In December 2021, Congressional Democrats tried to include immigration reforms in the Build Back Better Act (BBBA). Some of the proposals would have helped unauthorized immigrants by providing those eligible with parole and work authorization. The bill also would have reduced green card backlogs and provided some applicants with expedited green cards for a fee. But the BBBA has not come to pass.

Now, Republican congresswoman, Maria Elvira Salazar (R-Fla.), along with other Republican sponsors, has introduced the Dignity Act as a “rebuttal” to the BBBA. In exchange for securing the border and making E-Verify mandatory, the Dignity Act proposes a solution for undocumented immigrants and reforms to the H-2A and H-2B temporary season worker visa programs.

Key provisions include:

  • A streamlined path to citizenship for Dreamers and TPS holders.
  • The Dignity Program itself gives other undocumented workers who meet eligibility requirements a chance to work in the United States for 10 years. This will require yearly payments of $1,000 to a job training fund for U.S. workers.
  • After 10 years, Dignity Program participants can enter an optional five-year Redemption Program that would provide a pathway to legal permanent residence and eventual citizenship. Under the Redemption Program, immigrants would have to learn English and civics, participate in local volunteer work, and pay an additional $7,500 restitution fee.
  • Expansion of the H-2A Agricultural Guest Worker program and support for the H-2B returning worker exception to help seasonal businesses fulfill their labor needs.
  • Funding to secure the border physically, implement border security technologies, and hire 3,000 new DHS border security personnel.
  • Establish Regional Processing Centers to house asylum applicants at the border and hire 1,700 new personnel to adjudicate asylum cases.
  • Mandate E-Verify nationwide.

Congresswoman Salazar’s bill is not supported by all Republicans, some of whom see the provisions as unacceptable “amnesty.” Some Evangelical leaders support the pathway to citizenship for Dreamers just as they supported those provisions in the BBBA. There may be Democrats who find some of the Dignity Act palatable, but none have signed on as sponsors. There will need to be bipartisan support.

Jackson Lewis attorneys will provide updates on the progress of this bill as they become available.

On February 4, 2022, the House of Representatives passed the American Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act  (known as the America COMPETES Act of 2022). The bill is aimed at “outcompeting China and the rest of the world in the 21st century.” Title III of the COMPETES Act adds immigration provisions to the bipartisan U.S. Innovation and Competition Act that was passed in the Senate in June 2021.

The immigration provisions in Title III include the creation of a W nonimmigrant visa for entrepreneurs with ownership interest in a start-up entity. Title III also provides STEM Ph.D. graduates seeking to work in the United States in a field related to such degree a direct path to Legal Permanent Residence (LPR) status.

W Nonimmigrant Visa

Title III creates a W nonimmigrant visa for entrepreneurs with at least a 10% ownership interest in a start-up that was formed in the 5-year period preceding application. Like the International Entrepreneur Rule (IER), the W visa has eligibility requirements regarding levels of investment from qualified investors and a showing that the applicant has knowledge and skills that would substantially assist the start-up. The W visa would allow an initial validity period of three years with the possibility of 3-year extensions and 1-year extensions if investments and job creation meet certain standards. One important difference from the IER is that the W visa allows nonimmigrants to have dual intent, meaning that W nonimmigrants would be able to apply for LPR if the enterprise meets additional investment and job creation levels. Unlike the proposed W nonimmigrant visa, there is no direct route to LPR from IER status, as IER admission to the United States is only a type of parole.

Benefits for STEM Ph.D.s

Foreign nationals with Ph.D.s STEM degrees, whether from the United States or foreign equivalent degrees, would be exempted from the annual green card limits. This would allow Ph.D.s to circumvent the immigrant visa backlog that so many Ph.D.s, especially those from India and China, face.

Applications for the W nonimmigrant visa, the W immigrant visa and the STEM immigrant visa would require an additional $1,000 supplemental fee that will be used to fund scholarships for U.S. STEM students.

The immigration provisions in the House bill could be transformative for entrepreneurs and those with Ph.D.s in STEM fields. But it must be reconciled with the Senate version. If the immigration provisions make it through that process and are passed by the Senate, the United States would take a big step toward increased competitiveness for foreign talent with other countries that make entry and permanent residence for select individuals much easier. Passage of the bill by the Senate would also be significant, as Congress has not passed major immigration reform in decades.

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

As of January 31, 2022, spouses entering the United States in L-2 or E status may be able to obtain work authorization at the border by asking Customs and Border Protection (CBP) to give them a “spousal” designation in their I-94 record. Because USCIS has not issued “official” guidance on this yet, requesting the designation may or may not be successful.

In response to extraordinarily long delays in obtaining employment authorization documents (EADs), USCIS announced some policy changes in November, including new guidance clarifying that L-2 and certain E spouses will no longer need EADs to work. L-2 and E spouses will be able to work incident to status. There was a condition precedent, however. Eligible spouses could not work incident to status until they obtained an I-94, Arrival/Departure Record, annotated to show that the bearer is an L-2 or E spouse so the I-94 could be used for I-9 Employment Eligibility Verification form purposes.

Reportedly, the guidance has been issued internally and, it seems, some CBP officers are annotating I-94 records while others do not even acknowledge having received any information about the change.

Given the current confusion, any spouses entering the United States in L-2 or E status who wish to work may want to ask for the annotation by requesting CBP admission as an L-2 or E spouse and receiving that “spousal” designation in their I-94 record. It is also advisable to travel with supporting documentation proving eligibility for the annotation on the I-9, such as a copy of the principal’s L or E visa (unless travelling together), marriage certificate, and a copy of the new guidance. This may or may not work, but it may be worth trying for those with scheduled travel, until the official policy is released.

If you have questions about the new policy, how and at which ports of entry it might currently apply, Jackson Lewis attorneys are available to assist.

Individuals hoping to complete their naturalization processes are being kept in limbo while their files sit in limestone caves.

The National Archives and Records Administration (NARA) has been the depository for “old” Alien Files (“A-Files”) for the entire United States and its territories for some time. A-Files contain all records of any active case of a foreign national not yet naturalized as they passed through the United States immigration and inspection process. According to NARA, these files “may include visas, photographs, affidavits, and correspondence leading up to an alien’s naturalization, permanent residence, death, or deportation.” They contain a wealth of biographical information and are used by researchers, advocacy groups, and genealogists among others.

In 2010, USCIS began the process of transferring A-Files of immigrants born more than 100 years ago to the NARA. Due to storage issues, USCIS has also transferred more recent A-Files to NARA. NARA keeps these files in Federal Records Centers (FRCs) that were built into miles of man-made limestone caves below Kansas City, Missouri. Generally, NARA would retrieve and provide these records upon USCIS request. Since the COVID-19 pandemic, the centers have been basically closed and have not yet fully reopened. The result: naturalization cases cannot be completed because USCIS cannot access an applicant’s A-Files. There are currently 350,000 pending requests from USCIS for records from NARA.

Representative Ted Budd (R-NC) received complaints from constituents who have applied to naturalize about the inability to get access to their files. He wrote to the White House and the Archivist of the United States asking NARA to reopen the FRCs to deal with the backlog problems. He noted that, as of September 2021, the FRCs were still closed or operating only at 20% capacity. Stating that other government workers had to stay at their posts during the COVID-19 pandemic or have returned to their offices, he opined that, due to the availability of vaccines, the FRCs “need to open to full capacity as quickly as is feasible.” NARA reports that staffing levels have been kept low (25%) because Kansas City is in “an area of high transmission.” It stated that it is working to increase access and allow USCIS to retrieve its own files.

NARA has urged USCIS to “change their processes and rely less on paper files to meet their mission. . ..” This is one of USCIS’ strategic, long-term goals: to transition from a paper-based environment to a digital environment and improve data accessibility. For now, those with A-Files in Missouri will have to wait until files can be physically retrieved from below Kansas City.

 

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.