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The U.S. Justice Department and Department of Homeland Security published a fact sheet this week on how employers can avoid violating the law when using proprietary or commercial electronic programs to complete the Form I-9 or E-Verify process.
Key Points:
Additional Information: BAL continues to review the information published this week and will be providing substantive updates through BAL Community in January, including during a Jan. 17 event, “How to Run a Simple I-9 Audit.” For more information on BAL Community, visit Community.BAL.com.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The State Department on Thursday announced it would extend interview waiver authorities for certain nonimmigrant visa applicants.
Interview waivers have played a key role in helping reduce State Department processing backlogs. In announcing the extension, the department also put in place some changes to the current policy. Beginning Jan. 1, consular officers will have the authority to waive interviews for:
Applicants renewing a nonimmigrant visa in the same classification within 48 months of the prior visa’s expiration date continue to be eligible for an interview waiver.
The new interview waiver authorities will be reviewed annually and will remain in place until further notice.
To be eligible for an interview waiver, applicants must meet certain criteria, including that they:
The department stressed that consular officers may still require in-person interviews on a case-by-case basis or because of local conditions.
BAL Analysis: The extension of interview waiver authorities is welcome news that should help the State Department continue to improve visa wait times. While the interview waiver authorities no longer specifically cover F, M, and academic J visa applicants or individual petition-based based H-1, H-3, H-4, L, O, P, and Q visa applicants, these individuals may qualify for an interview waiver under one of the above-noted categories. Applicants are reminded that interviews may be required on a case-by-case basis and should check embassy and consulate websites for more detailed information about visa application requirements and procedures.
The Department of Labor has asked for public input on whether to revise its list of Schedule A job classifications that do not require permanent labor certification.
BAL Analysis: Green cards in the EB-2 and EB-3 classifications generally require permanent labor certification, or PERM; however, PERM is not required for occupations on the Schedule A list of shortage occupations. Schedule A has not been revised since 2004, and the DOL’s move to ask for public input is a welcome development towards modernizing the list and the process for revising it. This is a preliminary step in the rulemaking process, and several steps must be completed before the list can be updated. BAL will continue following this matter and will provide updates as information becomes available.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The State Department will allow a limited number of H-1B holders to renew their visas in the United States under a pilot program, the details of which were unveiled Wednesday.
BAL Analysis: The pilot program is an important step toward bringing back domestic visa renewal, which has not been widely available in the U.S. since 2004. The pilot will be open only to a limited number of H-1B visa holders, but it could be expanded to other individuals and visa categories later in 2024. BAL will provide additional updates as information becomes available.
Leading business and immigration organizations have called on U.S. Citizenship and Immigration Services to implement proposed changes to the H-1B lottery ahead of the upcoming H-1B cap season.
In October, USCIS published a wide-ranging proposed regulation that would have broad consequences for the H-1B program, including shifting to a beneficiary-based H-1B lottery.
In a Dec. 5 comment, Compete America — a coalition of businesses, trade organizations and higher-education associations — said they have “serious concerns” about the “vulnerabilities” in the current H-1B registration process.
“The gaming of the registration system that occurred this year drove selection rates down for legitimate users of the H-1B program and caused uncertainty for U.S. employers and their employees,” the coalition said. “The H-1B program is critical to a wide range of industries in the United States, and allowing this gaming to continue for even one more year would be detrimental to the country’s economy.”
BAL Analysis: USCIS has indicated that it may seek to finalize provisions related to cap registrations separately from other provisions in the proposed regulation but has not definitively said it will do so. The deadline to submit comments on the proposed H-1B regulation is this Friday, Dec. 22. BAL will continue monitoring the proposal through the regulatory process and will provide updates as information becomes available.
A Federal Register notice about a State Department pilot program to revive domestic visa renewal for a limited number of nonimmigrant visa holders has cleared review at the White House Office of Management and Budget.
BAL Analysis: While the pilot would be a significant step toward bringing back a domestic visa renewal program, it will initially apply to a limited number of H-1B visa holders before potentially being expanded. Eligibility criteria, scope and duration of the pilot will not be known until the notice is published in the Federal Register. BAL will continue following the matter and will provide more information once it becomes available.
The State Department updated current passport processing times, showing reduced wait times for both routine and expedited services.
Additional Information: It may take up to two weeks for applications to arrive by mail at a passport agency or center, and then an additional two weeks or more to receive a completed passport in the mail. These mailing times are not included in the processing times described above. Individuals must be traveling within 14 calendar days in order to schedule an in-person appointment for urgent passport or emergency passport processing services.
BAL Analysis: The decrease in wait times is welcome news, especially following significant delays over the summer. Wait times fluctuate with changes in demand, and travelers are urged to continue preparing well in advance of planned international travel.
On today’s BAL Immigration Report, we look back at some of the most important business immigration stories of 2023.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
The Department of Homeland Security posted a Federal Register notice detailing the extension of Temporary Protected Status reregistration periods from 60 days to 18 months for the designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan.
Additional Information: U.S. Citizenship and Immigration Services stressed that the announcement does not change previously announced extensions of the TPS designations for the six countries in question. The announcement also does not change any TPS eligibility requirements, but rather extends the period when existing beneficiaries may reregister for benefits.
U.S. Citizenship and Immigration Services announced Wednesday that it has received enough petitions to reach congressionally mandated H-1B caps. This means there will not be a third H-1B lottery this fiscal year.
Additional Information: USCIS completed its initial lottery of H-1B cap-subject registrations in March, selecting 110,791 of 758,994 eligible registrations. The agency completed a second lottery in July, selecting an additional 77,609 eligible registrations, significantly more than it has selected in second lotteries in past years. Employers are encouraged to work with their BAL attorney to consider alternatives for registrations that were not selected.