U.S. Immigration and Customs Enforcement (ICE) announced this week that it would extend temporary Form I-9 flexibilities that were first implemented at the beginning of the COVID-19 pandemic and subsequently modified and extended in March 2021.

Key Points:

• ICE extended the temporary measures through July 31, 2023. The guidance had been scheduled to expire Oct. 31.
• The guidance temporarily allows employers operating fully remotely due to COVID-19 precautions to conduct verification of employee documents virtually, e.g., by using fax, email or video link, for the purpose of Form I-9 employment eligibility verification procedures. Employers that follow the virtual procedures must comply with certain guidelines when “normal operations” resume, including conducting physical inspections of documents that were viewed remotely within three business days.
• The agency will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. The guidance temporarily exempts these employees from physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis” or until the extension of I-9 flexibilities ends, whichever is earlier. It is important to note that this guidance does not apply to employees who are working remotely for reasons not related to COVID-19.
• Employers should consult the original March 2020 ICE guidance and the updated policy from March 2021, along with this week’s announcement for eligibility requirements and information on how to obtain, remotely inspect and retain copies of identity and employment eligibility documents. U.S. Citizenship and Immigration Services (USCIS) has also provided guidance on how to properly complete and annotate the Form I-9.
• Employers should monitor the Department of Homeland Security (DHS) and ICE websites for additional information about the temporary flexibilities.

Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in April. DHS proposed to formalize its authority to allow optional alternatives to physical examination for certain employers in August. The agency is currently accepting public feedback on the proposal through Oct. 17.

USCIS has confirmed that employers should continue using the Form I‑9, Employment Eligibility Verification, after its expiration date of Oct. 31, 2022, until further notice. DHS will publish a Federal Register notice to announce the new version of the Form I‑9 once it becomes available. BAL will provide updates as new information becomes available.

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

Copyright © 2022 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 Sept. 30, the department was adjudicating applications filed in February and earlier, conducting audit reviews on applications filed in November and earlier, and reviewing appeals for reconsideration filed in May and earlier.

Average PERM processing times:

• Adjudication – 242 days.
• Audit review – 358 days.

PWD Processing: As of Sept. 30, the National Prevailing Wage Center was processing PWD requests filed in January and earlier for H-1B OES and PERM OES cases, February and earlier for H-1B non-OES cases, and December and earlier for PERM non-OES cases, according to the Labor Department. Redeterminations were being considered on appeals filed in April and earlier for H-1B cases and PERM cases. Center director reviews were being conducted for PERM cases filed in July and earlier.

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

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

Copyright © 2022 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. Embassy in Qatar has announced that it will be closed for routine American Citizens Services during the 2022 World Cup.

Key Points:

• The U.S. Embassy in Qatar will be closed from Nov. 13, 2022, to Jan. 2, 2023, for routine American Citizens Services, including passport and notary services.
• The U.S. Embassy in Qatar will not process any passport renewals for those traveling for tourism purposes during the World Cup.
• U.S. citizens over the age of 18 may not need an appointment to renew their passport at the U.S. Embassy in Qatar. Individuals should use this tool to determine if they qualify or to book an appointment for minor children or themselves.
• Emergency appointments and services will remain available at the U.S. Embassy in Qatar during the closure.

Additional Information: Those who are traveling to Qatar for the World Cup are reminded that they must obtain a Hayya Card, hold a valid recruitment visa or work permit or be traveling for humanitarian reasons to enter the country. To apply for the Hayya Card, foreign nationals can download the Hayya to Qatar 2022 mobile application or visit this website. U.S. citizens are encouraged to enroll in the Smart Traveler Enrollment Program (STEP) if traveling to Qatar.

BAL Analysis: U.S. citizens who are living in Qatar and are in need of a new passport should renew their passport as soon as possible to avoid delays and complications. The U.S. Embassy in Qatar will continue to provide updated guidance for U.S. citizens traveling to the country for the 2022 World Cup. BAL will provide more 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 © 2022 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 November Visa Bulletin, showing no movement in key employment-based categories next month. U.S. Citizenship and Immigration Services (USCIS) announced it would use the Dates for Filing chart for employment-based filings.

Key Updates in Dates for Filing:

EB-1

• All countries under EB-1 will remain current.

EB-2

• China EB-2 will remain at July 8, 2019.
• India EB-2 will remain at May 1, 2012.
• All other countries under EB-2 will remain current.

EB-3

• China EB-3 will remain at July 15, 2018.
• India EB-3 will remain at July 1, 2012.
• All other countries under EB-3 will remain current.

Dates for Filing for Employment-Based Preference Cases:

Preference	All Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines
EB-1	Current	Current	Current	Current	Current	Current
EB-2	Current	July 8, 2019	Current	May 1, 2012	Current	Current
EB-3	Current	July 15, 2018	Current	July 1, 2012	Current	Current

Additional Information: USCIS announced it would use the Dates for Filing chart for employment-based filings in November. BAL will continue following the Visa Bulletin 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 © 2022 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. Court of Appeals for the Fifth Circuit on Wednesday held that the 2012 memorandum that created Deferred Action for Childhood Arrivals (DACA) was unlawful. However, the court sent the case back to a lower court, asking a trial judge to consider the legality of DACA regulations the Biden administration issued in late August.

Key Points:

• The Obama administration issued the memorandum that created DACA in June 2012, shielding hundreds of thousands of “Dreamers” (immigrants who were unlawfully present in the U.S. after being brought to the country as children) from deportation and allowing them to apply for work authorization.
• In July 2021, a federal judge in Texas ruled that the Department of Homeland Security (DHS) did not follow proper procedures when establishing the program. The Justice Department appealed the ruling. The Fifth Circuit heard arguments in the case in July.
• In August, the Biden administration published a regulation to “preserve and fortify” DACA, motivated in part to protect the program from legal challenges. The regulation is currently set to take effect Oct. 31 but is subject to litigation.
• The Fifth Circuit concluded in its ruling Wednesday that the district court was correct in vacating the 2012 DACA memorandum. The appellate court also concluded, however, that the district court is in “the best position to review the administrative record” and determine whether this holding properly applies to the 2022 regulation. The appellate court urged the district court “to move this case forward as expeditiously as possible.”
• The ruling does not immediately change the status quo for DACA recipients because the Fifth Circuit left in place a partial stay issued by the lower court. Currently, DHS continues to adjudicate only renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients.

BAL Analysis: Today’s ruling does not change the status quo for current DACA beneficiaries, but given the uncertainty around the litigation, individuals are urged to renew their DACA and related employment authorization as soon as possible. BAL will continue to monitor the ongoing litigation closely and provide updates on important developments related to DACA.

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

Copyright © 2022 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 opened registration for the Diversity Visa 2024 lottery today. Up to 55,000 diversity immigrant visas will be available to nationals of countries with historically low immigration to the U.S.

Key Points:

• Registration began today, Oct. 5, at noon EDT and closes Nov. 8 at noon EST.
• Applicants must register online by submitting the diversity visa entry form available at the State Department’s e-DV website. Paper applications are not accepted. Entries are limited to one per person; multiple entries render entrants ineligible.
• Lottery winners are selected at random. Registrants are given a confirmation number that they may use to check whether they have been selected starting May 6, 2023, on the E-DV website.
• This year, individuals born in the following countries are ineligible: Bangladesh, Brazil, Canada, China (including Hong Kong), Colombia, the Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, the Philippines, South Korea, the U.K. (except Northern Ireland) and its dependent territories, Venezuela and Vietnam. Those born in Macau and Taiwan are eligible.
• The State Department’s complete instructions are available here.

BAL Analysis: Those interested in registering for the DV-2024 lottery are encouraged to do so early in the registration period. Individuals should beware of scams that frequently target DV lottery registrants. Registrants are reminded that the registration process is free and that the only way to enter the lottery and obtain lottery results is via the State Department’s E-DV website.

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

Copyright © 2022 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 three-judge panel with the U.S. Court of Appeals for the D.C. Circuit ruled Tuesday to uphold the legality of the Optional Practical Training (OPT) program, including the STEM extension.

OPT allows F-1 students who graduate from a U.S. university to work for 12 months in their field of study and for an additional 24 months if they have a degree in science, technology, engineering or math (STEM).

In her opinion, Judge Cornelia Pillard wrote that OPT is consistent with post-graduation programs that date back more than 70 years. In that time, Congress has amended Immigration and Nationality Act (INA) a number of times, but has never curbed executive authority to allow F-1 students to stay in the country for post-graduation training, Judge Pillard said.

Judge Pillard was joined in her opinion by Judge David Tatel. Judge Karen LeCraft Henderson agreed on a standing question but dissented on the merits.

Litigation challenging the OPT program dates back to 2014. In 2020, a federal district court ruled that OPT was lawful, and the plaintiffs in the case, the Washington Alliance of Technology Workers (WashTech), appealed to the D.C. Circuit Court.

Business organizations have shown strong support for OPT. Last year, 60 U.S. companies and trade organizations signed a friend-of-the-court brief urging the appeals court to protect OPT and saying the program helps employers fill “persistent vacancies” in STEM positions.

BAL Analysis: Tuesday’s ruling marks a significant legal victory for supporters of OPT, though WashTech will likely pursue further judicial review. BAL will continue to follow the litigation and will provide updates on important developments relating to OPT.

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

Copyright © 2022 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. Embassy in New Delhi’s Minister Counselor for Consular Affairs, Don Heflin, provided an update on visa processing in India last week, outlining the steps officials are taking to reduce their processing time and appointment backlog. Highlights from the event are as follows.

Reducing the visa backlog.

• Increased staffing. Mission India plans to be at 100 percent staffing within the next year. At the height of the COVID-19 pandemic, Mission India was operating at about 50 percent capacity. Now it is at about 70 percent and climbing steadily.
• Adding temporary staff. The State Department is sending temporary officers to assist as Mission India pushes toward its normal staffing level.
• Utilizing expanded Dropbox authorities. Mission India continues to utilize its expanded Dropbox authorities to reduce the number of cases requiring an in-person interview.
• Shifting work. Officials are also sending interview waiver/Dropbox cases to posts outside of India. Wait times for these appointments should begin to drop within the next two or three weeks.

Visa interview appointments.

• Appointment openings. In the next few weeks, India will open 100,000 appointments for 2023 for H and L visas, including for first-time H and L applicants.
• From Dropbox to interview: Mission India is updating its software to make it easier for applicants who would qualify for Dropbox appointments to instead seek an in-person interview (and request an expedite, if needed). This change is expected in the coming days.
• Third-party agents. Mission India also made some software changes to make it more difficult for third-party agents to take appointments.
• Placeholder appointments. There are no longer any placeholder appointments. Appointments in 2023 and 2024 are real. Applicants can change their appointment if an earlier appointment becomes available.

Expedite requests.

• The Embassy receives several hundred expedite requests each week. Officials do not have the capacity to grant every request and have strict criteria for the requests they do grant.
• For business travel, Mission India generally requires something more than standard business meetings, conferences, workshops or tradeshows for an expedite request to be approved. Officials may grant expedite requests for particularly large meetings, high-level executive travel or in cases where Indian nationals need to travel to the U.S. pursuant to a contract with a U.S. company.
• Criteria for expedite requests can be found here.

MRV Fees.

• The State Department is preparing to make an announcement about the validity of Machine Readable Visa (MRV) fees. Anyone who paid the MRV fee during the COVID-19 pandemic will need to book an appointment by Sept. 30, 2023, in order for the MRV fee to remain valid.
• The appointment can occur after Sept. 30, 2023, but must be booked before that date. Once an appointment is scheduled, the MRV will be locked in and will be valid for the related visa application.

Student visas (F, M and J visas).

• Visa issuance. Mission India issued more than 82,000 student visas this past summer, the most issued to any country.
• Visa appointments. Student visa appointments will be scheduled for mid-to-late November through the end of December. Half of the appointments will open for booking in mid-October; the second half will open in mid-November.
• J visas. Mission India updated its system to allow for separate scheduling of exchange visitor (J) visas. Applicants should see a small number of appointments available each week.
• First-time applicants. As it did last year, Mission India will begin the interview season by giving as many first-time applicants as possible a chance to apply; toward the end of the interview season, those who have been previously refused will have a chance to apply for an interview.

Immigrant visas (green cards).

• Family-based green cards. Mission India expects the family-based green card backlog to be cleared within the year for those whose priority dates are current.

BAL Analysis: While Mission India is taking steps to reduce its backlog, applicants should continue to expect visa processing and appointment delays at the U.S. embassy and consulates in India. Service levels and processing times may vary from post to post. BAL will continue to monitor efforts to address the delays and will provide information as it becomes available. Employers and employees should continue to consult their BAL professional before planning international travel.

The full Consular Q&A with Donald Heflin is available here.

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

Copyright © 2022 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 (CBP) has announced that nationals of the Dominican Republic are now eligible to apply for the U.S. Global Entry Program.

Key Points:

• Global Entry allows expedited clearance for pre-approved, low-risk travelers when entering the U.S. through designated airports.

• Applicants must apply for Global Entry through this website and pay a nonrefundable government fee of $100 for a five-year membership.
• Once the online application is conditionally approved, applicants can schedule an interview with a CBP officer or complete their interview upon arriving in the U.S. at an Enrollment on Arrival location.
• Global Entry membership does not replace the need for travelers to have a valid visa (if required) before travel.

Additional Information: Those with Global Entry enter the U.S. through automatic kiosks at numerous U.S. airports and at preclearance locations around the world. The Dominican Republic joins 14 other Global Entry countries, including Argentina, Brazil, Bahrain, Colombia, Germany, India, Mexico, the Netherlands, Panama, Singapore, South Korea, Switzerland, Taiwan and the U.K.

BAL Analysis: Dominican nationals who frequently travel to the U.S. for business or tourism will benefit from the program, as their entry process will be expedited at many U.S. airports. Global Entry members can also benefit from security prescreening at designated international airports before boarding a flight to the U.S. Travelers are reminded that they must still have a valid visa, if required, before traveling to the U.S.

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

Copyright © 2022 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 (USCIS) announced Thursday that it would extend the temporary waiver of a requirement that civil surgeons sign required medical reports no more than 60 days before applicants submit adjustment of status applications.

Key Points:

• The waiver had been set to expire tomorrow, Sept. 30, but will now remain in place through March 31, 2023.
• Until then, USCIS will accept applications for an underlying immigration benefit (including the Form I-485, Application to Register Permanent Residence or Adjust Status) even if the civil surgeon signed the Form I-693, Report of Medical Examination and Vaccination, Record more than 60 days earlier.
• USCIS said the waiver would help applicants who have been impacted by the COVID-19 pandemic and related processing delays. The agency also said the waiver would benefit Afghan nationals evacuated under Operation Allies Welcome, who completed immigration medical examinations but could not apply for adjustment of status within 60 days of a civil surgeon signing their Form I-693.

Additional Information: USCIS’s policy alert on this change is available here.

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

Copyright © 2022 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.