Omicron Travel Bans on Southern Africa Lifted on 12/31/21
President Biden revoked Presidential Proclamation 10315 as of December 31, 2021, rescinding the travel restrictions previously imposed on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.
DHS Extends Flexibility in Requirements Related to Form I-9 Compliance until April 30, 2022
ICE has extended the flexibility in rules related to Form I-9 compliance during the COVID-19 pandemic until April 30, 2022. This 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.
Link: https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3
USCIS Extends Flexibility for Responding to Agency Requests until March 26, 2022
On December 30, 2021, USCIS extended the flexibilities it announced on March 30, 2022, to allow applicants, petitioners, and requestors responding to certain agency requests through March 26, 2022. This means that USCIS will consider a response received within 60 calendar days after the due date set forth in the requests or notices before taking any action, as long as the request or notice was issued anytime between March 1, 2020, and March 26, 2022. This applies to:
Requests For Evidence;
Continuation to Request Evidence (N-14);
Notice of Intent to Deny;
Notice of Intent to Revoke;
Notice of Intent to Rescind;
Notice of Intent to Terminate Regional centers; and
Motion to Reopen an N-400 Pursuant to 8 CFR 333.5, Receipt of Derogatory Information After Grant.
USCIS will also consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, if the form was filed up to 90 calendar days from the issuance of a decision the service made; and that decision was made between November 1, 2021, and March 26, 2022. Please note that this is longer than the previously announced flexibility of 60 calendar days in these circumstances.
Link: https://www.uscis.gov/about-us/uscis-response-to-covid-19 (“Deadlines for Certain Requests, Notices, and Appeals”)
New USCIS Policy Authorizes Expedited Processing of Employment Authorization Documents (EADs) for Healthcare Workers
USCIS announced that healthcare workers with pending Employment Authorization Document (EAD) renewal applications whose EADs will expire in 30 days or less (or has already expired), can request expedited processing of their EAD application.
Link: https://www.cisa.gov/sites/default/files/publications/essential_critical_infrastructure_workforce-guidance_v4.1_508.pdf (“Healthcare/Public Health section, pages 7-9)
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 December 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 December, 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 December.
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 December filing chart for India and China did not change the November Visa Bulletin but improved in the EB-2 category by a few 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).
USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations
On November 19, 2021, USCIS announced that it had conducted a third random selection of previously submitted FY2022 H-1B Cap registrations in order to meet the numerical allocations for this fiscal year. The filing period for the selected registrations began on November 22, 2021 and will close on February 23, 2022. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.
The initial selection of registrations for this fiscal year took place in March 2021, and those selected were able to file between April 1, 2021 through June 30, 2021. The second selection took place in July 2021, and those selected were able to file through November 3, 2021.
An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
If you or your employee was selected in the lottery and you require assistance preparing the H-1B petition, please contact an at Iandoli, Desai & Cronin (info@iandoli.com).
SEVP Issues Reminder for School Officials to Assist F-1 Students with Filing Form I-765
On November 15, 2021, the Student and Exchange Visitor Program (SEVP) and U.S. Citizenship and Immigration Services (USCIS) issued a reminder that designated school officials (DSOs) are to ensure that F-1 students file their Forms I-765, "Application for Employment Authorization," for optional practical training (OPT) within the 30-day period after the DSO:
Authorizes the student for OPT in the Student and Exchange Visitor Information System (SEVIS), and
Provides the student with an updated Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status," endorsed for OPT.
SEVP and USCIS also note that DSOs must complete these two steps above before the student files the Form I- 765. DSOs should ensure that students who apply for OPT are aware of these requirements and file their Forms I-765 along with all required documentation within the specified 30-day period. Additional information and resources to assist students with filing for OPT are available on the Optional Practical Training for F-1 Students page at USCIS.gov.
Employment Authorization for F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of Emergent Circumstances in Hong Kong
On November 24th, 2021, the Department of Homeland Security released a Federal Register Notice suspending certain requirements for F-1 students who are Hong Kong residents and are experiencing severe economic hardship as a result of current circumstances in Hong Kong. Specifically, the notice provides Special Student Relief (SSR) and suspends on-campus and off-campus employment regulations for certain Hong Kong residents.
This notice announces that the Secretary of Homeland Security (Secretary) is suspending certain regulatory requirements for F-1 nonimmigrant students who are Hong Kong residents (regardless of country of birth) and who are experiencing severe economic hardship as a direct result of the emergent circumstances in Hong Kong. The Secretary is taking action to provide relief to Hong Kong residents who are lawful F-1 nonimmigrant students so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain F-1 nonimmigrant student status. DHS will deem an F-1 nonimmigrant student who receives employment authorization by means of this notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.
The notice defines a Hong Kong resident as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region (HKSAR) Document of Identity for Visa Purposes.
DOS Reopens Public Charge Interim Final Rule Comment Period
On November 17, 2021, the U.S. State Department posted a notice soliciting additional information from the public about the interim final rule (“IFR”) regarding visa ineligibility on public charge grounds originally published on October 11, 2019. The State Department has requested additional information by reopening the public comment period for an additional 60 days (ending on January 18, 2022). The public may comment on the IFR through the following:
To provide comments go to https://www.regulations.gov, enter Docket DOS-2021-0034 and RIN 1400-AE87. Alternatively, you may submit comments by any of the following methods:
Email: You may submit comments via email to VisaRegs@state.gov. You must include the RIN in the subject line of your message.
Mail paper submissions: You may submit comments via physical mail to Regulatory Coordinator, Visa Services, Bureau of Consular Affairs, Department of State, 600 19th St. NW, Washington, DC 20006. You must include the RIN in the Attention Line in the address.
The State Department invites public comment on this issue to aid in the Department’s review of (1) if the IFR should be rescinded or revised, and (2) what final rule should be adopted, if any. Reopening the comment period gives interested persons an opportunity to comment on these issues.
USCIS issues Policy Memo regarding eligibility for modification of oath of allegiance for Naturalizations
On November 19, 2021, USCIS announced an update to policy guidance in the USCIS Policy Manual to clarify guidance related to requests for modifications to the Oath of Allegiance.
During the naturalization interview, an applicant signs the naturalization application to acknowledge the applicant’s willingness and ability to take the Oath of Allegiance. An applicant may be eligible for a modification of the oath based on religious, moral, or ethical beliefs. Qualification for the modification is not dependent upon membership in a particular religious group, nor does membership in a specific religious group provide an automatic modification to the oath. However, the applicant must have a sincere and meaningful belief that has a place in the applicant’s life that is equivalent to that of a religious belief. An officer must not question the validity of what an applicant believes or the existence or truth of the concepts in which the applicant believes.
This policy guidance is intended to clarify the following:
Officers should not conclude that an applicant is ineligible for the oath modification if the applicant fails to provide oral testimony or other evidence at the interview.
If a naturalization applicant expresses a desire for a modification of the Oath of Allegiance during the naturalization interview but does not provide any oral testimony or other evidence to qualify for such modification, the officer should issue a Request for Evidence to provide the applicant an opportunity to provide testimony, a statement, or submit evidence to establish eligibility for such modification.
This update is in Volume 12 of the Policy Manual and is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any prior guidance on the topic.