustment of status by paying supplemental fees:
    • $3,000 for employment-based first, second, and third preference petitions
    • $15,000 for employment-based fifth preference petitions
    • $1,500 for family-based petitions

The benefits would be:

    • The ability to apply for Advance Parole and Employment Authorization
    • The ability to port to another job after 180 days (if the application is employment-based)
    • Children could be prevented from “aging out”
  • For larger fees, beneficiaries of approved immigrant visa petitions with priority dates that are more than two years away could receive an exemption from the country-based limitations and adjust status to legal permanent residence, i.e., become green card holders, right away:
    • $7,500 for employment-based first, second, and third preference petitions
    • $100,000 for employment-based fifth preference petitions
    • $2,500 for family-based petitions

The Jumpstart Act would also add supplemental fees to various types of petitions and applications – the first $400 million in collected supplemental fees would go directly to USCIS to adjudicate petitions and reduce backlogs. The fees are as follows:

    • $800 for each Form I-140, employment-based immigrant visa petition
    • $500 for each Form I-129 petition for E, H-1B, L, O, or P nonimmigrant status
    • $500 for Form I-765 employment authorization filed by spouses of certain nonimmigrants
    • $15,000 for each I-526, employment-based fifth preference petition
    • $100 for certain Form I-130 family-based immigration visa petitions

The major provisions of the Jumpstart Act were included as part of the House-passed version of the Build Back Better Act. If passed as stand-alone legislation, some of the new supplemental fees would likely fall to employers; however, the additional green card fees could be paid by the beneficiaries. One benefit to employers is that once employees become green card holders, they no longer need underlying nonimmigrant status. The costs saved in not having to continue to file extensions year after year while waiting for employees to become current would likely make up for the supplemental fees. Anecdotally, it seems that many foreign nationals waiting in long lines to become green card holders would be happy to pay the extra fees to get legal permanent residence without long waits.

Jackson Lewis attorneys will continue to follow the progress of the Jumpstart Act and provide updates as they become available.

 

 

 

 

Department of Homeland Security (DHS) has issued a Federal Register notice with instructions on how to apply for Temporary Protected Status (TPS) for both Ukraine and Sudan. Both designations run for 18 months, until October 19, 2023.

When Ukrainian TPS was originally announced, only individuals who had continuously resided in the United States since March 1, 2022, were eligible to apply. With the new announcement, DHS has moved that date forward by more than a month to April 11, 2022.

Ukrainians who meet the eligibility requirements will be able to register for TPS and apply for employment and travel authorization during the registration period that runs from April 19, 2022, through October 18, 2023.

The new initial designation of TPS for Sudan applies to all Sudanese nationals and those of no nationality who last habitually resided in Sudan who have continuously resided in the United States since March 1, 2022. During the registration period, which runs from April 19, 2022, through October 19, 2023, eligible individuals may submit applications for TPS, employment, and travel authorization.

There are Sudanese nationals who already have TPS and employment authorization that has been continued until December 31, 2022, based on pending litigation. While this status might be further extended, DHS advises that even those individuals should apply for the new initial designation to avoid any possible gaps in status.

Ukrainian and Sudanese students who are in the United States in F-1 status and who are suffering from severe economic hardship may be able to request work authorization, reduce their course loads, and work increased hours.

Instructions on how to apply for Ukrainian TPS and the new Sudanese TPS are found in the Federal Register.

Jackson Lewis attorneys are available to assist in making applications, determining work authorization, and advising on the employment verification process for employees with TPS.

 

The Department of Homeland Security has announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months.

The designation is based on the ongoing armed conflict in Cameroon. Secretary Alejandro N. Mayorkas stated, “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”

Only individuals who have continuously resided in the United States as of April 14, 2022, will be eligible for TPS under this designation. Individuals who attempt to travel to the United States after that date will not be eligible for TPS.

The TPS designation will go into effect on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and an Employment Authorization Document. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Jackson Lewis attorneys are available to assist you with any questions.

On April 18, 2022, USCIS announced that it had received 483,927 registrations for the FY 2023 H-1B Cap. This is the largest number ever received – almost 200,000 more than the total count of 308,613 for FY 2022.

Out of the 487,927 registration applications, USCIS selected 127,600 to fill the 85,000 available spots. Employers whose H-1B Cap Registrations have been selected have a 90-day window to file the H-1B Cap Petitions with USCIS.

USCIS calculates the number of cases it will select based on historical data regarding the number of petitions that have been filed post-selection and the number of denials forecast. Last year, COVID-19 was a big unknown and USCIS had to conduct three selections totaling 131,970 to reach the goal of filling 85,000 H-1B Cap slots. In the first selection round last year, USCIS selected only 87,000 registrations.

Now, with better historical data, the agency has selected more registrations this year, which means it may not conduct any additional selections later this year.

If you have any questions about this year’s H-1B cap selection process, Jackson Lewis attorneys are available to assist.

Starting May 2, 2022, foreign nationals who are citizens of the 40 Visa Waiver Program (VWP) countries will have to use the Electronic System for Travel Authorization (ESTA) to enter the United States at land ports of entry.

The paper Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Record, that is currently in use at the northern and southern borders is being eliminated.

The VWP allows citizens of the VWP countries to enter the United States for up to 90 days for tourism or as a business visitor without obtaining a visa. ESTA has been required for VWP travelers arriving by air or sea since 2008. Although Customs and Border Protection (CBP) officers have final say at the border, ESTA provides a kind of “pre-approval.” The new rule is simply an expansion of the program to “produce a consistent, modern Visa Waiver Program admission policy, strengthen national security through enhanced traveler vetting, expedite entry processing at land ports of entry, collect Form I-94W information electronically, and reduce inadmissible traveler inspections, generating time and cost savings for CBP [] and Visa Waiver Program travelers.”

Except for one big difference, the ESTA regulations for land borders are the same as air and sea borders. VWP travelers arriving by air or sea must obtain ESTA approval prior to embarkation and provide the ESTA information to their air or sea carriers. VWP travelers arriving by land, often in private vehicles, will have to obtain the ESTA approval just prior to admission for presentation to CBP.

The Department of Homeland Security has a few tips:

  • The agency recommends applying for ESTA at least 72 hours in advance to avoid possible processing delays.
  • After May 2, 2022, any VWP travelers arriving without ESTA pre-approval will be asked to return to Canada or Mexico and make that application (which, hopefully, will take just a couple of hours, but that is not guaranteed).
  • ESTA is generally approved for two years and is valid for multiple entries. Anyone who already has a valid ESTA approval can use that and does not need to reapply for an arrival at a land port of entry.

Citizens of Canada are visa exempt and have not been required to have an ESTA pre-approval for entry in visitor status by air or sea. This same exemption likely will apply for land entries.

For more information about the VWP or ESTA, please reach out to your Jackson Lewis attorney.

The Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed the House of Representatives on April 1, 2022. If passed by the Senate and signed by the President, the bill would clear marijuana-related convictions from people’s records and remove marijuana from the federal controlled substances list. The bill specifically prohibits the denial of benefits and protections under immigration law based on marijuana related conduct.

Thirty-seven states allow use of medical marijuana and 18 of them allow non-medical use. Canada legalized marijuana in 2018. The legal marijuana industry is clearly growing in the United States, but foreign nationals cannot participate and cannot even invest in these companies without risking immigration consequences. Any foreign nationals, even green card holders, can be barred from returning to the United States or prevented from naturalizing (for at least five years) for participation in the marijuana industry or using marijuana even where it is legal. This is due to the conflict between state and federal laws. Removing marijuana from the federal controlled substance list would eliminate the conflict and eliminate the immigration “penalties” that affect those working in or with the legal marijuana industry.  Without this change in federal law, the United States would find it more difficult to attract high-skilled talent and investments for the legalized marijuana industry from foreign countries – making it harder for the U.S. industry to compete – especially with Canada.

Jackson Lewis attorneys will continue to follow the progress of the MORE Act.

 

A new Form I-9, Employment Eligibility Verification is in the works.  The Department of Homeland Security (DHS) is seeking comments on its proposed changes to the form.

Used by all employers, Form I-9 has always had many traps for the unwary.  DHS, with its proposed changes, is trying to simplify and clarify things.

The proposed changes include:

  • Paper reduction.
    • DHS is compressing Sections 1 and 2 into one page instead of two.
    • Section 3 will be a separate Reverification and Rehire Supplement that is is a “stand alone” section, which only is accessed if needed for one of those purposes.
    • The instructions which are attached to Form I-9 are reduced from 15 pages to 7, and users are directed to the online M-274 handbook and I-9 Central for all other questions.
  • List of Acceptable Documents
    • The List of Acceptable Documents will be updated to include a link to the List C resource in the regulations 8 CFR 274a.2(b)(1)(v)(A-C). Since List C is where the unlisted documentation resides, this will be a helpful resource.
  • Clarifications
    • The new I-9 places more emphasis on what constitutes discrimination in the I-9 context.
    • There will be clarified reverification and rehire instructions directly on the form.
    • The onerous “N/A” requirement is eliminated by clarifying that fields that do not apply can be left blank.

Many advocates hoped that the flexibility on “in-person” verifications might be continued beyond COVID-19, but there is nothing about that flexibility on the new form. However, problems that some users may have had due to software issues may be reduced because DHS is removing electronic PDF enhancements.

The comment period will be open until May 31, 2022.  Jackson Lewis attorneys will provide updates as they become available.

As they did for last summer, the Department of Homeland Security (DHS) and the Department of Labor (DOL) will make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of FY 2022. This more than doubles the usual 33,000 allocation or cap for the summer.

Of the new 35,000 visas, 23,500 will be allocated to returning workers (those who received H-2B status within the past three years) and 11,500 will be allocated to nationals from El Salvador, Guatemala, Haiti, and Honduras, regardless of whether they are returning workers. Last year, the special allocation included only the Northern Triangle countries. This year, Haiti has been added.

Secretary of DHS Alejandro J. Mayorkas said the new release is due to demand in the labor market and is meant to “support American businesses and expand legal pathways for workers seeking to come to the United States.” This should please some businesses, such as hotels, restaurants, and other service providers in summer tourist areas. However, last year, despite the additional allocation, all the extra visas were snatched up quickly (except for a few left over from the Northern Triangle allocation).

H-2B visas allow employers to bring foreign national workers to the United States for temporary, seasonal, nonagricultural jobs. There is a three-step process involved. First, the employer must prove to DOL that there are not enough U.S. workers available to do the job and that bringing in foreign nationals for these positions will not adversely affect the wages and working conditions of U.S. workers. Then, a petition must be filed with USCIS. Finally, if all of that is approved, the worker must apply for an H-2B visa abroad.

Some workers are exempt from the cap:

  • Workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of their employment;
  • Fish roe processors, fish roe technicians, and their supervisors;
  • Workers who will be doing jobs in the Commonwealth of Northern Mariana Islands or Guam.

For more information on bolstering workforces with H-2B workers, listen to Jessica Feinstein’s and Brenda Oliver’s podcast on the subject.

 

The Department of Homeland Security set out the specifics about the upcoming new premium processing benefits in the Federal Register on March 30, 2022. The details, however, did not include any specific implementation dates, which it said depends on when the revenues exist to cover potential costs.

The plan is to make premium processing available for more Form I-140 petitioners and for Form I-539 and I-765 applicants:

  • Form I-140 requesting EB-1 immigrant classification as a multinational executive of manager or EB-2 immigrant classification as a member of the professions with an advanced degree or exceptional ability seeking a national interest waiver
    • Fee: $2,500
    • Timeframe: 45 days
  • Form I-539 requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status
    • Fee: $1,750
    • Timeframe: 30 days
  • Form I-765 requesting employment authorization
    • Fee: $1,500
    • Timeframe: 30 days

DHS stressed that, while the rule will become effective on May 31, 2022, “[t]he availability [of premium processing] will be announced by USCIS in accordance with DHS premium processing regulations and will become available as stated at that time.” USCIS will maintain the flexibility to communicate:

  • Which requests for premium processing are available at any time;
  • The dates upon which availability commences and ends; and
  • Any conditions that may apply, including the possibility of establishing numerical limitations and suspending premium processing when necessary.

According to DHS, the new premium processing will be put into effect when the revenues exist to cover potential costs (such as hiring more staff) without adversely affecting other processing times. DHS will effectuate the new benefits “as soon as feasible.” Some will likely be available in FY 2022, but others may not become available until 2025.

Jackson Lewis attorneys will provide updates as they become available.