The Department of Homeland Security (DHS) will publish a proposed rule tomorrow that would allow the agency to provide optional alternatives to physical document examination in some scenarios in the Form I-9 process.

Key Points:

  • The proposal would not make immediate changes to the Form I-9 process.
  • The proposal would give DHS formal authority to allow alternatives to in-person review of physical Form I-9 documents:
    • As part of a pilot program.
    • Upon DHS’ determination that such procedures offer an equivalent level of security.
    • As a temporary measure to address a public health or national emergency.
  • The proposed rule will be published in the Federal Register tomorrow, Aug. 18. A prepublication version is available here. Once the proposal is published, DHS will accept comments from the public for 60 days.
  • DHS will also propose changes to the Form I-9 and instructions to allow employers to indicate when they rely on alternative document examination procedures.
  • DHS will seek input from the public on ways to reduce risks to the integrity of any alternative procedure, avoid discrimination and protect privacy interests.

Background: U.S. Immigration and Customs Enforcement (ICE) has provided temporary Form I-9 flexibilities that allow for remote document verification in some cases for eligible employers who are operating remotely because of COVID-19. The temporary flexibilities are currently scheduled to expire on Oct. 31. U.S. employers and business coalitions, including BAL, have urged DHS to make remote verification available permanently.

BAL Analysis: While the DHS proposal does not directly authorize remote document examination, it would create a legal structure that would allow the government to use alternative processes in the future. DHS also said it is “exploring alternative options” including making some of the COVID-19 measures permanent. BAL will continue to follow the possible changes on the Form I-9 process 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 Department of Homeland Security (DHS) has updated its COVID-19 vaccination requirements for individuals paroled into the U.S. through the “United for Ukraine” program.

Key Points:

  • Before traveling to the U.S., “United for Ukraine” beneficiaries who are six months and older must submit an attestation that they received at least one dose of an COVID-19 vaccine approved by the Food and Drug Administration or World Health Organization.
  • After entering the U.S., beneficiaries who are six months and older must submit another attestation that they have or will be fully vaccinated within 90 days after arrival or within 90 days after turning six months old.
  • Previously, beneficiaries younger than 5 years old qualified for an exception to the COVID-19 vaccination requirement because the vaccine was not approved for use in that age group.
  • Beneficiaries must submit their attestations through their USCIS online account. More information regarding the “Uniting for Ukraine” attestation requirements is available here.

Additional Information: Individuals will not be required to submit an attestation if they qualify for a vaccination exception. More information regarding “Uniting for Ukraine” is available on this DHS website. BAL will continue to follow developments specifically affecting Ukrainian nationals and will provide updates on important immigration 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.

Priority-date cutoffs will remain the same in key employment-based categories next month, according to the Final Action Dates published in State Department’s September Visa Bulletin.

Key Final Action Dates:

EB-1

  • All countries under EB-1 will remain current.

EB-2

  • China EB-2 will remain at April 1, 2019.
  • India EB-2 will remain at Dec. 1, 2014.
  • All other countries under EB-2 will remain current.

EB-3

  • China EB-3 will remain at April 22, 2018.
  • India EB-3 will remain at Feb. 15, 2012.
  • All other countries under EB-3 will remain current.

Final Action Dates 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 April 1, 2019 Current Dec. 1, 2014 Current Current
EB-3 Current April 22, 2018 Current Feb. 15, 2012 Current Current

Additional Information: U.S. Citizenship and Immigration Services (USCIS) confirmed it would use the Final Action Dates chart to determine employment-based filing eligibility in September. The Dates for Filing chart will not apply.
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 proposed rule that would allow the Department of Homeland Security (DHS) to provide optional alternatives to physical document examination in the Form I-9 process has cleared White House Office of Management and Budget (OMB) review.

Key Points:

  • The text of the proposed rule is not yet available, but the DHS has said it would “allow the Secretary (of Homeland Security) to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”
  • OMB review is the last step in the rulemaking process before the agency can publish the proposal. DHS will post the text for public inspection at least a day before the proposed rule is officially published.
  • The proposal will go through a notice-and-comment period, during which any member of the public may submit feedback, before being finalized.
  • U.S. Immigration and Customs Enforcement (ICE) has provided temporary Form I-9 flexibilities that allow for remote document verification in some cases for eligible employers who are operating remotely because of COVID-19. The temporary flexibilities are currently scheduled to expire on Oct. 31.

BAL Analysis: DHS said that the proposed rule would “reduce burdens on employers and employees while maintaining the integrity of the employment verification process.” U.S. employers and business coalitions, including BAL, have urged USCIS to make remote verification available permanently. BAL will continue following the proposal through the regulatory process 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. State Department has extended the validity of B-1, B-2 and B-1/B-2 visas to ten years for Saudi nationals.

Key Points:

  • As of Aug. 1, Saudi nationals traveling to the U.S. for business or tourism are eligible for B-1, B-2 and B-1/B-2 visas valid for ten years instead of five years.
  • The U.S. Embassy in Riyadh said, “Extending the term of the U.S. visa for Saudi nationals is one of the most tangible ways to deepen people-to-people ties and increase mutual understanding between our two countries.”
  • Individuals can view the State Department’s reciprocity schedule for Saudi Arabia here for more information regarding reciprocity fees, number of entries and validity periods for U.S. visas.

BAL Analysis: The change will facilitate business travel and reduce the inconvenience of having to apply for a visa more frequently. It may also ease processing workloads in the future by reducing the number of renewal applications.

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. Citizenship and Immigration Services (USCIS) has published updated web resources on temporary and permanent pathways to the U.S. for foreign nationals in science, technology, engineering, and math (STEM) fields.

Additional Information: The Biden administration has said attracting STEM workers is a priority and announced measures aimed at attracting STEM talent in January. In announcing the new resources last week, USCIS said the U.S.’s ability to attract global talent in STEM fields has “spurred path-breaking innovation, leading to the creation of jobs, new industries, and new opportunities for all Americans.” BAL will continue following the administration’s efforts to attract workers in STEM fields 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 Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

PERM Processing: As of July 31, the department was adjudicating applications filed in December and earlier, conducting audit reviews on applications filed in October and earlier, and reviewing appeals for reconsideration filed in March and earlier.

Average PERM processing times:

  • Adjudication – 221 days.
  • Audit review – 296 days.

PWD Processing: As of July 31, the National Prevailing Wage Center was processing PWD requests filed in January and earlier for H-1B (OES) and PERM (OES) cases and December and earlier for H-1B (non-OES) and PERM (non-OES) cases, according to the Labor Department. Redeterminations were being considered on appeals filed April and earlier for H-1B cases and PERM cases. Center director reviews were being conducted for PERM cases filed in May and earlier.

BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in December and earlier and is starting to see PWDs for requests filed in January and earlier for H-1B (OES) and PERM (OES) and December and earlier for H-1B (non-OES) and 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.

U.S. Citizenship and Immigration Services (USCIS) has provided clarification on what evidence can be used to support O-1A petitions with a focus in science, technology, engineering and mathematics (STEM) fields.

Key Points:

  • USCIS clarified that being named on a competitive government grant for STEM research can be a positive factor for showing that a beneficiary is at the top of his or her field.
  • Being named on a competitive government grant for STEM research has been added to the list of examples beneficiaries can use to prove their extraordinary ability in the STEM fields.
  • A full list of evidence that can be used to prove extraordinary ability is available in the USCIS Policy Manual.

Additional Information: O-1 nonimmigrant status is generally available to those with extraordinary ability in the sciences, arts, business, education and athletics, as well as for those with extraordinary achievement in the motion picture or television industry. More information on O-1 petitions is available here.

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 today that it would extend flexible measures for responding to certain requests and notices from the agency through Oct. 23, 2022. Additionally, the agency announced starting today, it has permanently adopted the policy of allowing applicants to submit electronically reproduced signatures.

The agency first introduced the measures in March 2020 because of COVID-19 and has extended them numerous times, most recently in March 2022.

Key Points:

  • Under the extension of temporary flexible deadlines, petitioners and applicants will continue to have an additional 60 days beyond the due date to respond to certain requests and notices issued by USCIS.
  • The extension applies to the following documents with an issuance date between March 1, 2020, and Oct. 23, 2022, inclusive.
    • Requests for Evidence.
    • Continuations to Request Evidence (N-14).
    • Notices of Intent to Deny.
    • Notices of Intent to Revoke.
    • Notices of Intent to Rescind.
    • Notices of Intent to Terminate regional centers.
    • Notices of Intent to Withdraw Temporary Protected Status.
    • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
  • USCIS also said it is evaluating which temporary policies should be made permanent, and that the flexible policy allowing electronically reproduced signatures announced in March 2020 is now a permanent policy.

Additional Information: USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

  • The form was filed up to 90 calendar days from the issuance of a decision; and
  • USCIS made the decision between Nov. 1, 2021, and Oct. 23, 2022, inclusive.

More information on USCIS’ response to the pandemic is available here.

BAL Analysis: Petitioners and individuals will have more time to respond to the designated requests under the extended temporary measures. The decision to permanently allow electronically reproduced signatures is welcome news. Petitioners and individuals are reminded that the reproduced signature must be of an original handwritten signature and they must retain copies of original documents containing the wet signatures.

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

Copyright © 2021 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) has reminded employers to update their I-9 forms if they received expired List B identity documents between May 1, 2020, and April 30, 2022 when a temporary policy was in place.

Key Points:

  • On May 1, the Department of Homeland Security (DHS) ended the temporary policy allowing employers to accept expired List B identity documents during Form I-9 Employment Eligibility Verification. Employers must only accept unexpired documents.
  • Employers have until July 31, 2022 to update their I-9 forms for any employees who presented an expired List B document during the temporary policy.
  • If still employed, employees who were verified under the temporary policy must provide an unexpired document that establishes identity. Employees may present the renewed List B document, a different List B document or a document from List A.
  • USCIS provides specific instructions for updating and annotating the Form I-9 on its website. Information about acceptable I-9 documents can be found on this website.

Additional Information: DHS adopted the temporary policy in May 2020 in response to the challenges to individuals in renewing documents during the COVID-19 pandemic. The temporary measures ended two years later on May 1. For more information on the updated requirements, please see the table on this USCIS 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.