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.

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U.S. Citizenship and Immigration Services (USCIS) has begun “decoupling” the adjudication of employment authorization documents (EADs) and advance parole (AP) travel authorization in a bid to speed up EAD processing.

Key Points:

  • Typically, when an applicant requests both an EAD and AP, USCIS issues a “combination card” that covers both employment and travel authorization.
  • In recent weeks, USCIS has issued EADs that do not include AP travel authorization.
  • The American Immigration Lawyers Association (AILA) reported that the “processing change is intentional as the agency is working through the EAD backlog and is prioritizing EAD adjudication as it seeks to avoid applicants experiencing a lapse or prolonged lapse in employment authorization.”
  • USCIS has not provided information about how long this change in practice will remain in effect.

BAL Analysis: While USCIS typically approves EAD and AP simultaneously, the agency is not obligated to do so. The change in practice appears related to USCIS’ aim to issue EADs more quickly. Applicants who receive an EAD without AP travel authorization should consult their immigration counsel prior to any international travel. BAL will continue following this development 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 has announced the designation of Afghanistan for Temporary Protected Status (TPS).

Key Points:

  • The designation will remain in effect for 18 months from the date on which notice is published in the Federal Register.
  • In order to be eligible for the designation, individuals must have continuously resided in the U.S. since March 15, 2022.
  • Individuals who attempt to travel to the U.S. after March 15, 2022, will not be eligible for TPS under the designation.
  • DHS said the forthcoming Federal Register notice would include instructions for applying for TPS and related Employment Authorization Documents (EADs).

Additional Information: DHS said Secretary Alejandro N. Mayorkas designated Afghanistan for TPS on the bases of ongoing armed conflict and extraordinary and temporary conditions that prevent the country’s nationals from returning safely. The announcement followed shortly after DHS’ designation of Ukraine for TPS earlier this month.

BAL Analysis: BAL will follow developments related to Afghanistan TPS designation and will provide updated 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.

This year’s H-1B electronic registration period will close at noon ET this Friday, March 18.

Key Points:

  • Petitioners for cap-subject H-1B visas must submit an electronic registration during the registration period for each prospective H-1B candidate.
  • Petitioners or their representative must submit registrations via a myUSCIS online account and pay a $10 government filing fee for each registration.
  • Registrations cannot be submitted after the March 18 deadline. No priority is given to early submissions.
  • Following the registration period, USCIS will conduct a random lottery of properly submitted registrations if there are more registrations than visas available.
  • The agency intends to send selection notifications via users’ myUSCIS accounts by March 31.
  • Petitioners whose registrations are selected in the lottery will be invited to file full H-1B petitions beginning April 1.

Background: This will be the third cap season in which USCIS will use the H-1B electronic registration process. USCIS received 308,613 registrations last year and 274,237 the year before. Demand for H-1B visas is expected be high again this cap season. In each of the last two years, USCIS has conducted more than one lottery. Whether this happens again will depend on several factors, including how many petitions are submitted from the registrations that are selected in the initial draw.

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 shared additional information to further clarify visa options and outline alternatives to visas for Ukrainians affected by the Russian invasion of Ukraine.

  • Nonimmigrant visas. The State Department clarified that nonimmigrant applicants must be able “to demonstrate intent to leave the United States after a defined period in order to return to a residence abroad” to be issued a nonimmigrant visa (NIV), and that NIVs are “not the appropriate tool to begin an immigrant, refugee, or resettlement process.”
  • Immigrant visas. The State Department clarified scheduling of appointments and transferring of cases, requesting expedited processing, as well as local filing options. The full guidance is available here. Individuals who filed a Form I-130 petition with USCIS and have yet to receive approval can request U.S. Citizenship and Immigration Services (USCIS) to expedite the adjudication of the petition. USCIS considers all expedite requests on a case-by-case basis and may require additional documentation if it approves the request. More information on how to make an expedite request is available here.
  • COVID-19 travel procedures. The Department of Homeland Security (DHS) and the Centers for Disease Control and Prevention (CDC) have exempted certain nonimmigrant travelers from Ukraine from COVID-19 testing and vaccination requirements for entering the U.S. More information is available here.

Additional Information: NIV applications can be processed wherever Ukrainian nationals are physically present and can schedule an appointment. The COVID-19 pandemic has delayed processing times at a number of embassies and consulates. Information about wait times is available here. The State Department has designated the U.S. Consulate General in Frankfurt, Germany, as the processing post for all Ukrainian immigrant visa applications other than adoption cases. Adoption cases are being handled by the U.S. Embassy in Warsaw, Poland.

The full State Department guidance, including information on adoption cases, humanitarian parole, refugee status and local resources for displaced Ukrainians, is available here. The effect of the war in Ukraine on immigration and mobility continues to change. BAL will provide updated 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 announced last week that it would resume limited immigrant visa processing at the U.S. Embassy in Havana, Cuba.

Key Points:

  • Once the change takes effect, the Embassy in Havana will resume some immigrant visa processing and will schedule a limited number of immigrant visa appointments for applicants whose information is documentarily complete.
  • The U.S. Embassy in Georgetown, Guyana, will remain the primary processing location for Cuban immigrant visa applications. During a transition period, the National Visa Center will schedule applicants for appointments at either the U.S. Embassy in Havana or at the U.S. Embassy in Georgetown depending on operational needs.
  • The Embassy in Havana will continue to provide essential American Citizens Services and limited emergency nonimmigrant visa processing.

Background: In 2015, the U.S. opened the Embassy in Havana, marking the return of formal diplomatic relations between the U.S. and Cuba. Under former President Donald Trump, the State Department reduced staff and services at the Embassy amid a spate of unexplained health incidents termed “Havana Syndrome.” The Embassy said the resumption of limited services is “part of the broader expansion of the Embassy’s functions to facilitate diplomatic and civil society engagement and to expand the provision of consular services.” Officials are expected to post more information on the Embassy website in the coming weeks.

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 Feb. 28, the department was adjudicating applications filed in September and earlier, conducting audit reviews on applications filed in June and earlier, and reviewing appeals for reconsideration filed in September and earlier.

Average PERM processing times:

  • Adjudication – 178 days.
  • Audit review – 292 days.

PWD Processing: As of Feb. 28, the National Prevailing Wage Center was processing PWD requests filed in August and earlier for H-1B (OES) cases, June and earlier for H-1B (non-OES) cases, September and earlier for PERM (OES) cases and June and earlier for PERM (non-OES) cases, according to the Labor Department. Redeterminations were being considered on appeals filed January and earlier for H-1B cases and December and earlier for PERM cases. Center director reviews were being conducted for PERM cases filed in January 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 August and earlier and is starting to see PWDs for requests filed in August and earlier for H-1B (OES) cases, June and earlier for H-1B (non-OES) cases, September and earlier for PERM (OES) cases and June 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.

U.S. Citizenship and Immigration Services (USCIS) has reminded the public of special services made available to those affected by extreme situations such as the invasion of Ukraine.

On a case-by-case basis, individuals affected by extreme situations and certain other unforeseen circumstances may request:

  • To change nonimmigrant status or extend nonimmigrant stay for an individual currently in the U.S.
  • Re-parole for those who have previously received parole by USCIS.
  • Expedited processing of advanced parole requests.
  • Expedited adjudication of off-campus employment authorization for F-1 students experiencing economic hardship and employment authorization applications.
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS.
  • Consideration of fee waiver requests because the individual cannot pay.
  • Flexibility for those unable to submit evidence or respond in a timely manner to a Request for Evidence or Notice of Intent to Deny and for those unable to attend a scheduled interview with USCIS.
  • To reschedule a biometrics appointment.

Additional Information: Individuals who are making a request listed above should explain how the invasion of Ukraine created the need for such a request. Those who lost evidence should include an explanation and a copy of a police report, insurance claim or other report as supporting information.

Employers and individuals are reminded that all Form I-9 requirements remain in place and should review instructions on how to verify employment eligibility of employees whose documents are lost or damaged. Individuals are reminded to update their addresses with USCIS to avoid possible delays in processing. More information regarding the special measures 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.

The Department of Homeland Security has announced the designation of Ukraine for Temporary Protected Status (TPS).

Key Points:

  • The designation will remain in effect for 18 months from the date on which notice of the designation is published in the Federal Register.
  • In order to be eligible for the designation, individuals must meet applicable requirements and have continuously resided in the U.S. since March 1, 2022.
  • Individuals who attempt to travel to the U.S. after March 1, 2022, will not be eligible for TPS under this designation.
  • DHS said the forthcoming Federal Register notice would include instructions for applying for TPS and related Employment Authorization Documents (EADs).

BAL Analysis: BAL will follow developments related to Ukraine’s TPS designation and will provide updated 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.