USCIS Issues Guidance on Employment Authorization Available to Certain Nonimmigrant Dependent Spouses (H-4s, L-2s, and E-2s)

Based on the recent settlement of the class action lawsuit Shergill v. Mayorkas, USCIS issued new policy guidance on November 12th, to be effective immediately, that provides automatic extensions of employment authorization for certain H-4, E, and L nonimmigrant dependent spouses. 

H-4 spouses may qualify for automatic extension of their existing employment authorization and accompanying EAD if they have properly filed an application to renew their H-4-based EAD before it expires, and they have an unexpired Form I-94 showing valid status as an H-4 nonimmigrant. If the applicant qualifies for automatic extension of their current employment authorization and EAD, the automatic extension will continue until whichever comes first:

• The end date on Form I-94 showing valid H-4 status;

• The approval or denial of the EAD renewal application; or

• 180 days from the “Card Expires” date on the face of the existing EAD.

When applicable, acceptable evidence of your automatic extension of employment authorization that may be presented to employers for Form I-9 purposes includes the following combination of documents:

• Form I-94 indicating the unexpired H-4 nonimmigrant status;

• Form I-797C indicating a timely-filed renewal Form I-765 was filed under (c)(26); and

• The expired EAD issued under the same category, Category C26.

E and L dependent spouses will have employment authorization incident to their status.  USCIS will be making changes to the I-94 for these visa holders to differentiate dependent spouses from dependent children so that the I-94 can be used to indicate employment authorization.  Once that change is made, the I-94 will be acceptable as evidence of employment authorization for I-9 purposes. Until then, E and L spouses will need to use EAD cards as evidence of their employment authorization. 

IDC News

We are pleased to announce that Matthew Stanonis will be joining our team as a paralegal this month. Matthew comes to our office with a range of experience in the government and private sector.

Visa Bulletin

Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one.  In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.

For November 2021, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485]. USCIS has also indicated that it will not accept any new employment-based fifth preference adjustment of status applications based on the Regional Center Program until that program is reauthorized.

In November, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in November.

The EB-2 and EB-3 preference category remains “current” for all countries other than China and India which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.

The EB-3 November filing chart for India and China retrogressed from the October visa bulletin but improved in the EB-2 category by approximately five months for both countries. The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).

Office of Refugee Resettlement Fact Sheet for Cubans/Haitians Granted Parole

The Office of Refugee Resettlement (ORR) released a fact sheet detailing benefits and services available to Cuban and Haitian nationals who were granted parole into the United States, who are in removal proceedings, or who have a pending asylum application. Cuban/Haitian nationals may be eligible for cash and medical assistance, employment services, English language classes and other federal benefits such as Supplemental Security Income (SSI), food assistance, and Medicaid health insurance. The U.S. Department of Health and Human Services has published a list of documents qualifying someone as a Cuban/Haitian Entrant for the purpose of receiving benefits/services.

The ORR provides funding to state governments, resettlement agencies, and other non-profit organizations for eligible individuals. Please locate your state contact to sign up for ORR benefits/services or inquire on your eligibility for additional services.

USCIS Implements Employment Authorization for Individuals Covered by Deferred Enforced Departure for Hong Kong Residents

On October 20, 2021, U.S. Citizenship and Immigration Services (USCIS) issued a Federal Register notice with information on how to apply for employment authorization for eligible Hong Kong residents covered under the President Biden’s  memorandum directing Deferred Enforced Departure (DED) through February 5, 2023.

DED for Hong Kong residents applies only to residents of Hong Kong who were a) present in the United States as of August 5, 2021; b) who have continuously resided here since that date; and c) who meet other eligibility criteria described in the president’s memorandum. For purposes of this DED policy, Hong Kong residents are individuals of any nationality, or without nationality, who have met the requirements and been issued a Hong Kong Special Administrative Region (HKSAR) passport, a British National Overseas passport, a British Overseas Citizen passport, a Hong Kong Permanent Identity Card, or an HKSAR Document of Identity for Visa Purposes.

There is no application for DED. Eligible Hong Kong residents may apply for an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization. Eligible Hong Kong residents covered by the president’s DED memorandum may also receive travel authorization. Individuals must file Form I-131, Application for Travel Document, for advance parole if they wish to travel based on DED.

SEVP Guidance on Use of Electronic Signatures and Transmissions for Form I-20

On November 1, 2021, the Student and Exchange Visitor Program (SEVP) published policy guidance outlining the new procedure for the use of electronic signatures and transmission of the Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.”

This guidance permits designated school officials to electronically sign and transmit the Form I-20 to initial and continuing international students and their dependents, using software programs or applications or by using electronically reproduced copies of a signature. Additionally, school officials may scan and email or electronically transmit the Form I-20 via a secure platform, such as a school portal or other secure site, to F and M students and their dependents. Designated School Officials may also choose to still sign and mail a physical Form I-20 to students.

 This new SEVP policy only applies to Form I-20. Other SEVP-issued forms are not included.

DHS Issues New "Protected Area" Immigration Enforcement Guidelines that includes Colleges, Universities, and Healthcare Facilities

Secretary of Homeland Security Alejandro N. Mayorkas today issued a new, comprehensive policy to guide Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) enforcement actions in or near protected areas, replacing previous sensitive locations guidance. The first-ever policy for both ICE and CBP provides an expanded and non-exhaustive list of protected areas, including new designations such as places where children gather, disaster or emergency relief sites, and social services establishments.

The new policy, which is effective immediately, supersedes and rescinds all previous sensitive locations guidance and establishes that enforcement actions should not be taken in or near a location that would restrain people’s access to essential services or engagement in essential activities. DHS officers and agents will use their judgment to determine whether a location is a “protected area” taking into consideration the activities that take place there, the importance of those activities to the well-being of people and the communities of which they are a part, and the impact an enforcement action would have on people’s willingness to be in the protected area and receive or engage in the essential services or activities that are offered there.

Some examples of protected areas include, but are not limited to:

• Schools, such as known and licensed daycares, pre-schools, and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events

• Medical treatment and healthcare facilities, including COVID-19 vaccination locations

• Places of worship or religious study, such as churches, synagogues, mosques, and temples

• Places where children gather such as a playground, recreation center, childcare center, before- or after-school care center, foster care facility, group home for children, or school bus stop

• Social services establishments such as a crisis center, domestic violence shelter, victims services center, child advocacy center, supervised visitation center, family justice center, community-based organization, facility that serves disabled persons, homeless shelter, drug or alcohol counseling and treatment facility, or food bank or pantry or other establishment distributing food or other essentials of life to people in need

• Disaster or emergency response and relief centers

• Religious or civil ceremonies or observances, such as funerals and weddings

• Public demonstrations, such as parades, demonstrations, or rallies

DHS Seeking Public Input on Remote Document Examination Practices Associated with the Form I-9, Employment Eligibility Verification, during the COVID-19 Pandemic

The Department of Homeland Security (DHS) is exploring alternative options to physical document examination that offer an equivalent or higher level of security for identity and employment eligibility verification purposes. In order to gather public input, DHS published a 60-day Request for Public Input in the Federal Register regarding document examination practices when completing Form I-9, Employment Eligibility Verification.

DHS is requesting input to better understand the experiences of employers and employees with this process and to examine the impacts of remote document examination during the COVID-19 pandemic. DHS is evaluating the potential costs and benefits of allowing remote document examination flexibilities to continue in the future. 

Public comments can be submitted at Regulations.gov until December 27, 2021.

U.S. Employers Settle Lawsuit Challenging USCIS’ Unlawful Denial of H-1B Petitions

The parties in the class action lawsuit MadKudu Inc., et al. v. USCIS, et al., reached a settlement agreement that corrects the agency’s misinterpretation of the Occupational Outlook Handbook—a Department of Labor’s Bureau of Labor Statistics publication profiling hundreds of occupations in the U.S. job market. Based on its prior interpretation of the OOH, USCIS erroneously determined that market research analysts did not qualify as a “specialty occupation.” The settlement agreement changes this agency error and provides U.S. employers who qualify the opportunity to request that USCIS reopen and re-adjudicate their denied H-1B petitions.

To be a class member, a U.S. employer must have filed a market research analyst H-1B petition during the time from January 1, 2019, through October 19, 2021. USCIS must have then denied the petition based on a finding that the OOH entry—as it existed on October 19— failed to establish that market research analyst is a “specialty occupation,” and, but for USCIS’ finding regarding the OOH entry, the H-1B petition would have been approved.

A copy of the settlement agreement is on the American Immigration Council website.

AILA Submits Comments to USCIS on New Proposed Form I-129H-1

On October 18, 2021, the American Immigration Lawyers Association (AILA) submitted comments to U.S. Citizenship and Immigration Services on the new proposed Form I-129H1. This new form is a part of USCIS’ effort to create separate forms for each visa classification incorporated in the current Form I-129, Petition for a Nonimmigrant Worker. AILA’s comments address the following concerns generated by the new Form I-129, namely that the information USCIS intends to collect is immaterial and lacking in practical utility and creates an undue burden for employers.

The changes imposed in the new Form I-129H1 includes requesting E-Verify information for all petitioners, requesting USCIS online account numbers for both the petitioner and beneficiary, and requesting information about the level of education, experience, special skills, and supervision required for the position. The proposed changes to Form I-129 and a draft of the new form can be found on the Federal Register website.