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.

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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.

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.