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.

Just as the Biden Administration is proposing increased funding for USCIS to help reduce the agency’s backlog, USCIS is announcing  future new actions to improve processing times.

USCIS:

  1. Plans to expand staffing, improve its technology, and establish new internal cycle time goals (the amount of time it takes to process a typical case). As the cycle times reduce, so should the backlogs. New cycle time goals include: two months for I-129 forms (Petitions for Nonimmigrant Workers), three months for forms I-765 (Application for Employment Authorization), I-131 (Advance Parole), and I-539 (Application to Extend/Change Nonimmigrant status), and six months for forms I-485 (Application to Register Permanent Residence or Adjust Status) and I-140 (Immigrant Petition for Alien Worker). All of this will be without premium processing which currently costs an additional $2,500 in filing fees.
  2. Will introduce the optional premium processing service for more types of forms, including I-765s, I-539s, and I-140s for Multinational Executives and Managers and National Interest Waivers. Congress gave USCIS the ability to do this in 2020, but advocates have been waiting since then for the USCIS to implement the new premium processing by setting out the specific fees and adjudication times for each new type of process. It seems that this is now happening. USCIS has said the new premium processing will be phased in starting with the I-140s. The premium processing filing fees for these additional forms will be in the $1,500 to $2,500 range.
  3. Will introduce a new rule: Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants. The agency has already begun streamlining EAD processes and providing some expedited renewals for healthcare and childcare workers. USCIS plans to build on this to ensure that individuals do not experience gaps in employment authorization.

Once implemented, these measures should provide needed relief for employers and employees who have been struggling with long processing delays and gaps in employment authorization. If you have questions about the new goals and processes, Jackson Lewis attorneys are available to assist and will provide updates as they become available.

The United States has joined many European countries that are opening their doors and offering humanitarian assistance to fleeing Ukrainians.

Ireland, Great Britain and Canada have all started private sponsorship programs for Ukrainians. That assistance is not necessarily a one-way street. Easing the way for incoming Ukrainians may help those nations deal with their own labor shortages.

Ukraine is known for its skilled workforce, including tech engineers, and some companies in Europe are specifically targeting jobs for Ukrainians, offering everything from language training to child care to attract the refugees. Even temporary employment agencies are involved and new companies are being founded for the purpose of matching Ukrainians to jobs across Europe – jobs that run the gamut from highly skilled tech work, to healthcare aids, to retail and hospitality positions.

U.S. employers are generously offering humanitarian aid and donations to help Ukrainian refugees, but now those employers may be able to offer jobs to displaced Ukrainians seeking refuge. The Biden Administration will open various legal pathways that could include the refugee admissions program (which can lead to permanent residence through asylum, but is a long process), visas, and humanitarian parole (a temporary solution). The focus will be on Ukrainians with family in the United States or others considered to be particularly vulnerable. Approximately 1,000,000 people of Ukrainian descent currently live in the United States.

The administration originally believed that most Ukrainians did not want to flee to the United States because it was too far away from other family members who have remained in Ukraine. Secretary of State Antony Blinken had stated that the priority was to help European countries who are the dealing with huge waves for migration instead. But advocates have been arguing that the administration could create special status for Ukrainians to allow them to enter the U.S. or stay with family members.

In early March, the Biden Administration established Temporary Protected Status (TPS) for Ukrainians who have been in the United States continuously since March 1, 2022, but that did not help those who are still abroad. Visitor visas are hard to come by because applicants for visitor visas need to be able to show that their stay will be temporary and that they have a home to return to in Ukraine, and such temporary nonimmigrant visas may not meet that criterion or be practical in most of these situations. Moreover, consulates abroad are already overwhelmed and understaffed due to COVID-19.

While small numbers of Ukrainians have made it to the United States by finding private or family sponsors, this new policy should at least open the doors to some Ukrainians and likely make it possible for U.S. companies to hire some of the incoming refugees. They will need and want employment, but they will also need support.

Jackson Lewis attorneys will provide updates regarding employment options as they become available.

Recognizing the importance of STEM (Science, Technology, Engineering, and Math) graduates to the U.S. economy, the Biden Administration has made three policy changes that expand eligibility.

The changes are as follows:

  • Adding 22 new degree fields to the STEM list so that more F-1 graduates can qualify for three years, instead of one year, of optional practical training (OPT);
  • Making STEM students in J-1 exchange visitor status likewise eligible for 36 months of OPT up from 18 months; and
  • Broadening eligibility for National Interest Waiver Immigrant (NIW) visas for those in STEM fields.

The new degree programs added to the STEM list include academic fields such as bioenergy, human-centered technology design, climate science, mathematical economics, data visualization, and various analytics fields previously not considered to be STEM fields: business analytics, financial analytics, and data analytics.

Granting F-1 and J-1 students, many of whom graduate with Ph.D. degrees, more OPT provides them more time to make important contributions to U.S. companies, universities, and non-profit institutions. In addition, knowing that this amount of training is available makes choosing U.S. colleges and universities more attractive. It also reduces the “brain drain” in the United States. Students who receive advanced training in this country and become more established in this country will be less likely to want to leave and bring their earned expertise to other countries.

To keep them in the United States, however, these students need a path to H-1B visas or permanent residence (“green cards”). The three years of STEM training provides some students more opportunities to “win” the H-1B lottery. Clarifying how the NIWs can be used by STEM graduates to gain legal permanent residence, without having to do a labor test to prove their employment will not adversely affect U.S. workers, also breaks down barriers.

To obtain an NIW, an applicant must prove three factors: 1) show that the proposed endeavor has both substantial merit and national importance; 2) show that the applicant is well-positioned to advance the endeavor; and 3) show that it would be beneficial to the United States to waive a job offer and, thus, the labor market test. To meet third factor, the new policy “recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.” Adding 22 new STEM fields potentially expands eligibility.

For more information on how to utilize the new policies, please reach out to your Jackson Lewis attorney.

As of May 1, 2022, employers can no longer accept expired List B documents for Form I-9 Employment Eligibility Verification purposes, and any expired List B documents that were previously accepted must be updated by July 31, 2022.

Allowing employees to present these expired documents was a temporary policy instituted by the Department of Homeland Security in May 2020 to deal with the fact that various issuing authorities were not able to timely renew documents due to the COVID-19 pandemic. Now that issuing authorities are returning to more normal operations, this temporary policy is coming to an end.

If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, the Form I-9 must be updated by July 31, 2022.

Here are the requirements:

If the employee who presented an expired List B document is still employed, the employee must provide an unexpired document that establishes identity. This could be a renewed version of the expired List B document that was previously presented, a different unexpired List B document, or an unexpired List A document that establishes both identify and work authorization.

Upon presentation, the employer should enter the following information about the new document in the Additional Information Field of Section 2 of the Form I-9: title, number, issuing authority, and expiration date. The employer should then initial and date that section of the form.

If the employee is no longer employed by the company, no action is necessary.

DHS has noted that, if the List B document that was initially presented was automatically renewed by the issuing authority when it was presented, then no action is necessary because the document was not considered to be expired.

As of this writing, eligible employers may still review Form I-9 documents virtually, over video link, or by fax or email. This flexibility continues until an employee undertakes non-remote employment on a regular, consistent, or predictable basis, or until the policy terminated. That flexibility has been continued until April 30, 2022. Many have requested that DHS continue this policy indefinitely because remote work continues to play an important role in the workplace, even as companies return to more normal operations. Whether the end of the policy regarding expired List B documents signals that the DHS will also end I-9 flexibility is yet to the seen.

If you have questions about the presentation of expired documents or Form I-9 flexibility, Jackson Lewis attorneys are available to assist.

 

As the cap H-1B registration process for fiscal year (FY) 2023 closes, and the lottery is about to begin, this might be a good time to look back at the results of the cap registrations from past fiscal years.

In FY 2020, 274,237 H-1B registrations were filed and 124,415 were selected to fill the 85,000 spots. That is a 45% selection rate overall:

  • USCIS initially selected 106,100
  • USCIS conducted a second round in August 2020 and selected an additional 18,315

In FY 2021, 308,613 registrations were filed and 131,970 were selected, meaning a 32% selection rate overall:

  • USCIS initially selected 87,500
  • USCIS conducted a second round in July 2021 and selected an additional 27,717
  • USCIS conducted a third round in November 2021 and selected an additional 16,753

USCIS determines the number of registrations it will accept based on historical data about the number of petitions that must be selected and adjudicated to fill the 85,000-cap limit. But, since 2020, there have been circumstances that seem to have changed the calculations – leading USCIS to conduct additional selections.

Some critics of the electronic registration system have suggested that, because registrations are so easy and inexpensive, additional registrations are filed by petitioners to increase the chance of selection and not all those selected result in filed petitions. Others have suggested that more than one company files for the same individual (sometimes in a coordinated effort) and, ultimately, if selected more than once, only one petition is filed.

This year, perhaps in light of those criticisms, USCIS is focusing on petitioners who might be attempting to unfairly increase the chances of selection by gaming the system.

A certification has been added to the 2023 registration process stating:

I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If USCIS discovers the attestation was false, it will find that such registrations were not properly submitted and, therefore, are ineligible. Denials or revocations also could follow, and false attestations could lead to appropriate investigations.

Of course, COVID-19 has also been a factor since 2020 and some registrations may have been (and may still be) submitted this year (and selected) that do not result in petitions filed because petitioners’ financial circumstances and conditions change and the potential H-1B employee may no longer be needed. Legitimate changes in circumstances should not result in investigations, but employers should be prepared to explain why a selected registration did not result in a petition filed, especially if there are more than a few such instances for any single company.

If you have any questions about the cap process or the new attestation, Jackson Lewis attorneys are available to assist you.

Afghans who are already residing in the United States will be eligible for Temporary Protected Status (TPS), according to an announcement from the Department of Homeland Security (DHS). This designation will protect more than 74,000 Afghans from returning to unsafe conditions in their homeland.

DHS Secretary Alejandro N. Mayorkas stated that this would protect Afghan nationals who are already living in the United States and “will also provide additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years.”

To be eligible for the 18-month initial grant of TPS, Afghan nationals must be already residing in the United States as of March 15, 2022. Similar to the recent grant of TPS to Ukrainians, anyone arriving from Afghanistan after the announced date will not be eligible. Individuals who arrived in the United States as part of the evacuation effort through Operation Allies Welcome were paroled in the United States on a case-by-case basis for a period of two years. These individuals may also be eligible for the new grant of TPS and employment authorization. As always, TPS applicants will have to undergo security and background checks.

The TPS grant for Afghanistan will go into effect upon publication in the Federal Register. When published, the notice will provide instructions on how to apply for TPS and for Employment Authorization.

Jackson Lewis attorneys are available to assist you with questions about this new grant of TPS.

A series of significant developments in U.S. immigration law has already marked the beginning of 2022 and more can be expected.  Please see our Legal Update for what to anticipate as the year progresses.

Congress is set to pass Omnibus spending legislation that includes reauthorization of the EB-5 Immigrant Investor Regional Center Program, which has been suspended since June 2021.

The Regional Center Program allows eligible investors to apply for green cards if they make the necessary monetary investment and create or preserve at least 10 permanent full-time jobs for U.S. workers – even if those jobs are created indirectly. Regional Centers provide a unique opportunity to foreign investors, granting them access to high-profile developments in the United States they otherwise would not be able to invest in, with the added bonus of a green card for themselves and their immediate family members. Most Regional Center offerings are available at the lower minimum investment amount of $800,000, as they invest in areas identified by the Department of Homeland Security (DHS) as rural or distressed urban or in certain infrastructure programs. A project outside of these defined parameters will cost an EB-5 investor the higher minimum investment amount of at least $1,050,000.

The new legislation re-emphasizes enforcement procedures USCIS has focused on for the last decade: recordkeeping, notice, audits, and site visits. Focused enforcement of these areas gives investors added comfort that their investment funds are being used properly. Moreover, only DHS will have the authority to designate targeted employment areas. A census tract calculation was used to determine these in the past.

When the Omnibus legislation passes, USCIS is expected to start processing applications that have been pending. As existing investors begin receiving adjudications, new investors are encouraged to file sooner, rather than later, to reserve their spot in the notorious processing queue at the USCIS Immigrant Investor Program office.

Applying for a green card through the EB-5 program is a complex process and requires careful planning when choosing the appropriate project and in the sourcing of an investor’s funds. Jackson Lewis attorneys are available to assist in developing appropriate strategies and filing these applications.

USCIS has increased the evidentiary burden for petitions for the O-1 Extraordinary Ability visa to mirror that for the EB-1 Extraordinary Ability visa.

Both the O-1 nonimmigrant and EB-1 immigrant visa classifications remain important and flexible methods of sponsoring outstanding talent in the United States. Unfortunately, USCIS backlogs and processing delays persist, and availability of other visa categories is limited, making O-1 and EB-1 visas even better alternatives for companies to employ foreign talent. That they can provide a speedier path to permanent residence also can be a highly coveted recruitment and retention tool.

An uptick in particularized challenges to individuals seeking O-1 Extraordinary Ability classification can be traced to a change by USCIS. A memorandum issued on January 21, 2022, by USCIS confirmed that it has overhauled its approach to adjudicating O-1A Extraordinary Ability and O-1B Extraordinary Achievement visa petitions. While the guidance helps spell out the path to qualifying for O-1 classification, it also increases the evidentiary burden in O-1 visa petitions to mirror the agency’s approach to adjudicating EB-1A Extraordinary Ability petitions.

USCIS relies on a two-part analysis set out in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Step one evaluates whether the petitioner has simply presented evidence satisfying three criteria. In step two, the petitioner must persuade the government that the evidence actually demonstrates outstanding achievement as compared to relevant peers. Here are some of key considerations in evaluating the viability of an O-1 or EB-1 petition:

  • An individual’s “field” must be carefully defined and clearly articulated. Critical but often overlooked, petitions should include a carefully defined field that is clearly articulated frames the evidence in the light most favorable to the petitioner or applicant and in a manner that is easily understood by a reviewing officer.
  • The Significant and Original Contribution criterion always should be argued. The petitioner is expected to provide objective evidence (i.e., work product) and subjective evidence of significance (i.e., recognition in the field). Providing a robust argument that an individual has made original contributions of major significance to their respective field can help mitigate the chance of receiving an Request for Evidence or a Notice of Intent to Deny from USCIS.
  • Testimonial letters must be specific. Carried over from the prior administration, dismissing the probative value of testimonial letters submitted to corroborate the achievements of an individual continues. As this is one of the most important pieces, and sometimes the only piece, of evidence a petitioner can provide to corroborate an individual’s contribution or achievement in their field, it is critical that testimonial letters must be carefully drafted with specificity, describing in detail (1) the individual’s achievement and (2) why it  represents a significant development.
  • Published Materials are vital evidence for EB-1B Outstanding Researchers. Petitioners should keep in mind that the EB-1B Outstanding Researcher visa classification differs slightly in regulatory criterion and overall eligibility standard from both O-1 and EB-1A visa petitions. The EB-1B requires petitioners to show “international recognition” for outstanding research in the field. In addition to the considerations above, Outstanding Researcher petitions should include a robust record of peer citation to the individual’s work and specific references to the individual and their work in trade publications and online media. These are a crucial method of demonstrating that the individual’s research has been widely recognized in their respective field.
  • Individuals in STEM-related fields have an advantage. USCIS typically take a favorable look at accomplished individuals in STEM-related fields because STEM workers play a key role in sustained growth and stability in the U.S. economy.

Jackson Lewis attorneys are available to assist in evaluating, preparing, and filing petitions for outstanding researchers and individuals with extraordinary ability.