COVID-era Form I-9 temporary measures come to an end today, a day before a new Department of Homeland Security I-9 regulation goes into effect.

‌Key Points:‌

• Temporary COVID-19 measures that allowed employers to conduct some Form I-9 document checks remotely during the COVID-19 pandemic come to an end today.
• A new DHS regulation establishing optional alternatives to in-person Form I-9 processing takes effect Tuesday, Aug. 1. Under the regulation, qualified E-Verify employers may begin using the alternative procedure, provided they meet all requirements outlined in the “Optional Alternative 1” notice.
• The “alternative” program is optional. Employers who prefer to review documents in person may do so. Employers that do not meet the requirements for the new process must review I-9 documents in person.
• USCIS has stated it will post a new Form I-9 version Aug. 1. Employers will continue to be able to use the previous version of the form through Oct. 31. It will no longer be valid starting Nov. 1.
• Employers should monitor the USCIS “I-9 Central” page and M-274 Handbook for Employers for guidance on how to complete the Form I-9.

Reminder: Employers have until Aug. 30 to conduct follow-up document inspections for employees whose Form I-9 identity and work authorization documents were inspected remotely under the temporary COVID-19 measures. The follow-up inspections can be completed under the new DHS rule, provided the employer (1) was enrolled in E-Verify at the time the employee was hired, (2) created an E-Verify case for the employee in question and (3) performed a remote Form I-9 document inspection for the employee under the temporary measures between March 20, 2020, and July 31, 2023. Employers that do not meet these requirements must physically review documents by Aug. 30.

BAL Analysis: The new remote verification option is welcome news for employers, especially because it will be available in some cases to employers who must complete follow-up document review for employees hired during the pandemic. Employers are encouraged to continue working closely with BAL on Form I-9 compliance matters.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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.

U.S. Citizenship and Immigration Services announced Thursday that it would conduct a second H-1B registration lottery for the 2024 fiscal year.

‌Key Points:

• USCIS completed its initial lottery of H-1B cap-subject registrations in March. The agency subsequently announced that it selected 110,791 of 758,994 eligible registrations. The filing period for registrations selected in the first lottery ran from April 1 to June 30.
• In its announcement Thursday, USCIS said it “recently determined that we would need to select additional registrations to reach the FY 2024 numerical allocations.” The agency said it will announce once it has completed the second lottery and notified prospective petitioners that they are eligible to file H-1B petitions for the beneficiary in question.
• Those with selected registrations will have their myUSCIS accounts updated to include a selection notice, which will include filing instructions.

BAL Analysis: The huge number of registrations submitted this year demonstrates the ongoing popularity of the H-1B program and the high demand for the limited annual number of visas. News of a second lottery is a welcome development, though it remains to be seen how many additional registrations will be selected. BAL will provide updates as information becomes available.

This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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 Department of Homeland Security posted the text of a much-anticipated Form I-9 regulation Friday, announcing it would give qualifying employers optional alternatives to in-person document review in some cases.

Key Points:

• Beginning Aug. 1, employers who participate and are in “good standing” in E-Verify will have the option of completing Form I-9 document review processes through live video call interaction, after the employee transmits a copy of the document(s) to the employer.
• This option will also be available, starting Aug. 1, to employers completing follow-up Form I-9 document review for employees hired during the COVID-19 pandemic if the employer:
  • Was enrolled in E-Verify at the time the employee was hired.
  • Created an E-Verify case for the employee in question.
  • Performed a remote Form I-9 document inspection for the employee under temporary COVID-19 measures between March 20, 2020 and July 31, 2023.
• Employers have until Aug. 30 to review documents for these employees, as the temporary COVID-19 measures will terminate July 31. Employers that do not meet the above requirements must still physically review documents by Aug. 30.
• The “alternative” program is optional. Employers who prefer to review documents in person may do so, and employers that do not meet the requirements for the new process must still review I-9 documents in person.
• Under the regulation, DHS will have the authority to conduct a pilot program to offer remote examination to a broader category of employers. More information about this pilot is expected soon.
• DHS also announced a new, streamlined version of the Form I-9 that will become mandatory in November.
• The Form I-9 optional alternatives regulation will be published in the Federal Register Tuesday, July 25. A pre-publication version is available here. A notice providing details on the first optional alternative procedure is available here. A notice on the new version of the Form I-9 is available here.

BAL Analysis: In its announcement Friday, DHS said the changes advance DHS’ “mission of safeguarding the integrity of the employment eligibility verification process, while recognizing the realities of the post-COVID economic recovery in which more Americans are working remotely than ever.” The remote verification option is welcome news for employers, especially because it takes effect Aug. 1 and will be available, in some cases, to employers who must complete follow-up document review for employees hired during the pandemic. Employers are encouraged to continue working closely with BAL on Form I-9 compliance matters.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

‌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 U.S. Justice Department has asked a federal court to dismiss a case challenging Deferred Action for Childhood Arrivals, citing a recent U.S. Supreme Court ruling.

Key Points:

• In an 8-1 ruling in United States v. Texas in June, the Supreme Court held that Texas and Louisiana lacked standing to challenge federal enforcement priorities related to arrest and deportation.
• Earlier this month, the Justice Department and the Mexican American Legal Defense and Educational Fund both filed motions with the district court hearing the DACA case, saying the Supreme Court’s ruling calls into question the district court’s previous findings on standing.
• Texas and the other states challenging DACA dispute that the United States v. Texas Supreme Court ruling is applicable; instead, they say a separate recently decided Supreme Court case, Biden v. Nebraska, which struck down the Biden administration’s student loan forgiveness program as exceeding the Secretary of Education’s statutory authority, reinforces their position that the Secretary of Homeland Security lacked the authority to create DACA.

Additional Information: District Court Judge Andrew Hanen is hearing the DACA case after the Fifth Circuit Court of Appeals ruled that the memorandum that created DACA in 2012 was unlawful but also asked the district court to consider the legality of a Biden administration rule to protect DACA. The Biden administration constructed the rule to “preserve and fortify” DACA, but the states challenging the program say it “suffers the same flaws” as the 2012 memorandum.

Currently, the Department of Homeland Security continues to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients; the agency remains prohibited from granting initial DACA requests and accompanying requests for employment authorization. BAL will continue to monitor the ongoing litigation and will provide updates on important developments related to DACA.

This alert has been provided by BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

‌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 White House Office of Management and Budget is reviewing two proposed regulations designed to update H-2 visa programs. The text of the proposals is not yet available, but OMB review is the last step in the rule-making process before they can be published.

The proposed regulations are designed to:

• Modernize and reform the H-2 visa programs. The Department of Homeland Security plans to issue a proposed rule to “modernize and reform” the H-2A and H-2B nonimmigrant worker programs. The changes would be aimed at reducing inefficiencies, enhancing pay protections and addressing “aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers.” The rule would not revise the temporary labor certification process.
• Improve protections for temporary agricultural workers. The Department of Labor plans to issue a proposed rule designed to improve working conditions and protections for temporary agricultural workers in the United States, including U.S. workers and H-2A foreign workers. DOL said the “use of the H-2A program has grown substantially in recent years and the Department is committed to protecting agricultural workers in light of their significant vulnerabilities.”

Additional Information: Both regulations will be published as proposed rules, meaning they will go through a notice-and-comment period before they are updated and published as final rules. BAL will continue following the development of these regulations and will provide updates on how they will impact H-2A and H-2B employers.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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.

A final rule to allow the Department of Homeland Security to provide alternatives to physical document examination in some scenarios in the Form I-9 process has cleared White House Office of Management and Budget review.

Key Points:

• The text of the rule is not yet available. OMB review is the last step in the rulemaking process before DHS can publish the rule in the Federal Register.
• DHS will post the text for public inspection at least a day before the rule is officially published.
• The department proposed the regulation in August 2022 and received more than 500 comments from the public.

Additional Information: The temporary U.S. Immigration and Customs Enforcement flexible policy will end July 31, and employers must physically review all documents they viewed virtually by Aug. 30.

BAL Analysis: The rule will allow DHS to authorize “alternative document examination procedures in certain circumstances or with respect to certain employers” in hopes of reducing burdens on employers and employees while preserving the integrity of the employment verification process. However, it is not yet clear when DHS will make alternative procedures available or which employers will be eligible to use them. BAL continues to monitor the progress of the rule and will provide updates as information is made available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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 released the August Visa Bulletin, showing significant retrogression in the employment-based first preference category for India and the third preference category for all other countries except China. Employment-based second and third preference categories for China show some advancement.

U.S. Citizenship and Immigration Services announced it would use the Final Action Dates chart to determine employment-based filing eligibility for adjustment of status.

Final Action Dates: Key Movements

EB-1

• China EB-1 will remain at Feb. 1, 2022.
• India EB-1 will retrogress more than 10 years to Jan. 1, 2012.
• All other countries under EB-1 will move from current to Aug. 1, 2023.

EB-2

• China EB-2 will advance one month to July 8, 2019.
• India EB-2 will remain at Jan. 1, 2011.
• All other countries under EB-2 will advance six weeks to April 1, 2022.

EB-3

• China EB-3 will advance two months to June 1, 2019.
• India EB-3 will remain at Jan. 1, 2009.
• All other countries under EB-3 will retrogress 21 months to May 1, 2020.

Final Action Dates for Employment-Based Preference Cases:

Preference	All Other Countries	China	India	Mexico	Philippines
EB-1	Aug. 1, 2023	Feb. 1, 2022	Jan. 1, 2012	Aug. 1, 2023	Aug. 1, 2023
EB-2	April 1, 2022	July 8, 2019	Jan. 1, 2011	April 1, 2022	April 1, 2022
EB-3	May 1, 2020	June 1, 2019	Jan. 1, 2009	May 1, 2020	May 1, 2020

Additional Information: USCIS said it would use the Dates for Filing chart for family-based adjustment-of-status applications next month.

The August Visa Bulletin stated that it would introduce an EB-1 final action date and retrogress EB-3 for Rest of World countries, Mexico and the Philippines to hold number use within the maximum allowed under the fiscal year 2023 annual limit. The State Department also said that it could no longer issue EB-1 visas for India without regard to visa allocations for other countries; therefore, applicants from India are no longer able to receive EB-1 numbers for FY2023.

BAL Analysis: As a reminder, it is likely the final action date will advance in October to at least the final action date announced in the July Visa Bulletin; however, the movement of the date depends on variables such as visa demand and the employment-based FY2024 annual limit. BAL will continue to monitor Visa Bulletin developments and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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 Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

PERM Processing: As of June 30, the department was adjudicating applications filed in September 2022 and earlier, conducting audit reviews on applications filed in May 2022 and earlier, and reviewing appeals for reconsideration filed in August 2022 and earlier.

Determinations:	March 2023	April 2023	May 2023
Adjudication	271 days	279 days	285 days
Audit Review	402 days	383 days	436 days

PWD Processing: As of June 30, the National Prevailing Wage Center was processing PWD requests filed in January 2023 and earlier for H-1B OES and PERM OES cases, November 2022 and earlier for H-1B non-OES cases, and September 2022 and earlier for PERM non-OES cases. Redeterminations were being considered on appeals filed January 2023 and earlier for H-1B cases, and November 2022 and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in June 2023 and earlier.

BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing slightly faster PERM issuances and PWD issuances for PERM OES and non-OES cases. BAL is seeing approvals for PERM applications filed in September 2022 and earlier, and is starting to see PWDs for requests filed in January 2023 and earlier for H-1B OES cases, November 2022 and earlier for H-1B non-OES cases, and January 2023 and earlier for PERM OES.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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 Department of Homeland Security will add eight new qualifying fields of study to its STEM Designated Degree Program List, according to a notice scheduled to be published in the Federal Register tomorrow.

The government uses the STEM Designated Degree Program List to determine F-1 students’ eligibility for the 24-month extension of their post-completion Optional Practical Training, based on their science, technology, engineering or mathematics degree. Additions to the list make more students eligible for the STEM OPT extension.

The additions mark the second substantive update to the list since the STEM OPT regulation took effect in 2016, with 22 fields added in January 2022. The eight fields that will be added are:

• Composite Materials Technology/Technician (CIP code: 15.0617).
• Demography and Population Studies (45.0501).
• Developmental and Adolescent Psychology (42.2710).
• Geospatial Intelligence (43.0407).
• Institutional Research (13.0608).
• Landscape Architecture (04.0601).
• Linguistics and Computer Science (30.4801).
• Mechatronics, Robotics and Automation Engineering Technology/Technician (15.0407).

Additional Information: The update will take effect upon the notice’s publication in the Federal Register, which is scheduled for tomorrow, July 12. More information about each field of study is available in the prepublication version of the notice.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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.

U.S. Customs and Border Protection announced that travelers who have visited Cuba on or after Jan. 12, 2021, or are nationals of Cuba are ineligible to travel to the United States under the Visa Waiver Program using an Electronic System for Travel Authorization.

Key Points:

• Travelers who visited Cuba on or after Jan. 12, 2021, are ineligible for travel under the VWP using an ESTA.
• Travelers who hold dual nationality with both a VWP country and Cuba are not eligible for travel under the VWP using an ESTA.
• Individuals who are ineligible to travel under the VWP must apply for a visa to enter the United States.
• If an ESTA has already been approved and CBP determines that the traveler has been in Cuba or holds dual nationality with both a VWP country and Cuba, the ESTA will be revoked.
• Travelers whose ESTA has been revoked will receive a notification that their ESTA status has changed and can check their updated status on the ESTA Mobile App or on this website.

Additional Information: On Jan. 12, 2021, the U.S. Secretary of State designated Cuba as a State Sponsor of Terrorism, making individuals who have been in Cuba on or after Jan. 12, 2021, ineligible for travel under the VWP. The designation also makes individuals who are dual nationals of both a VWP country and Cuba at the time of applying for an ESTA ineligible for travel under the VWP. More information is available here.

BAL Analysis: Travelers who are ineligible to travel under the VWP are reminded that they are not prohibited from traveling to the United States. Those who are ineligible to travel under the VWP may apply for a visa at any U.S. embassy or consulate.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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.