The U.S. State Department has posted updated information regarding litigation over the adjudication of fiscal year 2020 and 2021 Diversity Visas.

Key Points:

  • Between Aug. 17 and Sept. 30, 2021, four separate federal courts ordered the State Department to reserve or process Diversity Visas awarded in FY 2020 or 2021. Diversity Visa processing was significantly impacted due to the COVID-19 pandemic and related travel restrictions. Consequently, many applicants were not able to receive a visa before the Diversity Visa program periods for 2020 and 2021 ended.
  • The State Department is appealing all four court orders.
  • The courts have stayed their orders until the appeals are resolved. This means the State Department does not currently have to adjudicate any of the visas in question; however, the Department is required to make certain adjustments to its visa adjudication software so that it can process the visas if it is ordered to do so.
  • For more information on the four cases in question, visit this website.

BAL Analysis: BAL will continue to monitor the Diversity Visa cases 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 April 30, the department was adjudicating applications filed in October and earlier, conducting audit reviews on applications filed in August and earlier, and reviewing appeals for reconsideration filed in December and earlier.

Average PERM processing times:

  • Adjudication – 192 days.
  • Audit review – 283 days.

PWD Processing: As of April 30, the National Prevailing Wage Center was processing PWD requests filed in October and earlier for H-1B (OES) cases, September and earlier for H-1B (non-OES) cases and October and earlier for PERM (OES and non-OES), according to the Labor Department. Redeterminations were being considered on appeals filed February and earlier for H-1B cases and PERM cases. Center director reviews were being conducted for PERM cases filed in March 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 October and earlier and is starting to see PWDs for requests filed in October and earlier for H-1B (OES) cases, September and earlier for H-1B (non-OES) cases and October and earlier for PERM (OES and 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) will publish a Temporary Final Rule (TFR) to lengthen the automatic extension of certain Employment Authorization Documents (EADs).

Key Points:

  • Currently, certain applicants who file Form I-765, Application for Employment Authorization, qualify for automatic extensions of their expiring employment authorization and/or EADs for up to 180 days, if they:
    • Properly filed Form I-765 for a renewal of their employment authorization and/or EAD before their current EAD expired; and
    • Are otherwise eligible for a renewal, i.e., their renewal application is under a category that is eligible for an automatic 180-day extension, and the category on their current EAD matches the “Class Requested” listed on Form I-797C, Notice of Action.
  • The TFR temporarily increases the automatic extension period from up to 180 days to up to 540 days from the expiration date stated on the EAD. The list of EAD renewal categories eligible for the automatic extension is available here.
  • For renewal applications filed after May 4, USCIS will begin issuing Form I-797C Notices of Action with an explanation of the up to 540-day automatic extension period. The agency will update its website with more guidance to reflect the TFR.
  • Foreign nationals who filed their renewal application before May 4 will not receive a new notice but are still able to qualify for the longer extension. They will not need an updated Form I-797C to qualify for the longer extension. Form I-797C notices that refer to a 180-day automatic extension still meet the regulatory requirements and employees may present that document, along with the qualifying EAD, to receive the up to 540-day extension. H-4, L-2 and E dependent spouses must also present an unexpired Form I-94. Additional information about how to complete the Form I-9 to note the automatic extension is available here.
  • The TFR will be in effect from May 4, 2022, through Oct. 15, 2025; however, foreign nationals must file a qualifying renewal application by Oct. 26, 2023, to obtain an extension of up to 540 days. After that date, USCIS will revert to granting extensions of up to 180 days. USCIS will accept comments on the TFR until July 5, 2022.

Background: The TFR cleared White House review last week. It will be published in the Federal Register tomorrow, May 4. The prepublication version is available here.

BAL Analysis: The TFR is part of a package of initiatives USCIS announced in March to address processing delays. USCIS said Monday the TFR would help give the agency time to address staffing shortages, implement additional efficiencies and meet Director Ur Jaddou’s recently announced goal of achieving a three-month cycle time for EAD applications by the end of FY 2023. BAL will continue monitoring the implementation of the TFR and other initiatives to improve immigration processing times 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.

U.S. Secretary of State Antony J. Blinken has announced that U.S. diplomats will return Ukraine and said that the Embassy in Kyiv would probably reopen within weeks. For now, visa services are unavailable in Ukraine, and the State Department has further clarified visa options and alternatives for Ukrainian nationals.

Key Points:

  • The State Department is encouraging Ukrainian nationals to refer to the Department of Homeland Security’s (DHS) Uniting for Ukraine program that provides a pathway for displaced Ukrainian nationals and their immediate family members who are outside the U.S. to come to the U.S. and stay temporarily for up to two years.
  • Nonimmigrant visas are not an appropriate tool to begin an immigrant, refugee or resettlement process. Consular officers will refuse applications for those who apply for a nonimmigrant visa and do not demonstrate intent to leave the U.S. after a defined period to return to a residence abroad.
  • Immigrant visas are for foreign nationals who intend to live and work permanently in the U.S. The U.S. Consulate General in Frankfurt, Germany, is the designated processing post for Ukrainian immigrant visa applications. Newly scheduled immigrant visa cases will be slated for appointments at the consulate in Frankfurt. Transfers may be requested by contacting the receiving U.S. Embassy or Consulate’s Immigrant Visa Unit.
  • Ukrainians should not attempt to apply for visas to travel to the U.S. as refugees; instead, they should contact local authorities or United Nations Refugee Agency (UNHCR) for refugee processing. More information from UNHCR is available here.

Additional Information: The U.S. Embassy in Ukraine has been closed since February due to Russia’s military action and invasion. More information regarding the State Department’s guidance for Ukrainian nationals, including information on COVID-19 entry requirements, humanitarian parole, adoptions and refugee status, among other topics, is available here.

BAL Analysis: The situation in Ukraine may change with little or no notice and companies with employees in the country are encouraged to follow State Department information and warnings closely.

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 temporary policy allowing employers to accept expired List B identity documents during Form I-9 Employment Eligibility Verification will come to an end May 1.

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.
  • 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.
  • U.S. Citizenship and Immigration Services (USCIS) provides specific instructions for updating and annotating the Form I-9 on its website. Information about acceptable I-9 documents can be found here on the USCIS website.

Additional Information: The Department of Homeland Security (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 announced in March that the policy would end 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.

The Biden administration has formally launched “Uniting for Ukraine,” a humanitarian parole program that is key to its efforts to welcome 100,000 displaced Ukrainians to the U.S.

Key Points:

  • In order to participate in the program, Ukrainians must have a supporter in the U.S. who agrees to provide them with financial support during their time in the country.
  • U.S.-based supporters must first file the Form I-134, Declaration of Financial Support, with U.S. Citizenship and Immigration Services (USCIS) on behalf of a Ukrainian beneficiary. The government will vet applicants to ensure they can meet their financial obligations. USCIS began accepting applications Monday. Detailed information on who can be a supporter is available here.
  • In order to become a beneficiary, an individual must be a Ukrainian citizen (or the immediate family member of a Ukrainian citizen), must have resided in Ukraine as of Feb. 11 and must have been displaced by the invasion. They must also pass biographic and biometric security checks. The full list of criteria is available here.
  • Beneficiaries will be considered for humanitarian parole for up to two years in the U.S. Once paroled into the U.S., they will be eligible to apply for work authorization. The program does not provide a direct pathway to permanent residence.
  • The administration announced the creation of “Uniting for Ukraine” last week, saying it would supplement existing legal pathways for coming to the U.S., including immigrant and nonimmigrant visas and refugee processing.

Additional Information: The U.S. has taken a number of steps in response to the invasion of Ukraine, including designating Ukraine for Temporary Protected Status (TPS), suspending some employment authorization requirements for certain students from Ukraine and exempting some individuals traveling from Ukraine from COVID-19 vaccination and testing requirements. The State Department pledged additional resources last week, including resources to process Ukrainian citizens for refugee resettlement under the Lautenberg Program, expand mechanisms for referrals to the U.S. Refugee Admissions Program (USRAP), and broaden access to nonimmigrant visa processing at U.S. embassies and consulates in Europe. BAL will continue to follow the administration’s response to the crisis in Ukraine 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 Centers for Diseases Control and Prevention (CDC) has announced that certain travelers departing from Shanghai, China, are exempt from the pre-departure COVID-19 testing requirement.

 Key Points:

  • The following individuals are temporarily not required to have proof of a negative pre-departure COVID-19 test or previous recovery from COVID-19 to enter the U.S. when departing from Shanghai, China.
    • U.S. citizens.
    • U.S. nationals.
    • Lawful permanent residents (LPRs).
    • Noncitizens who have a valid U.S. immigrant visa.
    • Noncitizen nonimmigrants who are traveling with a U.S. citizen or LPR and possess valid travel documents allowing them to travel to the U.S.
  • The CDC has waived the COVID-19 testing requirement for such individuals through at least May 11.

Additional Information: The CDC said it implemented the exemption at the request of the U.S. State Department and after it determined “that the current exigent circumstances in Shanghai, China may preclude individuals from meeting the requirements of CDC’s amended Testing Order.” The U.S. State Department recently ordered the departure of nonemergency employees and their family members from the Consulate General Shanghai district. The U.S. has advised against travel to Shanghai at this time due to “COVID-19-related restrictions, including the risk of parents and children being separated.”

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. Immigration and Customs Enforcement (ICE) announced today that it would extend temporary Form I-9 flexibilities that were first implemented at the beginning of the COVID-19 pandemic.

Key Points:

  • ICE extended the temporary measures until Oct. 31, 2022. The guidance had been scheduled to expire April 30.
  • The guidance temporarily allows employers operating remotely due to COVID-19 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 inspection 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.
  • Employers should consult the original March 2020 ICE guidance along with today’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 when the extensions will be terminated and normal operations will resume.

Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in December. DHS has indicated it is working toward proposing a permanent optional alternative to physical examination for certain employers in the coming months. The agency is currently accepting comments on a revised Form I-9, in anticipation of the current form’s Oct. 31 expiration date. 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.

A rule that would temporarily increase the automatic extension period for employment authorization and documentation for certain renewal applicants has cleared White House Office of Management and Budget (OMB) review.

Key Points:

  • The text of the rule is not yet available. OMB review is the last step in the rulemaking process before U.S. Citizenship and Immigration Services (USCIS) can publish the rule in the Federal Register.
  • USCIS will post the text for public inspection at least a day before the rule is officially published.
  • The rule is classified as a “major rule.” Such rules generally require a 60-day implementation delay from the date of publication.

Background: The COVID-19 pandemic and related 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. This rule is part of a package of initiatives USCIS announced in March to address processing delays. The agency is also working to expand premium processing, hiring more staff and taking steps to improve case processing technology. More information is available here.

BAL Analysis: The temporary rule could help provide much-needed relief to employers and employees affected by USCIS processing delays. However, information about the scope and the effective date will not be available until the text of the rule is published. BAL 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) announced today that it would extend the COVID-19 vaccination requirement on non-U.S. travelers entering the U.S. through land ports of entry and ferry terminals.

Key Points:

  • DHS will continue to require travelers who are not U.S. citizens, nationals or lawful permanent residents entering the U.S. by land or ferry to be fully vaccinated against COVID-19.
  • With limited exceptions, individuals who have not been fully vaccinated against COVID-19 or do not have proof that they are fully vaccinated will not be able to travel by land or ferry from Canada or Mexico.
  • The policy will remain in place until further notice.
  • COVID-19 testing is not required to enter the U.S. through land ports of entry or ferry terminals.

Additional Information: The COVID-19 vaccination requirements have been in place for nonessential travelers since November 2021 and for essential travelers since January 2022. 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 © 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.