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.

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.