Form I-9 COVID-related flexibilities will end on July 31. U.S. Immigration and Customs Enforcement will give employers a 30-day grace period, or until Aug. 30, to reach compliance with Form I-9 document inspection requirements after the special measures end.

Key Points:

  • In March 2020, ICE introduced Form I-9 flexible measures that allow employers operating remotely because of COVID-19 to verify employee employment eligibility documents virtually, e.g., by fax, email or video.
  • These measures were extended several times, most recently in October 2022 through July 31.
  • Under the guidance, employers that follow virtual procedures must comply with certain guidelines when “normal operations” resume. Initially, this included conducting physical inspections of documents that were viewed remotely within three business days; ICE has now extended that period to 30 days from the date the temporary measures expire, i.e., until Aug. 30, 2023.

Additional Information: The Department of Homeland Security continues to work on a rule that would give ICE authority to allow remote inspection of documents in some cases. The agency published a proposed rule in August 2022 and received more than 500 public comments, including one from BAL. DHS is currently reviewing the public comments and plans to issue a final rule later this year.

BAL Analysis: The 30-day grace period will give employers some additional time to review documents in person once the temporary flexibilities end; however, this is still a tight time frame, particularly given that some employers have been relying on the temporary policy for more than three years. BAL continues to encourage companies that have not yet started in-person reviews to start planning as soon as possible. BAL will continue to monitor the development of DHS’ new I-9 rule 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.

U.S. Citizenship and Immigration Services has launched a new self-service tool allowing benefit requestors, and their attorneys and accredited representatives, to reschedule most biometric services appointments.

Key Points:

  • Individuals who have or create a USCIS online account can now reschedule most requests for biometric services appointments without having to call the Contact Center before the date of the appointment.
  • The biometric rescheduling tool can be accessed via a USCIS online account regardless of whether the pending case was submitted online or by mail.
  • The tool cannot be used to reschedule an appointment that has already been rescheduled two or more times, is within 12 hours or has already passed.
  • Previously, benefit requestors and accredited representatives could only request to reschedule a biometric services appointment by calling the USCIS Contact Center.

Additional Information: USCIS issued policy guidance explaining that the agency may consider an untimely request to reschedule a biometric services appointment and the effect of failing to appear for an appointment, as well as how the agency considers a timely request to reschedule a biometric services appointment for “good cause.” Good cause exists when the reschedule request provides sufficient reason for the benefit requestor’s inability to appear on the scheduled date. More information is available here.

BAL Analysis: The new biometrics rescheduling tool aims to improve customer service by removing barriers and reducing burdens to applicants while saving time, increasing efficiency and reducing call volume to the USCIS Contact Center, USCIS said. Individuals are reminded that USCIS only accepts untimely rescheduling requests made to the USCIS Contact Center and does not accept untimely requests to reschedule by mail or in person at a USCIS office or through the myUSCIS online rescheduling tool.

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 has opened a public comment period on its proposed E-Verify NextGen demonstration project.

Key Points:

  • USCIS is accepting comments from the public on the E-Verify NextGen demonstration project for 60 days, until Aug. 28, 2023.
  • USCIS stated that E-Verify NextGen will be built upon the existing USCIS and E-Verify web services capabilities and will be enhanced by electronic applications for both the employee and employer. E-Verify NextGen plans to:
    • Resolve E-Verify mismatches and electronically issue an employment-authorized result to individuals who E-Verify finds to be work authorized.
    • Give employees more direct control over their data privacy and a more direct stake in their employment eligibility verification process.
    • Allow employees to receive notification of and resolve E-Verify mismatches directly and remove the employer’s primary role in the mismatch resolution process.
  • USCIS has not yet provided details on when it will launch E-Verify NextGen. More information is available on this website. In the notice USCIS posted this week, the agency made available screenshots of the electronic applications the employee and employer would use under the proposed process.

Additional Information: USCIS is also accepting comments on changes to the Form I-9 instructions until Aug. 28. The current version of the Form I-9 can continue to be used until the government announces otherwise. As a reminder, 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. A final rule that would allow the Department of Homeland Security to provide alternatives to physical document examination in some scenarios in the Form I-9 process is currently under White House Office of Management and Budget review.

BAL Analysis: Through E-Verify NextGen, USCIS intends to further integrate the Form I-9 process with the E-Verify electronic employment eligibility confirmation process to create a more secure and streamlined employment eligibility verification process. USCIS has not indicated when it will launch the new process or what the parameters of the demonstration project will be (e.g., which employers will be eligible to use it and whether it will be a time-limited pilot). BAL will continue to monitor the progress of E-Verify NextGen and 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 Department of Homeland Security has announced the new leadership of U.S. Immigration and Customs Enforcement.

Key Points:

  • Homeland Security Secretary Alejandro Mayorkas tapped Patrick “P.J” Lechleitner to lead ICE as Deputy Director and Senior Official Performing the Duties of the Director, after acting director Tae Johnson recently announced his retirement.
  • Lechleitner previously served as the Acting Executive Associate Director for Homeland Security Investigations and as the Assistant Director for HSI’s International Operations Division. In these roles, Lechleitner was responsible for administering a budget of more than $160 million and the operational oversight of 80 offices in 53 countries.
  • Prior to his career at ICE, Lechleitner served as a police officer and was a member of the U.S. military. Lechleitner’s full biography is available here.

Additional Information: Johnson has led ICE as acting director under the Biden administration. President Biden’s nominee to direct ICE, Ed Gonzalez, removed himself from consideration for the post last year. The agency has not had a Senate-confirmed director since the Obama administration.

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.

President Joe Biden and Prime Minister Narendra Modi welcomed plans to streamline the process for Indian nationals to live and work in the United States following a bilateral meeting last week.

Key Points:

  • In a joint statement, Biden and Modi both supported an announcement by the U.S. State Department that it would launch a pilot to adjudicate domestic renewals of certain petition-based temporary work visas, including for Indian nationals, later this year.
  • State Department officials said they plan to implement this program for an expanded pool of H-1B and L visa holders in 2024 and eventually broaden it to include other visa categories.
  • The Department will publish a Federal Register notice regarding the domestic renewal pilot program, including eligibility requirements and program details, about a month before the pilot’s launch.

Additional Information: While recognizing steps taken to streamline processing of Indian visa applications, Biden and Modi acknowledged the need to further expedite this process. In their meeting, both leaders directed officials to identify additional ways to facilitate travel for business, tourism and professional purposes between the two countries.

BAL Analysis: The domestic visa renewal pilot may simplify the visa renewal process for some Indian nationals; however, details regarding the pilot launch date and eligibility requirements are not available at this time. Until a pilot is launched and eligibility requirements are known, all foreign nationals in the United States who require a valid visa to reenter the country must renew their visas abroad. As a reminder, this is a pilot; not everyone in the United States in E, H, I, L, O and P status will be eligible to participate. Visa wait times and processing delays continue despite the State Department’s ongoing initiatives to improve processing, such as the expanded visa interview waiver program and increased consular staffing. BAL will continue following the matter and will provide information as it 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.

Companies filing H-1B cap petitions for fiscal year 2024 are reminded that the 90-day filing period closes June 30.

Key Points:

  • Petitioners who have not yet filed a petition for candidates who were selected in the lottery must do so by June 30 in order for the petition to be considered.
  • Only petitioners with selected registrations may file H-1B cap-subject petitions for the beneficiary named in the selected registration notice. Online filing is not available for H-1B petitions.
  • U.S. Citizenship and Immigration Services received 780,884 total registrations this year, a 61.4% increase over the 483,927 from last year. The agency attributed the dramatic rise in part to a large increase in the number of registrations submitted on behalf of beneficiaries with multiple registrations.
  • The significant increase in multiple registrations has raised concerns of fraud, which USCIS is investigating. The impact of USCIS’ investigation into potential fraud on this year’s selections or the possibility of a second lottery remains to be seen.

BAL Analysis: Companies should work with their BAL professional to ensure that their H-1B cap petitions are filed before the June 30 deadline. Employers may also wish to work with their BAL attorney to consider alternatives for registrations that were not selected in March’s lottery. BAL will continue to monitor whether USCIS will invite more registrants to submit H-1B petitions for FY 2024.

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. State Department has provided further clarification on the upcoming India Employment-Based Third preference (EB-3) retrogression.

Key Points:

  • The State Department clarified that India is currently “oversubscribed for immigrant visas in numerically limited immigrant visa categories.”
  • Applicants chargeable to India are subject to prorating because the total demand for family and employment-based visas during this fiscal year will exceed the 7% per-country limit.
  • The Department estimates all prorated EB-3 visas available to applicants chargeable to India for FY2023 will be used by July 1.

Additional Information: The EB-3 Final Action Date for India is expected to advance once the annual limits reset in fiscal year 2024, beginning Oct. 1, 2023. The State Department previously reported that the retrogression “became necessary” because India’s EB-3 number use has been “consistently robust.” More information regarding the upcoming India EB-3 retrogression is available here.

BAL Analysis: On occasion, the State Department is able to allocate additional unused EB-3 visas to countries that have reached their allotted limit; however, due to “sufficient worldwide EB-3 demand” the Department is unable to do so at this time. As a reminder, while the Final Action Date is expected to advance in October for India EB-3, the movement of the date depends on variables such as visa demand and the Employment-Based 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 U.S. State Department published a final rule to remove the Consular Report of Birth Abroad as acceptable evidence of sole authority/custody.

Key Points:

  • The rule removes the CRBA from the list of acceptable documentary evidence of sole authority/custody if the CRBA lists only the applying parent.
  • The final rule is set to take effect on July 24. The full Federal Register notice is available here.
  • The State Department received two comments on the rule during the 60-day comment period; neither of the comments were opposed to the proposal.

Additional Information: The State Department had simultaneously proposed to allow non-applying parents or legal guardians to sign a statement of consent before a passport specialist as an alternative to signing it before a notary when an application is pending at a passport center. However, the Department postponed the publication of this amendment to a later date. More information regarding the proposal is available here.

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. State Department has provided guidance for U.S citizens traveling to Australia and New Zealand for the 2023 FIFA Women’s World Cup.

Key Points:

  • The 2023 FIFA Women’s World Cup is scheduled to take place across Australia and New Zealand from July 20 through Aug. 20.
  • The State Department encourages U.S. travelers to check the U.S. embassies’ websites for Australia and New Zealand for the most accurate travel information, including additional entry and exit requirements.
  • Before traveling to Australia, U.S. citizens should:
    • Read the State Department’s Australia Travel Advisory.
    • Ensure that they have a valid U.S. passport and an Australian visa or an approved Electronic Travel Authority to enter the country.
    • Visit the International Travel page on the Australian government’s website.
    • Review the Department’s Country Information page and the Australian government’s travel tips, including guidance on what travelers can and cannot bring into the country.
  • Before traveling to New Zealand, U.S. citizens should:
    • Read the State Department’s New Zealand Travel Advisory.
    • Ensure that their passports have at least three months’ validity from the date they depart for New Zealand and hold a valid visa or an approved New Zealand Electronic Travel Authority.
    • Review the Department’s information on New Zealand’s entry, exit and visa requirements on the Country Information page.
    • Know what food and goods individuals can bring into New Zealand and review the government of New Zealand’s information on its biosecurity procedures.

Additional Information: U.S. citizens are encouraged to sign up for the Smart Traveler Enrollment Program if they have not done so already to receive emergency/security alerts and make it easier for the State Department to assist them in case of an emergency.  More travel guidance for U.S. citizens traveling to Australia and New Zealand for the Women’s World Cup is available here.

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.

With the summer travel season getting into full swing, BAL urges employers and employees to take the following considerations into account when planning international trips.

Key Points:

  • U.S. embassy and consulate delays. The State Department has processed more visas in the last year than in any year since 2019. The agency expects to fully staff embassies and consulates this year and has improved administrative processing and gained other efficiencies. However, delays in consular processing continue, especially for tourists and business visitors. Foreign nationals who need a U.S. visa, whether renewing or applying for a new one, should plan ahead. Appointments may not be available at key visa processing posts.
  • Administrative processing. BAL has seen a reduction in the number of visa applications flagged for additional administrative processing, which typically lengthens the application timeline and may happen for a number of reasons, including government decisions to conduct more thorough security vetting. The National Vetting Center is helping decrease the number of people flagged as well as the time it takes to complete the vetting process. While some cases will continue to take longer, those involving applicants who appear for their interview or who submitted their paperwork through interview waiver since November are now taking about two weeks in most cases. Employers with employees who have an administrative processing case and have a particularly urgent need to be in the country should contact BAL.
  • Passport delays. U.S. passport services continue to be delayed. Routine passport services are taking 10 to 13 weeks from the date on which an application is received; expedited services are taking seven to nine weeks. Those in need of a passport should apply for one as soon as possible.
  • I-94 Stamp-free entry. Travelers arriving in the U.S. at certain ports of entry may not receive an ink-stamp in their passport by U.S. Customs and Border Protection. Instead, CBP may issues an online Form I-94 to track foreign nationals’ entry into the United States. Stamp-free entry can pose challenges to nonimmigrant visa holders, who need to provide proof of entry dates to U.S. Citizenship and Immigration Services to maintain their status. These foreign nationals are urged to always immediately download their I-94 from CBP’s online system each time they enter the country to ensure that their information is correct and, if it is not, promptly take action to fix any errors.
  • COVID-19 restrictions in other countries. Some countries are still enforcing COVID-19 travel restrictions and health protocols, including pre-travel testing requirements, screening upon arrival and, in some cases, mandatory quarantines. Many countries have different policies for vaccinated and unvaccinated travelers. Employees should be aware of their destination country’s requirements and procedures and factor additional time into their travel plans.

Additional Information: The U.S. COVID-19 national public health emergency ended on May 11. The U.S. also rescinded the vaccination requirement for nonimmigrant foreign nationals to enter the country. As a reminder, the State Department increased consular filing fees for nonimmigrant visa applications on June 17; more information regarding the fee increases is available here.

BAL Analysis: Employers and employees should continue to consult their BAL professional before planning any international travel.

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.