The Department of Homeland Security (DHS) has extended an exemption that allows certain nonimmigrants traveling from Ukraine to enter the U.S. without showing proof of a COVID-19 vaccination.

Key Points:

  • Nonimmigrants can enter the U.S. without showing proof that they are fully vaccinated against COVID-19 through April 30, 2022, if they:
    • Are traveling with a U.S. citizen or lawful permanent resident.
    • Were physically present in Ukraine as of Feb. 10.
    • Have valid travel documents allowing them to travel to the U.S.
  • Individuals who meet these requirements must agree to:
    • Take a COVID-19 test within three to five days after entering the U.S.
    • Quarantine for seven days and self-isolate if they receive a positive COVID-19 test or develop COVID-19 symptoms.
    • Become fully vaccinated against COVID-19 within 60 days after entering the U.S. if they are staying in the country for longer than 60 days.

Additional Information: The Centers for Disease Control and Prevention (CDC) extended its waiver on the pre-departure COVID-19 testing requirement through May 1 for some individuals physically present in Ukraine as of Feb. 10, including U.S. citizens, lawful permanent residents and nonimmigrant foreign nationals traveling with a U.S. citizen or lawful permanent resident. More information 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. Citizenship and Immigration Services (USCIS) has proposed a new version of the Form I-9, aiming to streamline the verification of employment eligibility.

Key Points:

  • USCIS published its proposal for an updated version of the Form I-9 in the Federal Register today. The agency will accept comments on the proposal until May 31 and will review the comments before finalizing a new form.
  • The current form is scheduled to expire on Oct. 31. USCIS will announce the date employers are required to begin using the new version of the form.
  • USCIS estimates that the proposed changes will reduce the time required to complete the form from 35 to 34 minutes if completing on paper, and 26 to 25 minutes if completing electronically. These estimates include the time required to review instructions and complete and retain the form.
  • The proposed changes to the form include:
    • Condensing Sections 1 and 2 on a one-page “Main Form.”
    • Designating Section 3 the “Reverification and Rehire Supplement to the Form I-9.”
    • Adding information about the M-274 handbook and acceptable receipts to the “Lists of Acceptable Documents.”
    • Shortening the form instructions from 15 pages to seven.
  • The proposed form, instructions and tables explaining the changes are available here. Officials also posted updated information on the e-Verify website here.

Additional Information: BAL will follow developments related to the proposed new Form I-9. Besides the changes described above, DHS has indicated it plans to publish a notice of proposed rulemaking to provide an optional alternative to physical examination for certain employers. Temporary measures that allow for remote document verification in some cases remain in effect through April 30. BAL has urged USCIS to modernize the I-9 process. This week, BAL attorneys discussed upcoming I-9 changes at the SHRM Employment Law & Compliance Conference in a panel called “Form I-9 & E-Verify Compliance: What’s in Store for Employers in 2022.” More information 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. Citizenship and Immigration Services (USCIS) announced today that it has conducted the H-1B lottery after having received enough registrations for its H-1B quotas during the electronic pre-registration period.

Key Points:

  • Registrants’ online accounts will now show one of the following statuses for each registration.
    • Selected. The registration was selected to file an H-1B cap petition.
    • Submitted. The registration was not selected in the initial lottery but remains eligible for possible later selection.
    • Denied. Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary and the registration is invalid for this fiscal year.
  • Petitioners may begin to file H-1B cap-subject petitions for selected candidates April 1. The filing period is expected to last 90 days.
  • In each of the last two years, USCIS conducted more than one lottery, but there is no guarantee this will happen again this year. Several factors will determine whether there are subsequent lotteries, including the number of H-1B petitions filed from the selected registrations.
  • USCIS has not yet said how many registrations it received, only that it received enough to reach the H-1B cap, including the advanced degree exemption (master’s cap).

BAL Analysis: Employers should begin preparing to file full petitions for selected candidates. While the filing period will remain open for 90 days, employers should prioritize time-sensitive candidates such as F-1 students on cap-gap and others whose status may expire soon. BAL will continue to follow developments related to the H-1B cap season 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.

U.S. Citizenship and Immigration Services (USCIS) posted its new premium processing regulation for public inspection today, unveiling a plan to make additional benefit categories eligible for the service in the coming months and years.

Key Points:

  • Benefit Categories. The following benefit categories will be eligible for premium processing under the new rule.
    • Form I-140 for EB-1 multinational executive or manager and EB-2 advanced degree or exceptional ability seeking national interest waiver (NIW). The premium processing fee for this category will be $2,500; the processing time frame will be 45 days.
    • Form I-539 change of status to F-1, F-2, J-1, J-2, M-1, or M-2 NIV status, or change of status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, R-2 NIV status. The fee for this category will be $1,750; the processing time frame will be 30 days.
    • Form I-765 Employment Authorization Document (EAD) application. The fee will be $1,500; the processing time frame will be 30 days.
  • Implementation. The regulation is expected to take effect on May 31, but USCIS will gradually phase in the service for the new request types. USCIS plans to expand premium processing to the two I-140 classifications and certain Form I-539 and I-765 categories this fiscal year. The agency estimates it will not be able to expand to the additional Form I-539 and I-765 categories until FY 2025. USCIS will post announcements on its website about the availability of premium processing as it becomes available for newly designated immigration benefit requests.
  • Publication. The rule is scheduled to be published in the Federal Register tomorrow, March 30. A pre-publication version is available here.

Additional Information: USCIS announced the premium processing rule as part of a broader package of initiatives to reduce backlogs and provide relief to foreign nationals affected by processing delays. USCIS recently sent a final rule for White House review that would temporarily increase the automatic extension period for certain EAD renewal applicants. The text of this rule is not yet available. USCIS is also working on hiring more officers and improving case processing technology, with the goal of shorter adjudication time frames. The COVID-19 pandemic and funding and staffing issues have exacerbated backlogs across visa categories, and USCIS officials have said reducing wait times is one of the agency’s top priorities.

BAL Analysis: The extension of premium processing to additional benefit categories will shorten processing times for eligible applicants who pay the applicable fee. USCIS will begin extending premium processing this year; however, some benefit categories will not have premium processing until FY 2025. This is because under law, USCIS must ensure that its implementation or expansion of premium processing does not result in an increase in processing times for other immigration benefit requests. BAL will continue monitoring the implementation of the premium processing regulation and other initiatives to ease immigration processing and will update clients 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 a temporary policy that allows some U.S. citizens to return to the U.S. on an expired passport. The policy was set to expire on March 31, 2022, and will be extended until June 30, 2022.

Key Points:

  • Under the policy, U.S. citizens currently abroad whose passports expired on or after Jan. 1, 2020, may be able to return to the U.S. using their expired passport.
  • Certain criteria apply, and travelers are encouraged to confirm their eligibility on this website before finalizing travel plans.
  • Travelers cannot use expired passports to travel from the U.S. to a foreign country or from one foreign country to another for any length of stay longer than an airport connection in route to the U.S. or a U.S. territory.

Additional Information: U.S. citizens are reminded that all air travelers, regardless of their vaccination status, must have proof of a negative COVID-19 test taken within one day of their flight’s departure to the U.S. Individuals wishing to renew their expired passport can find processing times and instructions here.

BAL Analysis: While the extension will ease travel procedures for some U.S. citizens returning to the U.S., it only applies to a limited number of travelers. BAL continues to urge individuals to consult their BAL professional before planning international travel, as policies may change with little notice and could affect travelers’ ability to re-enter or return to the U.S.

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) recently announced that it would end a temporary policy allowing employers to accept expired List B identity documents when completing Form I-9 Employment Eligibility Verification.

Key Points:

  • Beginning May 1, 2022, employers will only be permitted to accept List B documents that are not expired.
  • Employers can continue to accept expired List B documents from now through April 30, 2022.
  • Employers are required to update their I-9 forms by July 31, 2022, for any employees who presented an expired List B document between May 1, 2020, and April 30, 2022.
  • To comply with Form I-9 requirements, employees must present a List B identity document along with an acceptable List C document evidencing employment authorization or a List A document that demonstrates both identity and work authorization. Information about acceptable documents can be found on the U.S. Citizenship and Immigration Services (USCIS) website.

Additional Information: DHS adopted the temporary policy in May 2020 in response to the challenges people were facing getting List B documents renewed during the COVID-19 pandemic. DHS said that it was ending the temporary policy now that “document‑issuing authorities have reopened and/or provided alternatives to in‑person renewals.” For more information on the updated requirements, please see the table in the DHS announcement, available here.

BAL will be presenting with a USCIS representative about “Form I-9 & E-Verify Compliance: What’s in Store for Employers in 2022” at the SHRM Employment Law & Compliance Conference. For details and to register for the conference, click 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. Citizenship and Immigration Services (USCIS) announced Friday that it would update the USCIS Policy Manual regarding the documentation certain E and L nonimmigrant spouses can use as evidence of authorization to work in the U.S.

  • In November, following the settlement of Shergill, et al v. Mayorkas, USCIS announced that E and L spouses would be employment authorized based on their valid E or L nonimmigrant status.
  • Beginning Jan. 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with new Class of Admission (COA) codes (E-1S, E-2S, E-3S, and L-2S) for certain E and L spouses. Individuals can now use unexpired Forms I-94 with one of these new codes as a List C document for Form I-9 employment verification.
  • USCIS said Friday that on or around April 1, it would begin mailing notices to E and L spouses ages 21 and over who have an unexpired Form I-94 that USCIS issued before Jan. 30, 2022. Individuals can use this notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, as evidence of employment authorization.
  • E and L spouses who are under 21, or those who have not received a notice by April 30, should email E-L-married-U21@uscis.dhs.gov to request one.

BAL Analysis: Under the terms of the the Shergill settlement, USCIS made significant, beneficial changes to work authorization rules for many spouses of high-skilled workers. The agency is now taking steps to clarify what documentation E and L spouses may use to show that they are authorized to work in the U.S. BAL will continue following this matter 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 provided guidance to U.S. citizens who are eligible to locally file Form I-130 petitions for Afghan, Ethiopian and Ukrainian immediate relatives.

Key Points:

  • U.S. citizens who are physically present overseas with their Afghan, Ethiopian or Ukrainian immediate family members and have not filed an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS) can request to file a Form I-130 petition locally at the closest U.S. embassy or consulate that is currently processing immigrant visas.
  • Such U.S. citizens can request to locally file the I-130 petition on behalf of their spouse, unmarried children under the age of 21, and parents who fled Afghanistan after Aug. 2, 2021, Ethiopia after Nov. 1, 2020, or Ukraine after Feb. 1, 2022.
  • Those wishing to locally file a Form I-130 petition should email the nearest U.S. embassy or consulate’s Immigrant Visa Unit. Immigrant Visa Unit email addresses are available on individual embassy or consulate websites. A list of U.S. embassy and consulate websites is available here.

Additional Information: Individuals who have already filed a Form I-130 petition with USCIS for their immediate family members and have yet to receive approval can contact USCIS here regarding expedited processing. More information regarding the immigration visa process 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.

Priority-date cutoffs will advance in India EB-2 but remain the same in other employment-based categories next month, according to the State Department’s April Visa Bulletin. U.S. Citizenship and Immigration Services (USCIS) announced it would use the Dates for Filing chart to determine whether employment-based applicants are eligible to file for adjustment of status.

Dates for Filing: Key Movements

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 advance one year to Sept. 1, 2014.
  • All other countries under EB-2 will remain current.

EB-3

  • China EB-3 will remain at April 1, 2018.
  • India EB-3 will remain at Jan. 22, 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 April 1, 2019 Current Sept. 1, 2014 Current Current
EB-3 Current April 1, 2018 Current Jan. 22, 2012 Current Current

Additional Information: USCIS confirmed that it would also use Dates for Filing for family-based applicants. More information 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.

President Joe Biden signed a federal spending bill this week that includes a boost in funding for U.S. Citizenship and Immigration Services (USCIS), a provision that could help the State Department reduce its processing backlog and reauthorizes the EB-5 immigrant investor program.

Key Points:

  • USCIS funding. The bill provides $275 million in funding for USCIS to address processing backlogs and delays. The COVID-19 pandemic and funding and staffing issues have exacerbated backlogs across visa categories, and USCIS officials have said reducing wait times is one of the agency’s top priorities.
  • Visa processing abroad. The bill allows the State Department to use Fraud Prevention and Detection fees for general consular operations to help reduce visa wait times. Like USCIS, the State Department is grappling with a backlog of cases due to the COVID-19 pandemic and related staffing issues. It is not yet clear how the State Department will use this authority.
  • EB-5 visa program. The bill reauthorizes the EB-5 Regional Center Program, which allows qualifying foreign investors to apply for green cards. Funding for the EB-5 program lapsed on June 30, 2021; Congress has now revived it through September 2027. The bill also contains adjustments to EB-5 investment thresholds and new oversight provisions.
  • Other immigration programs. The bill reauthorizes the E-Verify program, the Conrad 30 waiver for J-1 physicians and the non-minister special immigrant religious workers program through the end of the fiscal year.
  • Assistance for Ukraine. The bill includes $13.6 billion in aid for Ukraine, including $1.4 billion for migration and refugee assistance.

BAL Analysis: The passage of the spending bill averted the possibility of a government shutdown and, the legislation includes provisions that could help USCIS and the State Department reduce processing backlogs. BAL will follow the implementation of the new legislation 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.