The onset and persistence of the COVID-19 pandemic has only exacerbated the shortage of healthcare workers in the United States, especially in rural areas. Periodic spikes in infection levels has sped burn-out among healthcare workers. There are many foreign nationals who can and do fill these healthcare roles including those in Temporary Protected Status (TPS) and others covered by Deferred Action for Childhood Arrivals (DACA), individuals whose employment authorization derives from a separate Employment Authorization Document (EAD). However, tremendous processing backlogs at USCIS (of up to a year) to procure or renew an EAD have limited that availability. Recognizing the impact of these delays on foreign healthcare workers and the U.S. healthcare system, USCIS recently introduced a partial solution.

USCIS provides that healthcare workers with pending renewals (Forms I-765) can now request expedited processing where the worker’s current EAD must be expired or valid for only another 30 days or less. Those healthcare workers who qualify for this expedited route must appear on the DHS’ list of essential workers.

The list of essential healthcare workers appears on pages 7-9 of the DHS’ Advisory Memorandum on Ensuring Essential Critical Infrastructure Workers’ Ability to Work During the COVID-19 Response. The memorandum recognizes that it is essential for critical infrastructure workers to perform their jobs safely and securely throughout the pandemic. It identifies both covered essential industries and workers. The list of essential healthcare workers is extensive and includes COVID-19 researchers, various types of healthcare providers, and workers providing ancillary services (e.g., transportation, laundry, food services, and cybersecurity), certain vendors and manufacturers, home health workers, public health workers, and human services providers, among others.

To submit an expedite request, one should call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833). Individuals will need to provide evidence of their profession or their current employment as an eligible healthcare worker. Further, keep in mind that whether to grant an expedite request remains solely within USCIS’ discretion.

Please reach out to your Jackson Lewis attorney for any questions or advice regarding expediting EADs for essential healthcare workers.

USCIS has announced that H-1B Cap registration will start on March 1, 2022, at noon (Eastern) and will continue through noon (Eastern) on March 18, 2022.

If enough registrations to fill the cap are received by March 18 (which is likely), USCIS will randomly select registrations and send selection notifications through users’ myUSCIS online accounts. The intention is to notify all account holders by March 31, 2022.

Registrations can be done only electronically through a myUSCIS online account. The associated $10 H-1B registration fee for each beneficiary also will be paid through that account.

Registrations may be accomplished by the employers themselves or their attorneys (representatives). Employers preparing their own registrations are known as “registrants.” Registrants will be able to create new myUSCIS accounts beginning at noon (Eastern) on February 21, 2022. Duplicate registrations for a prospective employee will lead to rejections, so it is important not to duplicate efforts.

Attorneys/representatives may add clients to their accounts at any time, but both attorneys and registrants must wait until March 1 to enter beneficiary information and submit the fee. As in the past, multiple beneficiaries can be entered in a single online session. Draft registrations may be drafted, stored, and edited prior to final payment and submission of each registration.

Full cap-subject H-1B petitions, including for those who are eligible for the advanced degree exemption, may only be filed for beneficiaries selected through the online registration process.

The reasons for cap cases abound. For example, many cap cases are for F-1 students who wish to change status to H-1B. Others include individuals in such visa statuses as L or TN who wish to extend their time in the United States. The time to start planning is now!

Jackson Lewis attorneys are available to assist in this year’s process and advise on strategies for selecting employees and prospective employees who are eligible for submissions.

Manufacturing companies looking for creative solutions to build the talent pool, especially to fill more skilled positions, should consider the TN work visa, a type of work visa available to citizens of Mexico and Canada. For further analysis and insight, please see our article here.

USCIS’s new guidance for O-1 petitions provides a detailed overview of the different O-1 classifications: O-1A, O-1B Arts, and O-1B Motion Picture and Television (“MPTV”). The guidance also provides detailed standards for adjudicating O-1 petitions under each O-1 classification and the use of comparable evidence to satisfy one or more O-1 criterion.

For example, the guidance expands the applicability of the O-1B MPTV category to encompass “streaming movies, web series, commercials and other programs with formats that correspond to more traditional motion picture and television productions.” The O-1B MPTV category, according to USCIS, is also proper where the “beneficiary will perform services for a motion picture or television productions while in the United States” even if the beneficiary will also be engaged in artistic services outside of the MPTV industry. Therefore, employers and agents wanting to sponsor artists will need to carefully assess the artist’s portfolio of work and every proposed engagement in the United States to determine whether they fall within the O-1B MPTV, which carries more stringent consultation requirements than the O-1B Arts counterpart.

Further, the guidance discusses the terms “field” and “area of extraordinary ability,” for which there is no statutory or regulatory definition. USCIS has expanded its understanding of these terms to encompass “multiple related occupations” that involve “shared skillsets, knowledge, or expertise.” This is welcome news for individuals whose work or portfolio does not neatly fall into one occupational classification if they can demonstrate the relatedness of the different occupations.

The guidance also clarifies how the agency will determine whether the beneficiary satisfies the relevant O-1 “extraordinary ability” or “extraordinary achievement” regulatory definition. According to USCIS, “the fact that the petitioner has produced evidence satisfying at least three evidentiary criteria does not necessarily establish that the beneficiary is eligible for the O-1 classification.” Instead, USCIS will determine eligibility based on the “totality of the evidence.” This resembles the standard used by USCIS to evaluate eligibility under the O-1’s immigrant visa counterpart, the EB-1A classification, that was litigated and resulted in the U.S. Court of Appeals for the Ninth Circuit’s decision in Kazarian v. United Citizenship and Immigration Services, 596 F.3d 1115 (9th Cir. 2010). Until now, it was unclear whether USCIS applied the same two-step Kazarian analysis used by the agency in EB-1A petitions to O-1 petitions.

Therefore, the evidentiary burden on individuals seeking O-1 classification may be higher as they must produce evidence and persuade USCIS that this evidence demonstrates the beneficiary’s “extraordinary ability” or “extraordinary achievement.” On the other hand, the use of comparable evidence has been expanded where the petitioner explains “why a particular evidentiary criterion listed in the regulations is not readily applicable to the beneficiary’s occupation, as well as why the submitted evidence is ‘comparable’ to that criterion.”

Surprisingly, the guidance references specific examples and sources that petitioners and beneficiaries may rely on to demonstrate O-1 eligibility. For researchers, this includes references to impact factors and h-indexes. For sales and marketing professionals, this includes how their presentation at a trade show may be considered comparable evidence of a “scholarly publication.” Finally, throughout, particular emphasis is placed on how the guidance is relevant to beneficiaries in STEM-related fields.

The new guidance will impact how USCIS adjudicates O-1 petitions in each classification in various ways. The guidance expands the scope of candidates who may qualify for an O-1 visa under each classification. But it also increases the evidentiary requirements to qualify for an O-1 visa. Jackson Lewis attorneys are available to discuss and help assess whether the O-1 visa may be an appropriate option for you or your business.

 

 

The Social Security Administration (SSA) has reached an agreement with three of its unions on its COVID-19 re-entry plan.

SSA offices have been essentially closed to the public since March 2020. That affected SSA’s ability to resolve E-Verify Tentative Nonconfirmations (TNCs) due to a no-match between a person’s name and Social Security Number. The result has been that TNCs due to a Social Security no-match have remained unresolved in some cases for over one year.

E-Verify policy requires employers to notify employees of a TNC within 10 federal government workdays. If the employee decides to contest the TNC, the employee has eight federal government days to respond by reaching out to SSA (or, in some cases, to the Department of Homeland Security (DHS)). If the employee is successful, SSA or DHS will update its records and the case in E-Verify. Generally, it should take the government about two federal government days to update the records.

Early in the pandemic, E-Verify relaxed the timing standards regarding TNCs as government closures created an inability to resolve any type of TNC. This relaxation continued until November 2020, when most agencies reopened. Since then, employers have been required to follow the usual timelines.

The problem is that, despite the government’s decision to reinstate its usual timing rules, SSA remained closed to the public. We now know that was due, at least in part, to union negotiations. Some employers reportedly have been waiting for up to a year for SSA TNCs to be resolved, despite multiple attempts to reach SSA. This has created confusion and potential compliance issues because employers cannot take any action to resolve the problem, cannot terminate an employee who is contesting the TNC, and yet the employers remain subject to possible penalties for failure to close a TNC case.

As SSA opens its doors to the public, perhaps the backlogs will begin to resolve.

If you have questions about TNCs, Jackson Lewis attorneys are available to advise you on how to respond to TNCs or to a notice from E-Verify regarding possible TNC non-compliance.

As of January 22, 2022, all non-U.S. individuals seeking entrance to the United States at land or sea ports of entry on the Mexican or Canadian borders must be “fully vaccinated” and provide proof of such. There is no longer an exception for “essential” travel. The requirement does not apply to U.S. individuals, i.e., U.S. citizens, Lawful Permanent Residents, or U.S. nationals.

Non-U.S. individuals (with few exceptions) seeking entry must:

  • Attest to their COVID-19 vaccination status; and
  • Provide proof of vaccination as outlined on the CDC website.

A negative COVID-19 test is not required at land or sea borders.

On the other hand, non-U.S. individuals flying to the United States from Canada or Mexico (like those flying from other international destinations) must be fully vaccinated and present a negative COVID-19 result from a test taken no more than one day before departure. An individual who has recovered from COVID-19 within the past 90 days may present instead of a negative test, evidence of a positive COVID test (taken within 90 days of departure), along with a letter from a healthcare professional stating that the individual is cleared for travel.

The testing requirement applies to everyone 2 years of age and older while the vaccination requirement excepts children under the age of 18.

The northern and southern borders opened to fully vaccinated foreign nationals in November 2021. That was the first time since March 2020 that individuals could enter for non-essential purposes, including tourism and visits with family members.

Now that the borders are open again for tourism, it is important to make sure that individuals who enter do not overstay and start accruing unlawful presence. Unlawful presence of 180 days or more can result in three- and ten-year bars to re-entry. Due to general flexibility at the Canadian border, not all Canadians who enter can find I-94 data alerting them to their approved length of stay in the United States on the official site where that documentation can be retrieved. The CBP Chief Counsel has confirmed that Canadians can accrue unlawful presence even if they are not issued I-94 documentation. In that case, staying for 180 days or more can result in a bar. Canadians must therefore be aware of and abide by that 180-day limit.

Jackson Lewis attorneys are available to assist in determining the travel restrictions that apply, if there are any available exceptions, and provide advice regarding length of stay regulations.

 

For the first time, USCIS has advised people with a pending green card application of its documentary requirements for transfers between employment-based classifications and issued an alert regarding the process.

The “exceptionally high number of employment-based [immigrant] visas available this fiscal year” has prompted USCIS to encourage U.S. employers petitioning for employees to utilize either the first or second employment-based preference categories. This is a big change from one-and-a-half years ago.

In October 2020, the government inverted the availability of immigrant visas, making several hundred thousand, mainly Indian, employees in the U.S. eligible to apply for a green card based on the employment-based third preference category. For this blog, the focus is on the second and third employment-based visa classifications. The second employment-based preference category (EB-2) is for employees with an advanced degree or a bachelor’s degree and at least five years of progressive experience in their profession, or those with “exceptional ability.” The third employment-based preference category (EB-3) is for employees with at least a bachelor’s degree (as well as certain skilled or unskilled workers).

USCIS also strongly encourages people with a pending green card application in the EB-3 category to transfer the underlying basis of their pending green card (adjustment of status) application to the EB-2 category if they are eligible to do so — meaning they have an approved or pending Immigrant Petition for Alien Worker in the EB-2 classification (USCIS Form I-140). This process of transferring the underlying basis of a green card application, also called “interfiling,” has been misunderstood. Although USCIS lays out guidelines for an interfile request in its Policy Manual, the agency has not previously provided specific documentary requirements for transfers between employment-based classifications. Now, USCIS clearly declares that an interfile request must be made in writing and must include USCIS Form I-485 Supplement J.

Form I-485 Supplement J has two uses: one is for “Confirmation of Bona Fide Job Offer,” the other is “Request for Job Portability Under INA Section 204(j).” When an applicant files an I-485 J to change the underlying basis of a green card application or interfile, they are using the I-485 J as a Confirmation of Bona Fide Job Offer. What is the job offered? That is the one in the PERM labor certification that was the basis of the employer’s petition for an immigrant worker, Form I-140.

This means that if someone has changed employers after applying for their green card (and followed regulations regarding portability of the permanent job offer), their new employer cannot file an I-485 J to change the underlying basis to a prior employer’s I-140 petition in EB-2 classification. Interfiling is not an option for this employee, as their new employer did not file their EB-2 petition; a prior employer did. There are other circumstances when interfiling is not an option, and other cases when an I-485 J may be required for a different purpose.

Jackson Lewis attorneys are available to discuss the situation of your employees with pending green card applications and help to determine if interfiling is appropriate and prepare the correct documentation for that request.

 

For early-stage tech employers, rapid business growth can quickly lead to costly employment and immigration law missteps. Risks can be magnified when striving to attract talent. Please listen to the robust and enlightening discussion among Jackson Lewis immigration attorneys Zain Abidi and Benjamin Lau, together with Jackson Lewis employment attorney Doug Klein, here.

As 2021 comes to an end, the White House and the Department of State have announced:

  1. South African Travel Restrictions Lifted.

The 14-day travel restrictions on southern African countries will be lifted as of midnight on December 31, 2021. Adopted on November 29th, the restrictions based on spread of the COVID-19 Omicron variant have been in effect for travelers from Botswana, Eswantini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. The requirements that all travelers to the United States, unless otherwise excepted, must be fully vaccinated and present a negative COVID-19 test taken within one day of travel remain in effect.

  1. New Waivers of In-Person Visa Interviews.

To help ease the nonimmigrant visa backlogs, consular officials will have the discretion to waive in-person interview requirements for some with H-1, H-3, H-4, L, O, P, and Q USCIS-approved petitions until the end of 2022. The eligibility requirements for those who were previously issued a visa in the same category are:

  • No visa refusals, unless the refusal was overcome or waived
  • No apparent or potential ineligibility
  • Must be applying in their country of nationality or residence

For those applying for the first time for the visa category:

  • Must be a citizen or national of a Visa Waiver country
  • No apparent or potential ineligibility
  • Previously travelled to the U.S. on ESTA

The discretionary interview waiver has also been extended until the end of 2022 for certain students, professors, research scholars, short-term scholars, or specialists (e.g., F, M, and academic J applicants), for those applying for H-2 (temporary agricultural or non-agricultural) visas, and for those who are renewing any visas within 48 months of expiration.

Because consular resources and COVID-19 restrictions vary, applicants should check the relevant embassy or consular website to confirm available services.

  1. Expired U.S. Passports Can Still Be Used.

Citizens can continue to use expired U.S. passports to return to the U.S. until March 31, 2022. To be eligible, the individual must:

  • Be a U.S. citizen
  • Be currently abroad
  • Be flying directly to the United States, a U.S. territory, or have only a short-term transit, or connecting flight, through a foreign country on their return to the United States
  • Have been issued and possess an expired, undamaged passport that was originally valid for 10 years or, if 15 years of age or under when the passport was issued, the original validity must be for five years

Jackson Lewis attorneys are available to advise you on these new procedures. We wish you a happy new year!

The City Council of New York City unanimously passed legislation giving non-U.S. citizens the right to vote in local elections starting on January 9, 2023.

The bill grants this local franchise to 800,000 non-citizens if they are Permanent Residents or have work authorization and have been in residence in the City for at least 30 days. The bill does not allow non-citizens to vote in state or federal elections.

Some who support the legislation question its constitutionality, and the bill will likely face court challenges. Beyond that, the bill is controversial even in the pro-immigration community. Some proponents believe that granting the right to vote in local elections gives immigrants more of a voice and, therefore, more of a stake in the community. Others believe that, because the right to vote is a major reason to obtain citizenship, giving immigrants the right to vote in local elections might suppress their desire to become U.S. citizens.

With the passage of this legislation, New York City joins 15 other municipalities in New York state, Maryland, Vermont, and San Francisco that allow noncitizens to vote in local elections. Similar bills are being considered in Illinois, Maine, and Massachusetts.

Any immigrants who plan to register and vote in local elections pursuant to such laws need to understand the parameters. They may not register to vote or vote in any federal, state, or local elections not covered by the specific legislation. Doing so can result in immigration problems – particularly with applications for permanent residence (Green Cards) or naturalization, which ask applicants about falsely claiming to be a U.S. citizen and registering to vote in elections, respectively.

Although registering to vote or voting in an election where non-citizens are eligible to do so is not an immigration violation, it is important for non-U.S. citizens to carefully review any forms they are signing to be sure they are not asserting they are U.S. citizens. They should also take care to not vote in any election that requires U.S. citizenship.

Jackson Lewis attorneys are available to assist with any questions about Green Card or naturalization eligibility and applications.