Each year, 85,000 new H-1B visas become available to U.S. employers seeking to sponsor foreign national workers in “specialty occupation” positions across all industries. These 85,000 new H-1B visas are available in three distinct tranches:

• 58,200 visas are available under the Regular Cap for foreign nationals who qualify for the H-1B classification by having a minimum of a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a U.S. Bachelor’s degree.
• 20,000 H-1B visas are available under the advanced degree exemption, commonly known as the Master’s Cap, for foreign nationals who have earned a Master’s (or higher) degree in the U.S.
• 6,800 visas are allocated to the H-1B1 visa category which is available to citizens of Singapore (5,400) and Chile (1,400).

Each year the demand for new H-1B visas in the first two tranches exceeds the number available. As a result, the U.S. Citizenship & Immigration Service (USCIS) allocates the new H-1B visas in these two tranches using a computer-based lottery system, selecting H-1B Cap Registrations submitted through USCIS’ online portal, myUSCIS. The last tranche of 6,800 H-1B1 visas has historically been under-utilized and remains available throughout the fiscal year. Unused visas from this tranche become available for H-1B use in the next fiscal year.

The lottery process for the Master’s Cap and Regular Cap visas is run in two steps. The first lottery selects enough H-1B registrations to satisfy the Regular Cap from a pool that includes both Regular and Master’s Cap H-1B registrations. The second lottery selects enough H-1B registrations to satisfy the Master’s Cap from H-1B registrations eligible for the Master’s Cap that were not selected in the first lottery. Because foreign nationals who have earned a U.S. Master’s degree can qualify for selection under both the Master’s and Regular Cap lotteries, they have a higher likelihood of selection in the H-1B lottery overall.

In 2022, the USCIS will accept Fiscal Year 2023 H-1B Cap Registrations between March 1st and noon on March 18th. At the end of March, USCIS will conduct the two lotteries and selected registrations will be identified in employer and attorney myUSCIS accounts. Once notified of selection, the employer has 90 days to prepare and submit an H-1B visa petition to the USCIS. If the H-1B visa petition is approved, it will become effective on October 1, 2022.

The current online registration system allows USCIS to more precisely track the number of selected H-1B registrations that result in a filed and approved H-1B visa petition. As a result, in the past two years, USCIS has been able to determine that not all available H-1B visas have been used and has run additional lotteries. In 2020, USCIS ran one additional lottery in August to meet the Fiscal Year 2021 Cap. In 2021, USCIS ran two additional lotteries in July and November respectively to meet the Fiscal Year 2022 Cap and ensure that as many of the available H-1B visas as possible are used. Of course, the number of H-1B registrations selected in these subsequent lotteries is much lower than in the initial March lottery.

Foreign national workers who are subject to the H-1B cap are those who have not previously held H-1B status or had their registration selected in the lottery. This typically includes:

• F-1 foreign students who have graduated and are employed pursuant to OPT employment authorization or who are graduating this Spring.
• J-1 foreign scholars or researchers.
• Foreign nationals in other nonimmigrant statuses that present intent or timing challenges for green card sponsorship (TN, H1B1, L-1 from countries subject to Immigrant Visa backlogs, and others).
• Foreign nationals in derivative H-4 or L-2 status with employment authorization which is tied to the continuing status of their H-1B/L-1 spouses.
• Foreign nationals who are currently living outside of the U.S.

A foreign national’s eligibility for H-1B status is not a prerequisite of registration for the H-1B lottery in March. Eligibility must be established at the time of filing the H-1B petition. As noted above, once a registration is selected in the lottery on April 1st, the sponsoring employer has 90 days to file an H-1B visa petition on behalf of the foreign national worker. Practically, this means that if an employer is sponsoring a worker in the Master’s Cap, then the worker must complete the Master’s degree (or a higher degree) on or before the date that the H-1B visa petition is filed – which, under the 90-day rule, can be as late as the end of June – in order for the H-1B petition to be approvable. If the worker will not have the Master’s (or higher) degree by the time that the H-1B petition must be filed, then they would have to be registered for an H-1B in the Regular Cap lottery based on completion of a foreign or U.S. Bachelor’s degree or its equivalent. In the case that an employer is sponsoring a foreign national worker who has not yet completed their Bachelor’s-level studies, the sponsored worker must similarly complete all degree requirements by the time of filing the H-1B petition, within 90 days of April 1st, to qualify for H-1B status under the Regular Cap.

Finally, an employer may submit only one registration for each foreign national worker – if an employer submits more than one registration for the same worker, the USCIS will reject all registrations for that worker as duplicates.

As noted above, the H-1B Cap Lottery system opens on March 1st and closes two and a half weeks later on March 18th. Now is the time to review your existing foreign national employees to see if any would be a good candidate for the H-1B visa and if your company and the employee would benefit from their having this status. Please contact your Parker Gallini attorney to discuss any questions you have about the H-1B program.

New Immigration Policy Impacting Sponsorship in STEM Fields

In line with the Biden Administration’s commitment to remove barriers to legal immigration and promote economic growth, the U.S. Department of Homeland Security (DHS) is taking action to improve immigration pathways for foreign nationals engaged in STEM (science, technology, engineering, and mathematics) fields. To date, major changes include:

Expanded Availability of STEM OPT

12 months of Optional Practical Training (OPT) is available to foreign students earning baccalaureate and graduate degrees in the U.S. In addition, foreign students earning degrees in designated STEM fields are eligible for an additional 24 months of full-time Post-Completion OPT and STEM OPT work authorization after completing a qualifying degree program. As of January 2022, DHS has added 22 new fields of study to the STEM OPT Designated Degree Program List, including emerging and multidisciplinary fields such as Cloud Computing, Human-Centered Technology Design, Climate Science, Data Science, and Mathematical Economics.

Updated Guidance on USCIS Assessment of O-1A and NIW Petition Evidentiary Requirements

DHS has updated the U.S. Citizenship and Immigration Services (USCIS) Policy Manual to clarify evidentiary requirements to establish eligibility for nonimmigrant classification in the O-1A category based on “extraordinary ability” and national interest waivers (NIWs) of immigrant petition requirements for foreign nationals with advanced degrees in STEM fields and entrepreneurs.

In particular, in the O-1 context, USCIS now provides specific examples of qualifying evidence to support nonimmigrant petitions in STEM fields and has more clearly defined the process for assessing the totality of evidence submitted in support of these petitions. For example, the USCIS Policy Manual now confirms that “evidence of published material about a beneficiary’s work” need not be singularly focused only on the work, but at a minimum must include “a substantial discussion of the beneficiary’s work in the field.” This guidance directly addresses a conclusion that USCIS commonly asserted in past O-1 denials – that “brief citations or passing references” were insufficient to establish extraordinary ability. This new standard provides a concise explanation what level of reference in a publication does satisfy regulatory criteria.

With regard to NIWs, USCIS has issued expanded guidance regarding the existing three-prong adjudicatory framework for assessing requests to waive labor market tests and job offer requirements, including special considerations for STEM endeavors and new applications of this framework for entrepreneurs. USCIS evaluates NIW requests based on an assessment of whether the intending immigrant’s proposed endeavor: (i) has substantial merit and national importance; (ii) the intending immigrant is well positioned to advance the endeavor; and (iii) on balance, the U.S. will benefit from waiving labor market testing and job offer requirements. In the newly revised Policy Manual, USCIS has clarified their adjudicatory approach to guide petitioners and applicants in this category. For example, the Policy Manual now clarifies that an “endeavor” described in a petition must be more specific than a general occupation, confirming that a petition should describe the intending immigrant’s specific projects and goals, rather than the general duties and responsibilities of a given job or occupation to be performed.

USCIS’ new guidance is effective immediately and is expected to improve adjudicatory trends in the O-1A and NIW categories, making them more consistent to facilitate immigration processes overall.

Updated I-94s for E and L Dependents Work Authorized Incident to Status

In November 2021, DHS changed the structure of employment authorization for certain nonimmigrant dependent spouses, including establishing that dependent spouses of E and L nonimmigrants are work authorized incident to their status in the United States with a properly annotated I-94 record. Under this new system, while an E or L spouse may obtain anan Employment Authorization Document (EAD), it is not required in order for them to be employed in the U.S.

On January 31, 2022, U.S. Customs and Border Protection (CBP) implemented new Class of Admission codes for dependents in the E and L visa categories, as follows:

• E-1S – Spouse of E-1
• E-1Y – Child of E-1
• E-2S – Spouse of E-2
• E-2Y – Child of E-2
• E-3S – Spouse of E-3
• E-3Y – Child of E-3
• L-2S – Spouse of L-1A or B
• L-2Y – Child of L-1A or B.

A valid I-94 record showing admission in E-1S, E-2S, E-3S, or L-2S now serves as acceptable documentation of work authorization for I-9 purposes for the full period of admission. However, because these codes are only applicable to new arrivals, dependent spouses already present in the U.S. cannot correct their I-94s to reflect the updated code indicating work authorization, and they must either depart the U.S. and re-enter to receive an updated I-94 or continue to show a valid EAD or qualifying evidence of a pending EAD renewal to document their work authorization. For dependent spouses with expired visa stamps and valid I-94 records, international travel and re-entry with Automatic Visa Revalidation will allow CBP to issue an updated, annotated I-94 valid for work authorization.

Though it is not a requirement for admission, Parker Gallini recommends that all E and L dependent spouses carry proof of their marriage to the E/L principal nonimmigrant and specifically request admission in the appropriate spousal category when traveling internationally.

USCIS’ New Interfiling Process for Pending Employment-Based AOS Applications

Following the publication of the February 2022 and March 2022 Visa Bulletins, which continue to advance EB-2 Final Action Dates for India and China, USCIS introduced new guidance for transferring the underlying basis of a pending Form I-485, Application to Register Permanent Residence or Adjust Status (AOS).

USCIS allows an AOS applicant to request a transfer of the basis of a pending AOS from one employment-based preference category to another (also known as “interfiling”) where the following criteria are met:

• The AOS applicant has continuously maintained eligibility for adjustment of status;
• The AOS application based on the original Form I-140 is still pending;
• The AOS applicant is eligible for the new immigrant category being requested; and
• A visa is immediately available in the new immigrant category.

To continuously maintain eligibility for adjustment of status, an AOS applicant must not trigger any grounds of inadmissibility, such as violating the terms of an immigration status by working without authorization or committing certain criminal acts, and the position offered in the original and interfiled Form I-140, Immigrant Petitions must remain available. So long as the replacement Form I-140, Immigrant Petition is timely and properly filed and designated as the new basis for the pending AOS, the initial petition supporting the AOS may be withdrawn, denied, or revoked without impacting the AOS, except in cases of fraud. For a visa to be immediately available and the interfiling request to be approvable, the priority date for the requested preference category must be current under Dates for Final Action on the current Visa Bulletin.

For Fiscal Year 2022 (October 1, 2021 through September 30, 2022), USCIS has established a new method to submit interfiling requests, allowing AOS applicants to submit the interfiling request in writing together with a Form I-485 Supplement J, Confirmation of a Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) to a designated address. USCIS will issue a receipt for the Form I-485 Supplement J submitted as a request to interfile but will not issue a written response to confirm the decision made on an interfile requests. USCIS’ treatment of all requests for transfer of the underlying basis of a pending AOS remain discretionary. However, USCIS has strongly recommended that AOS applicants request to interfile instead of filing a new AOS application in the desired preference category to increase the chance of an AOS being approved during the current fiscal year.

Individuals with a pending Adjustment of Status based on a downgraded Form I-140, Immigrant Petition in the EB-3 category may want to consider options for interfiling an EB-2 Form I-140, Immigrant Petition or filing a second Adjustment of Status application. Consult with your Parker Gallini attorney if you have any questions about these options.

By Donald W. Parker,  Immigration Attorney

The USCIS has published guidelines for requesting an expedite of a pending application to renew an Employment Authorization Document (EAD) specifically for qualifying healthcare workers.  This is now an additional basis for requesting expedited processing of immigration benefit applications — a description of the various expedite options, including information on the new process for expediting the EADs of healthcare workers, can be found here.

The new guidelines, which rely on the U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) guidance for COVID-19 response, apply to all EAD renewal applications but not to initial applications for an EAD.  This includes EADs tied to an I-485 Adjustment of Status application as well as an EAD based on L-2 and H-4 derivative status.  The expedite request can only be made once the EAD is within 30 days of expiration or after it has expired.  Expedite requests must be done through the USCIS Customer Service Center either by phone (800-375-5283) or using the on-line “Ask Emma” feature, which can be accessed on the USCIS web site.  When the expedite request is made, the applicant must establish that they are a qualifying health care worker, presumably with a letter from their employer, that would be submitted as part of the application process visa email or fax.  The guidelines provide that a successful expedite request will result in the EAD application being “prioritized” without indicating how quickly the USCIS will act.  It is, of course, ultimately in the discretion of the Customer Service Officer as to whether the expedite request is granted and then once granted, the USCIS notes that there is no guarantee that the USCIS will approve the case.

The central question in this new EAD expedite process is how “qualifying healthcare worker” is defined.  The CISA guidelines provide a number of different definitions and examples of workers that fall within this sector, including:

• Workers, including laboratory personnel, who perform critical clinical, biomedical and other research, development and testing needed for COVID-019 and other diseases.
• Workers required for effective clinical, command, infrastructure, support service, administrative, security and intelligence operations across the patient care and full healthcare and public health spectrum.  Examples of this include accounting, administrative, engineering,  information technology and operational technology.
  • Workers that manage health plans, billing and health information.
  • Vendors and suppliers of imaging, pharmaceutical, oxygen and other durable medical goods.
  • Workers at manufacturers, including biotechnology companies, materials and parts suppliers, logistics and warehouse operators and distributors of medical products and equipment.

Time will tell how expansively USCIS Customer Service interprets these seemingly very broad definitions in the application of the new EAD expedite guidelines.  In any event, this new ground for expediting EADs is a welcome development given the enormous delays that are being experiencing in the processing of EADs. 

COVID-19 Testing Requirements for U.S. Entry

Currently, there are no region- or country-based travel restrictions in place for individuals seeking to enter the U.S. Instead, all air travelers to the United States are subject to the same testing and vaccination requirements, regardless of their point of origin or foreign/U.S. citizenship status. For now, these testing requirements have replaced the regional travel bans that were in place throughout 2020 and 2021. 

Beginning on December 6, 2021, air tavelers aged two and older, regardless of nationality of vaccination status, are required to show documentation of a negative COVID-19 test taken within one day of their flight’s departure to the United States. Test results must be shown before a traveler can be permitted to board a U.S.-bound flight.

As of January 22, 2022, all travelers who are not U.S. citizens or Green Card holders and who seek entry  to the U.S. at a land Port of Entry must provide U.S. Customs and Border Protection with proof of COVID-19 vaccination. U.S. Customs and Border Protection’s implementation of the vaccine requirement has replaced the ban on non-essential travel that was in place from March 2020 to November 2021. Now, non-citizens may enter the U.S. via land borders and ferry ports for any essential or nonessential purpose, with proof of vaccination.

Note that while U.S. citizens and Green Card holders traveling to the U.S. do not need to show evidence of COVID-19 vaccination when entering the U.S., they still must provide either a negative COVID-19 test result taken no more than 1 day prior to travel or evidence of recovery from COVID-19 within the last 90 days when traveling to the U.S. by air. 

U.S. Department of State Expands Interview Waiver Eligibility for Visa Processing

Foreign nationals applying for individual petition-based H-1, H-3, H-4, L, O, P, and Q visas may now be eligible for visa processing without an interview at U.S. Consulates and Embassies abroad. The waiver of a visa interview, sometimes called dropbox processing, is at the discretion of each consular post, and may be available to foreign national visa applicants in each of the following circumstances:

• An applicant is applying for a visa in their country of nationality or residence, has previously been issued a U.S. visa in any category, has never been refused a visa (unless the refusal was overcome or waived), and has no apparent ineligibility.
• A first-time applicant is applying for a visa in their country of nationality or residence, is a citizen of a Visa Waiver Program country, has previously traveled to the U.S. with ESTA, and has no apparent ineligibility.

Generally, applicants renewing any visa within 48 months of expiration remain eligible for interview waivers. Additionally, the U.S. Department of State has previously authorized interview waivers for certain F, M, and academic J visa applicants. To qualify for an interview waiver, an applicant in one of these categories must meet the same conditions listed above.

Implementation of this policy is dependent on consular resources and local government restrictions, so visa applicants must check with the relevant U.S. Consulate or Embassy to determine the current status of visa processing. In most cases, to schedule visa stamping, including appointments for document drop off when an interview is waived, applicants should complete Form DS-160 online.  If an applicant is determined by the Consulate or Embassy to be qualified  for interview waiver, they will be directed to schedule a dropbox appointment as appropriate when completing the DS-160.

EB-2 Advancement in the February 2022 Visa Bulletin

The February 2022 Visa Bulletin significantly advances the Final Action Date for EB-2 India, which moves forward six months from July 8, 2012 to January 1, 2013. EB-2 China is also advancing modestly, from January 22, 2019 to March 1, 2019. Final Action Dates for the EB-1 category remain current for all countries and in the EB-2 / EB-3 categories for all countries except China and India. USCIS has announced that they will continue to accept Adjustment of Status applications based on the Dates for Filing.

As Final Action Dates continue to advance for EB-2 India, individuals with a pending Adjustment of Status based on a downgraded EB-3 I-140 may want to consider options for interfiling the EB-2 I-140 or filing a second Adjustment of Status application. Consult with your Parker Gallini attorney if you have any questions about these options.

USCIS Extends RFE Response Flexibility Through March 26, 2022

USCIS has again extended flexibility for applicants and petitioners responding to Requests for Evidence, Notices of Intent to Deny or Revoke, and certain other requests and notices issued between March 1, 2020 and March 26, 2022, inclusive. This allows response to a USCIS request, notice, or decision up to 60 calendar days after the due date listed on the notice. USCIS has also clarified that a Motion to Reopen, Motion to Reconsider, or Appeal may be filed up to 90 days from the date USCIS issued a denial decision if USCIS denied the matter between November 1, 2021 and March 26, 2022, inclusive. 

Please reach out to a Parker Gallini immigration attorney for more information any of these topics. 

A brief overview of DACA’s long and winding road and its current status

By Molli Freeman-Lynde, Immigration Attorney

Origins of DACA

The Obama administration created the Deferred Action for Childhood Arrival program, known as DACA, on June 15, 2012. The program was created to provide relief from deportation and work authorization for a temporary period of two years at a time, renewable indefinitely, for young undocumented immigrants who met certain requirements.

Applicants qualify for DACA if they:

1. Were under the age of 31 as of June 15, 2012;
2. Arrived in the United States before reaching their 16th birthday;
3. Continuously resided in the United States from June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of applying for consideration of deferred action with USCIS;
5. Had no lawful status on June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.(Source: https://www.uscis.gov/DACA#guidelines).

Because DACA was created through executive and not legislative action, it does not and cannot provide any permanent legal status to recipients. Nonetheless, it has been a critical form of relief for over 800,000 young adults living and working in the U.S. since its creation. Individuals who are granted DACA have work authorization and are generally able to secure better jobs with higher pay, more benefits, and greater stability than undocumented immigrants. They also face less uncertainty about their day-to-day protection from deportation.

Legal Challenges to DACA

The DACA program became a focal point of the Trump administration’s anti-immigrant platform, and in September 2017 the administration announced that they were ending DACA. This sudden announcement sparked years of back-and-forth litigation that continues to this day. Highlights of this litigation include the following.

In June 2020, the Supreme Court ruled in a narrow holding that the Trump administration violated procedural requirements in their manner of terminating DACA, without ruling on the legality of the program itself. While limited in scope, this ruling ended the Trump administration’s effort to terminate the DACA program.

Despite this ruling, USCIS under Trump continued to limit DACA applications. In a July 2020 memorandum, the agency announced that it would not process new applications and that it would limit DACA renewals to one year of validity instead of two. This USCIS memorandum was reversed by a federal judge in December 2020, who ordered the U.S. government to fully restore DACA and resume processing all new applications.

When President Biden took office in January 2021, one of his first executive orders directed the Department of Homeland Security to “take all actions … appropriate … to preserve and fortify DACA.” This was welcome news for DACA recipients, who had been dealing with the changing rules for several years.

Unfortunately, the reprieve was short lived. On July 16, 2021, a federal judge in Texas ruled that the entire DACA program is unlawful. (You can access a pdf of the decision here: https://www.uscis.gov/DACA.) The judge’s initial order allows current DACA recipients to continue to hold DACA and for USCIS to process renewal applications, but it halts processing for new applications pending a final disposition of the court case. The Biden administration has appealed the decision to the 5th Circuit and that appeal is currently pending.

The Future of DACA

While the most recent District Court decision winds its way through the court system, USCIS is processing DACA renewals and accepting but not adjudicating new applications. DACA recipients with valid employment authorization documents (“EAD”) continue to be eligible for employment. Employers who seek to employ a DACA recipient should verify that the individual has an EAD with the code “C33” and should note the expiration date. DACA recipients do not benefit from an automatic extension of work authorization and should file applications to renew their DACA and employment authorization 150 days prior to expiration to avoid a gap in coverage.

With the fate of DACA resting once again on the courts, DACA recipients are increasingly looking for other avenues to secure temporary or permanent status. Congressional action could provide a path to permanent residence for DACA recipients and similarly situated young undocumented immigrants. There are a range of proposals that are being considered for inclusion in upcoming legislation, but it is unclear what the final version of the legislation would look like or whether it can garner enough support for passage.

Employment-Based Sponsorship for DACA Recipients

In the meantime, individuals who hold DACA may be eligible for employment-based sponsorship for temporary or permanent lawful status depending on the specifics of their case. If you are an employer looking for more information about how to sponsor an employee who currently holds DACA, please contact your Parker Gallini immigration attorney for a consultation.

Current Status of Travel Restrictions and Vaccine Requirements

On October 25, President Biden issued A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic. Effective as of November 8^th, the Proclamation revokes the country-by-country restrictions implemented early in the COVID-19 pandemic, replacing them with new policies aiming to limit the risk of COVID-19 variants being introduced and spread throughout the United States. With the revocation of the country-by-country restrictions, National Interest Exceptions (NIEs) are no longer required for foreign nationals traveling from formerly-restricted countries and regions including China, India, and the Schengen Area, among others. 

The new Proclamation restricts travel for certain individuals who are not fully vaccinated against COVID-19. In limiting the restrictions in this way, the Proclamation also establishes that fully vaccinated individuals can resume travel to the United States in accordance with Centers for Disease Control (CDC) guidelines. Under the current guidelines, to travel to the U.S. by plane, an individual must be fully vaccinated, must show a negative COVID-19 test result or documentation of recovery from COVID-19, and must wear a mask during transit, with limited exceptions. Testing requirements may vary depending on age and vaccination status. 

Under the Proclamation, the CDC is also responsible for implementation and enforcement of the new travel restrictions, including defining and specifying accepted COVID-19 vaccines. As of today, accepted COVID-19 vaccines include:

• FDA Authorized/Approved: Moderna, Johnson & Johnson and Pfizer-BioNTech
• WHO Approved: Johnson & Johnson, Pfizer-BioNTech, Moderna, AstraZeneca, Covaxin,  Covishield, BIBP/Sinopharm, Sinovac

The CDC is regularly publishing up to date information regarding travel requirements and recommendations on their website and has developed an online tool to guide individuals through the requirements for air travel and entry to the U.S., which is available here.  

H-4 and L-2 Work Authorization Settlement

The American Immigration Lawyers Association (AILA) and litigation partners reached a settlement with USCIS after suing the agency over the long-delayed processing times for L-2 and H-4 dependent EADs (Shergill, et al. v. Mayorkas, 11/10/21). The settlement establishes that H-4 and L-2 spouses with EADs will receive an automatic extension of employment authorization for 180 days while an EAD renewal is pending with USCIS provided that the underlying H-4 or L-2 status continues to be valid based on an unexpired I-94. In addition, USCIS has agreed to provide L-2 spouses work authorization incident to status, meaning that EADs will not be required for the spouses of L-1 intracompany transferees.

Note that the 180-day automatic extension will, in practice, be of limited value to H-4 spouses as it requires that they be maintaining  H-4 status authorized by an unexpired I-94 to be eligible for the extension of work authorization. Commonly, an H-4 EAD extension is filed together with an H-4 extension of status application. While a timely-filed extension of status application allows the applicant to remain in the U.S., it does not provide valid H-4 status until approved. This means that when the H-4 spouse’s I-94 expires, even with an extension of status application pending, their 180-day automatic extension of work authorization will expire at the same time. While the same rule applies to L-2 spouses, the policy change providing L-2 spouses with work authorization incident to status will eliminate the need for an L-2 spouse to have a valid EAD and will make the 180-day automatic extension rule irrelevant to L-2 spouses.

These significant policy changes will come into effect within 120 days of the November 2021 Effective Date of the settlement. Further guidance from USCIS is updating policy to address I-9 requirements and to confirm that spouses in E-2 status will also be work authorized incident to status.  

DOL Requests Employer Input on Remote I-9 Flexibility

In March 2020,  the Department of Homeland Security (DHS) announced flexibility in complying with I-9 requirements due to the COVID-19 pandemic, allowing employers to defer physical presence requirements and authorize remote examination of documents. DHS is now seeking public input on employer and employee experiences with the remote I-9 process to assess the costs and benefits of continuing and/or making permanent remote examination of documents. This is an opportunity for individuals to provide feedback that could encourage DHS to make remote I-9 completion a permanent option for employers and employees. DHS is accepting comments until December 27, 2021. 

Individuals can submit comments online here.

USCIS RFE data shows a return to sanity in adjudications for some nonimmigrant case types post-Trump presidency, while others have seen little or no improvement

By Grant W. Godfrey, Immigration Attorney

The Trump administration articulated early on a broad policy of protecting the American labor force.  In the immigration context, this policy was implemented in a wide variety of ways.  In the area of skilled immigration (H-1B, L-1, O-1 and related skilled nonimmigrant visas) this was done primarily through inconsistency in the adjudication process.  Companies and foreign nationals saw a high percentage of these skilled worker filings being challenged by the U.S. Citizenship and Immigration Services (“USCIS”) through the issuance of expansive Requests for Evidence (“RFEs”) which often did not take account of the facts presented.  With this increase in RFEs came a corresponding increase in denials.  

The U.S. Citizenship and Immigration Services recently released data about its RFE and denial trends from October 2016 to June 2021 for the following relevant nonimmigrant classifications: H-1B, L-1A/L-1B (combined), O-1/O-2 (combined) and TN status.  Note that all results are related to USCIS filings, and do not incorporate any information from adjudications performed at the border by Customs and Border Protection (“U.S. Customs”) or at foreign embassies and consulates by the State Department (“DOS”).  

Since this data includes periods before, during, and after the Trump Presidency, now is a good time to take a look at approval rates, RFE rates, and denial rates for each of these periods.  For the purposes of this article, the data from Fiscal Year 2016 (October 2015 to September 2016) represents the period before President Trump.  The data from Fiscal Year 2019 (October 2018 to September 2019) represents the period during his Presidency where he was implementing policies that had not yet been struck down by the courts.  Finally, for the Biden presidency, the data only covers the first five months, but it provides us with clear adjudication trends.     

H-1B Petitions

There is little doubt that H-1B petitions suffered greatly under the Trump presidency.  Before and after his presidency, approximately 95% of H-1B petitions were approved.  However, during his presidency H-1B approvals dipped to approximately 85% under his watch.  The RFE rate also doubled under President Trump’s watch, with more than two times the number of cases being denied after an RFE than had been before his presidency.  During the first five months of President Biden, approval and RFE rates have improved to rates that were better than those seen at the end of President Obama’s term.

L-1A/L-1B Petitions

Unfortunately, the dataset does not distinguish between L-1A and L-1B petitions.  This is important because since it is typically easier to produce external evidence of managerial authority for an L-1A petition than it is to demonstrate someone’s specialized knowledge for an L-1B.  As a result, RFE and denial rates for L-1A petitions are always lower than for L-1B cases.  This data set combines the two sets of statistics, so we cannot extrapolate whether the change in statistics is due to one or both of the statuses being looked at differently by adjudicators.   During the Trump presidency, approval rates for L-1As and L-1Bs dropped by approximately 15%, RFE rates increased by over 20%, and the approval rates after an RFE dropped by approximately 5%.  During the first few months of the Biden presidency, there’s been only a modest improvement in approval and in the denial rate, making  up only about half of the ground that was lost under the Trump presidency.

O-1/O-2 Petitions

Unlike H-1Bs and L-1s, where there have been at least modest improvements in adjudications under President Biden, O-1 and O-2 filings are faring worse than they were under President Trump.  Approval rates have dropped slightly, RFE rates have increased at a noticeable rate, and overall denial rates have also increased under President Biden.  Anecdotally, the firm has noticed this shift, and we believe that when the next data set is released, the numbers will be even worse under President Biden.  This continued downward trend is concerning especially because neither President Biden nor the Department of Homeland Security have suggested any concerns with this visa category or signaled any change in their adjudication standards.   

TN Petitions

The data from this set only captures TN filings made with USCIS, so this is an incomplete view of all TN filings.  U.S. Customs, which handles many TN applications, does not maintain statistics on TN adjudications, and we have not incorporated any data from the DOS because they do not have an equivalent to an RFE rate that they maintain statistics on.  Even though the United States, Canada, and Mexico entered into a new free trade agreement under President Trump called the United States-Mexico-Canada Agreement (“USMCA”), the approval, denial, and RFE rates remained relatively stable.  The main difference is that under President Trump, an RFE was more likely to be denied than it was before or after his presidency.

Overall these numbers confirm the extremely negative impact that adjudication policies under Trump had on skilled immigration.  They also show that while President Biden has really focused on reforming adjudication procedures for H-1B petitions and to a lesser extent for L-1 petitions, other  categories remain approximately the same as they were under President Trump, or in the case of O-1/O-2 filings, have actually gotten worse.  Our hope is that as President Biden is able to implement his skilled immigration agenda that he does not forget that there is more to immigration than H-1B visas, and that he especially takes a look at the adjudication standards and practices for L and O visas.

RFE Rates Summary Chart

November Visa Bulletin

As was the case in October, in November, the U.S. Citizenship and Immigration Services (USCIS) will continue to accept Employment-Based Adjustment of Status applications based on the Visa Bulletin’s Dates for Filing chart. The backlogged dates in the Dates for Filing chart are more advanced that the dates in the Final Action Dates chart, which means that foreign nationals can file their I-485 Adjustment of Status application earlier than a visa number is available to them. While USCIS’ use of the Dates for Filing chart is a positive development that allows more applicants to file for permanent residency, the November Visa Bulletin also contains a considerable retrogression in the EB-3 category for India and China.

The November Visa Bulletin’s Dates for Filing have shifted significantly overall for Indian nationals, with the EB-2 category advancing six (6) months from to July 8, 2012 to January 8, 2013 and the EB-3 category retrogressing nearly two (2) years from January 8, 2014 to January 22, 2012. Final Action Dates for India advanced by three (3) months for EB-2 and retrogressed about two (2) years for EB-3, indicating that these cases are likely to continue facing long processing times.

China’s Dates for Filing for EB-2 advanced from September 1, 2018 to February 1, 2019, while EB-3 Dates for Filing retrogressed from January 15, 2019 to April 1, 2018. Final Action Dates for China advanced by approximately four (4) months for the EB-2 category and retrogressed by approximately ten (10) months for the EB-3 category. All other EB-1, EB-2, and EB-3 dates are current for Filing and Final Action.

As was the case in Fiscal Year 2021, a higher-than-usual number of employment-based immigrant visas is available for Fiscal Year 2022 due to slowed consular processing of family-based immigrant visas during the Covid-19 pandemic. USCIS has publicly committed to adjudicating as many applications as possible to use up these numbers. Applicants with pending cases should coordinate with their Parker Gallini attorney to ensure that all documents, including medical exams, are ready for submission to USCIS as soon as requested.

Current Status of Regional Travel Bans and Visa Issuance

On Friday, October 15, the White House announced that Covid-19 travel restrictions will end for fully vaccinated foreign nationals, effective November 8, 2021. This announcement builds on Secretary of Homeland Security Mayorkas’ October 12 announcement that the Department of Homeland Security (DHS) will amend current restrictions to allow non-essential travel from Canada and Mexico for fully vaccinated individuals beginning in November 2021, with essential travel allowed for unvaccinated individuals from Canada and Mexico until January 2022, when proof of vaccination will become required for all inbound foreign national travelers at land and ferry Ports of Entry from Canada and Mexico.

The current restrictions began in January 2020 with a ban on air travelers from China and have come to include restrictions on air and land travel from over 30 countries, including many European countries, India, Brazil, South Africa, and others. The restrictions have prohibited US entry, and in some cases visa issuance, for foreign nationals who could not demonstrate exemption based on familial ties to the U.S. or qualify for an exception to the restrictions based on U.S. national interests.

Specific guidance on the new travel policy is in progress and is ultimately expected to apply both to international air travel and land border and ferry crossings from Canada and Mexico. To date, the U.S. Centers for Disease Control (CDC) confirmed that only vaccines approved or authorized by the U.S. Food and Drug Administration (FDA) or listed for emergency use by the World Health Organization (WHO) will be accepted for air and land travel to the U.S. Currently, this includes:

• FDA Authorized/Approved: Moderna, Johnson & Johnson and Pfizer-BioNTech
• WHO Approved: Moderna, Johnson & Johnson, Pfizer-BioNTech, Oxford-AstraZeneca/Covishield, Sinopharm, and Sinovac

USCIS Extends RFE Flexibility

USCIS has extended flexibility for applicants and petitioners responding to Requests for Evidence, Notices of Intent to Deny or Revoke, and certain other requests and notices issued between March 1, 2020 and January 15, 2022, inclusive. This accommodation allows response to a USCIS request, notice, or decision up to 60 calendar days after the due date listed on the notice.

DHS/ICE Announce New Worksite Enforcement Strategy

On October 12, DHS Secretary Mayorkas directed the U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and USCIS to take actions to support more effective enforcement of wage protections, workplace safety, and labor rights. Specifically, Sec. Mayorkas has called for an immediate cessation of mass worksite operations that have historically resulted in the arrests of hundreds of undocumented workers without any significant consequences for exploitative employers who were known to have used these operations as a retaliation tool against worker cooperation in workplace standards investigations.

In addition, Sec. Mayorkas has also called for review of all DHS policies that impact the enforcement of employment and labor standards and for the development of new policies and agency plans to facilitate the reporting, investigation, and prosecution of unscrupulous employers, including plans that protect the rights of noncitizen workers by providing for the consideration of relief for undocumented workers who participate actively in workplace investigations. Both DHS Sec. Mayorkas and U.S. Department of Labor Secretary Marty Walsh have announced that both Departments will collaborate to ensure the well being of individuals and the fairness of the labor market by focusing agency efforts and resources on employers who create an unfair labor market by engaging in illegal acts ranging from the payment of substandard wages to the imposition of unsafe working conditions and facilitation of human trafficking and child exploitation. New policy recommendations are expected in the coming months.