Customs and Border Protection (CBP) Notifies of New Temporary Travel Restrictions at Canadian and Mexican Borders

CBP published a notice in the Federal Register announcing the decision of the Secretary of Homeland Security (“Secretary”) to temporarily restrict travel by certain noncitizens into the United States at land ports of entry, including ferry terminals (“land POEs”) along the United States-Mexico border. “These restrictions only apply to noncitizens who are neither U.S. nationals nor lawful permanent residents (“noncitizen non-LPRs”). Under the temporary restrictions, DHS will allow processing for entry into the United States of only those noncitizen non-LPRs who are fully vaccinated against COVID-19 and can provide proof of being fully vaccinated against COVID-19 upon request. The restrictions provide for limited exceptions, largely consistent with the limited exceptions currently available with respect to COVID-19 vaccination in the international air travel context. Unlike past actions of this type, this Notification does not contain an exception for essential travel.”

Supreme Court Weighing Indefinite Detention of Unauthorized Immigrants in Two Seminal Cases

The Supreme Court heard arguments for two cases on January 11, 2022 over whether immigrants detained for long periods while they are contesting deportation are entitled to hearings to decide whether they may be released on bond as their cases move forward. The court’s answer to the question will affect hundreds of thousands of immigrants who are being indefinitely detained while their cases are decided by immigration courts that face historic backlogs with years-long waiting periods. The plaintiffs in the two cases coming before the Court argue that immigrants held in detention for longer than six months are entitled to a bond hearing in which a judge determines whether they should continue to be detained. However, the Biden Administration disagrees, with a lawyer for the federal government stating that “Congress can make rules for noncitizens that it can’t for citizens and that detention during removal proceedings is constitutionally permissible.” Furthermore, the Justice Department (DOJ) argues the immigration statute in question does not entitle immigrants to a hearing and that the lower courts do not have the authority to grant class-wide relief. The Court’s decision on these two cases will be forthcoming this year.

U.S. Immigration Courts Face an Unprecedented Backlog of 1.5 Million Cases

U.S. immigration courts have reached an unprecedented backlog of more than 1.5 million cases, the largest ever in the court’s four-decade history. The state of Texas has the largest backlog of more than 250,000 cases. The Commonwealth of Massachusetts has the sixth highest backlog with more than 80,000 pending cases. Secretary Alejandro N. Mayorkas of the Department of Homeland Security (DHS) stated in September 2021 that DHS would be adopting new guidelines to better focus the Department’s resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security. However, fewer than 1% of new cases brought by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) beginning in October 2021 involved alleged criminal activity. The COVID-19 pandemic is also a factor in the ever-growing case list, in addition to a 2,000% increase in asylum applications and a shortage of immigration judges. In 2019, the median caseload for an immigration judge was 3,000 cases.

U.S. Citizenship and Immigration Services (USCIS) Updates Guidance on National Interest Waivers

On January 21, 2022, USCIS announced updated guidance on adjudicating requests for National Interest Waiver applications regarding job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. This includes considering the unique factors for persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs. In accordance with the Biden Administration’s goal of removing barriers to legal immigration, USCIS is clarifying how the National Interest Waiver can be used by STEM graduates and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. The updated guidance also serves to promote effective and efficient processing of benefits consistent with President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.

The updated USCIS guidance on STEM fields states, in part: “USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security… [it] considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence.”

U.S. Citizen and Immigration Services (USCIS) Updates Guidance on Expedite Requests for Pending Applications

USCIS updated its Policy Manual on January 25, 2022, to reflect new guidance on how it determines whether a case is eligible for expedited treatment. This update clarifies the criteria and circumstances under which USCIS generally considers expedite requests from nonprofit organizations as determined by the Internal Revenue Service; provides additional examples of when it may consider expedite requests made by federal, state, or local agencies, including labor and employment agencies; adds examples to further illustrate how the expedite criteria relates to emergencies and urgent humanitarian reasons; and explains that some circumstances may affect or delay its ability to expedite an application or petition.

Some notable examples include:

• Severe Financial Loss as a Basis for Expedited Treatment: A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or required to lay off other employees. Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.

• Nonprofit Organization Seeking Expedited Treatment: A nonprofit organization seeking to expedite a beneficiary’s benefit request must demonstrate an urgent need to expedite the case based on the beneficiary’s specific role within the nonprofit in furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests).

A case that meets one of the scenarios listed by USCIS may still be denied expedited treatment for various reasons. USCIS does not provide justification or otherwise respond regarding decisions on expedite requests.

FY2023 H-1B Cap Registration Period Opens on March 1st!

U.S. Citizenship and Immigration Services (USCIS) announced on January 28, 2022, that the initial registration period for the fiscal year 2023 H-1B cap lottery will open at 12pm EST on March 1, 2022 and run through 12pm EST on March 18, 2022. During this period, employers and representatives will be able to complete and submit their registrations using the USCIS online H-1B registration system. Prospective H-1B cap-subject employers or representatives must create a myUSCIS online account to register each beneficiary electronically for the selection process. There is a $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. It is critical that no errors are made in the registration process as doing so could cancel the H-1B registration in the lottery. USCIS will notify employers or representatives if the beneficiary was selected by March 31, 2022. The USCIS filing window for H-1B cap petitions is April 1, 2022, through June 30, 2022.

If you require assistance in preparing an H-1B cap registration and/or would like to discuss the H-1B visa process for an employee, please contact Iandoli, Desai & Cronin (info@iandoli.com).

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.

Employment-Based Immigration:

For January 2022, 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 January, 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 January.

The EB-2 and EB-3 preference categories remain “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.

Family-Based Immigration:

In the F2A category, there is a cutoff date on the “Dates for Filing” chart. However, the category is “current” on the “Final Action Dates” chart. This means that applicants in the F2A category may file using the “Final Action Date” chart. All other family-sponsored preference categories must use the “Dates for Filing” chart.

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).

H-1B Planning Season is Upon Us with a New Process and New Deadlines

H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.

USCIS has not announced any changes to the new e-registration tool this upcoming H-1B cap season. As such, employers seeking to file H-1B cap-subject petitions for the new fiscal year cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period at the beginning of March 2022. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Given this advanced timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions. 

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.

Regulation that Increased Prevailing Wages Rescinded by Department of Labor

The Department of Labor (DOL) published a final rule on December 14, 2021, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” rescinding a previously DOL regulation that had been implemented in January 2021. The January 2021 regulation would have led to a dramatic increase in prevailing wages for H-1B, H-1B1, and E-3 petitions, as well as PERM Labor Certification applications. Had this previous DOL regulation been allowed to stand it would have made it much harder for employers to sponsor workers for these types of visas and benefits, so it is very welcome news that it has been rescinded.

Link: https://www.federalregister.gov/documents/2021/01/14/2021-00218/strengthening-wage-protections-for-the-temporary-and-permanent-employment-of-certain-aliens-in-the

DHS Withdraws H-1B Wage-Based Selection Rule

The Department of Homeland Security published a final rule withdrawing the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B petitions final rule, also known as the “H-1B Selection Final Rule”, which was issued January 8, 2021. This rule was published at 86 FR 1676 (1/8/21) and was to become effective on 12/31/21. The rule would have changed the way that USCIS selects H-1B registrations submitted by prospective employers seeking to file an H-1B cap-subject petition by ranking and selecting registrations based on wage levels.

Link: https://www.uscis.gov/newsroom/alerts/dhs-withdraws-h-1b-selection-final-rule