Immigration Law Update

May 2022

H-1B Quota Process Update

USCIS conducted its H-1B electronic registration process from March 1-18 and announced completion of the initial selection process on March 29. Now that the drawing has been done those selected must complete their H-1B petitions by June 30.

This year USCIS received more than 483,000 H-1B registration, and the government selected 127,600 applicants in the March drawing. This reflects a success rate of 31% for applicants with a U.S. Master’s degree. The number of registrations increased by more than 56% over last year due to the strong demand for H-1B workers. Also, notably the number of selections in this initial drawing increased by more than 45% from 87,500 to 127,600 even though the statutory quota numbers have not changed. With this being the case, we anticipate that if there are any additional drawings conducted this fiscal year, a much smaller number of people will be selected than in previous years.

USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders

USCIS announced a trio of efforts to increase efficiency and reduce burdens to the overall legal immigration system. USCIS will set new agency-wide backlog reduction goals, expand premium processing to additional form types, and work to improve timely access to employment authorization documents.

USCIS will publish a Temporary Final Rule (TFR) on May 4 that extends the employment authorization for certain EAD applicants who timely filed to renew their EADs, but have EADs in their possession that have since expired. Under the prior policy these EADs were valid for an additional 180 days while the extension applications were pending. The new policy will extend the validity of these EADs for as long as 540 days while the renewal applications are pending. This temporary rule is valid until October 27, 2023. It notably applies to applicants for Adjustment of Status among other designated groups.
To reduce the agency’s pending caseload, USCIS is establishing new internal cycle time goals. These goals are internal metrics that guide the agency’s backlog reduction efforts. The hope is that as cycle times improve, processing times will be reduced, and applicants and petitioners will receive decisions on their cases more quickly and communications will be more effective. The agency plans to increase capacity, improve technology, and expand staffing to achieve these new goals by the end of FY 2023.
This final rule expands the categories of forms that will ultimately be eligible for premium processing services, including Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; and additional classifications under Form I-140. USCIS intends to begin implementing, through a phased approach, premium processing availability of Form I-539, Form I-765 and Form I-140 in fiscal year 2022. USCIS will also adhere to the Congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefit requests. This phased implementation process will begin by expanding premium processing eligibility to Form I-140 filers requesting EB-1 immigrant classification as a multinational executive or manager, or EB-2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver.

Documentation of Employment Authorization for E and L Dependent Spouses

Over the past few months USCIS has taken several steps to ensure that E and L dependent spouses can expeditiously work in the United States without having to apply for an EAD and wait months. Three key changes were made in this respect in March:

Forms I-94 for dependent spouses in E and L status now are marked with a code to indicate that they are authorized to work — E-1S, E-2S, E-3S, and L-2S, as applicable. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses.
Dependent spouses issued Forms I-94 before January 30, 2022 notated with E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status are to receive a notice from USCIS regarding the new COA codes that, together with the unexpired Form I-94, will serve as evidence of employment authorization.
Adds E and L spouses to the list of those employment-authorized incident to status.

Ukraine, Afghanistan, Cameroon, Sudan and South Sudan Designated for Temporary Protected Status

Recently, foreign nationals from all five countries currently residing in the United States were granted/extended Temporary Protected Status (“TPS”) for 18 months. TPS grants beneficiaries’ protection from removal from the United States, allows them to obtain an employment authorization document (“EAD”), and may allow them to be granted travel authorization. See below validity dates of TPS for each

Ukraine: Designation valid from April 19, 2022, through October 18, 2023, for foreign nationals from Ukraine continuously residing in the U.S. since April 11, 2022.
Afghanistan: Designation valid from March 16, 2022, through September 15, 2023, for foreign nationals from Afghanistan continuously residing in the U.S. since March 15, 2022.
Cameroon: Designation valid from April 15, 2022, through October 14, 2023, for foreign nationals from Cameroon continuously residing in the U.S. since April 14, 2022.
Sudan: Designation valid from April 19, 2022, through October 19, 2023, for foreign nationals from Sudan continuously residing in the U.S. since March 1, 2022.
South Sudan: Designation extended, valid from March 3, 2022, through November 3, 2023, for foreign nationals from South Sudan continuously residing in the U.S. since March 1, 2022 or prior to this date.

To obtain the benefits of TPS status, qualifying applicants will need to file Applications for Temporary Protected Status with USCIS by the date indicated. For assistance in this regard, please feel free to contact us.

Ukraine: “Uniting for Ukraine”, New Rules in Effect for Ukrainians Trying to Enter United States

On March 25, 2022, President Biden made a commitment to welcome up to 100,000 Ukrainians and others fleeing the war launched by Russia. On April 21, 2022, the government announced specific policies to facilitate this effort as part of the “Uniting for Ukraine” program. “Uniting for Ukraine” is a streamlined process for Ukrainian citizens who have been displaced by Russia’s aggression to apply for humanitarian parole in the United States. To be eligible, Ukrainians must have been residents in Ukraine as of February 11, 2022, have a sponsor in the United States, complete vaccinations and other public health requirements, and pass rigorous biometric and biographic screening and security checks. Ukrainians approved via this process will be authorized to travel to the United States and be considered for parole, on a case-by-case basis, for a period of up to two years. Once paroled through this process, Ukrainians will be eligible for work authorization. In addition, the State Department announced increased refugee resettlement processing and broadened access to visa processing at consular posts overseas.

The new policy is meant to cut down on the number of Ukrainian migrants seeking humanitarian visas along the border through the implementation of a new streamlined process for displaced Ukrainian citizens and their families to apply for parole and stay temporarily in the United States for up to two years. See this page for information from DHS on the “Uniting for Ukraine” program.

Title 42 Set to Expire May 23, 2022

The Centers for Disease Control and Prevention announced earlier this month that Title 42 would expire on May 23. Title 42 comes from a federal law that dates back to 1944 meant to help prevent the spread of communicable disease. It is what essentially gave authority to the Centers for Disease Control and Prevention to take emergency action in March 2020, allowing immigration authorities to quickly expel migrants and denying entry to asylum seekers. Since it was first invoked in the Trump administration, CBP has expelled more than 1.7 million migrants at the border.

There is some political resistance to the expiration of this provision, particularly but not exclusively from the Republican Party. A COVID-19 aid package was held up in early April when Republicans attempted to extend the order. Congress left for Easter recess before sorting it out, and the aid package did not pass. Lawmakers return this week and many are expected to resume their focus on trying to keep it in place. Plus, there’s a bipartisan bill that was introduced earlier this month that would push back the expiration of Title 42.

EB-5 Regional Center Program Extended Until September 2027.

After sitting dormant for nearly a year, the EB-5 program has been re-authorized by Congress through September 2027. The “EB-5 Reform and Integrity Act of 2022’ (“RIA”) updates and reforms the program in many respects including the following:

Reauthorizes and extends the RC Program to September 30, 2027.
Increases the minimum investment amount for Targeted Employment Areas (“TEAs”) from $500,000 to $800,000.
Increases the standard (non-TEA) minimum investment amount from $1 million to $1,050,000.
Authorizes Concurrent I-485 Adjustment of Status filings for pending and approved I-526 Petitions as well providing 245(k) protections.
Creates new visa set asides for certain types of projects (rural / high unemployment / infrastructure).
Establishes new reporting and disclosure requirements by RCs to both USCIS and sponsored investors.
Requires promoters and overseas agents to register with USCIS and report fees collected from RCs and sponsored investors.
Requires RCs pay an annual “EB-5 Integrity Fund” fee to be used by USCIS to fund investigations and site visits of regional center operators, new commercial enterprises (NCEs) and job creating entities (JCEs).

Most of these changes are effective May 14, 2022. We will continue to monitor the implementation of these large-scale changes and any attendant issues.

DHS Extends Flexibility in Requirements Related to Form I-9 Compliance

On April 25, ICE announced an extension until October 31, 2022, of flexibility in rules related to Form I-9 compliance during the COVID-19 pandemic. The extension will continue to apply to employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. However, if the employer has brought people back into the office, the previous rules will continue to apply: namely – the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis.

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If you have questions or would like to learn more about these or other immigration topics, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

_{This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.}