Department of Homeland Security (DHS) Updates STEM Designated Degree Program List to Include 22 New CIP Codes
On January 21, 2022, the Secretary of Homeland Security published a notice in the Federal Register that amended the DHS STEM Designated Degree Program by adding twenty-two (22) qualifying fields of study and corresponding Classification of Instructional Programs (CIP) codes. This list is used to determine which fields of study in science, technology, engineering, and mathematics qualify as STEM degrees for students on F-1 visas, thereby allowing them to take advantage of an additional 24 months of post-graduate employment authorization reserved for students with designated STEM degrees.
Notable additions to the STEM designated degree program include Data Science, General; Data Analytics, General; Financial Analytics; and Business Analytics. Please refer to the Federal Register for a complete list of the added CIP codes and field descriptions.
U.S. Citizenship and Immigration Services (USCIS) Updates Guidance on O-1B Petitions for Extraordinary Ability in the Arts or Achievement in Motion Pictures and Television
On January 13, 2022, USCIS announced clarifying guidance on how it determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry (MPTV) when a case has elements of both. This updated guidance is in the USCIS Policy Manual and clarifies that USCIS applies the eligibility requirements for O-1B (MPTV) if the beneficiary will perform services for motion picture or television productions while in the United States. It also provides examples as to which new forms of media, including various types of online content, USCIS may consider to properly fall within the O-1B (MPTV) subcategory.
The updated guidance states, in part: “USCIS interprets the eligibility requirements for O-1B (MPTV) to apply if the beneficiary will perform services for motion picture or television productions while in the United States regardless of other prospective services outside the MPTV industry...For a beneficiary with a record of extraordinary achievement in motion picture or television (MPTV) productions, USCIS interprets the beneficiary’s “area of extraordinary achievement” to include any proposed work within the MPTV industry.”
Please contact Iandoli, Desai & Cronin if you have questions about an existing O-1B case or are interested in evaluating your options for an O-1B visa (info@iandoli.com).
U.S. Citizenship and Immigration Services (USCIS) Updates Policy Guidance on O-1A Petitions with a Focus on STEM Fields
On January 21, 2022, USCIS updated its guidance to clarify how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability in sciences, education, business, or athletics. This update provides additional guidance regarding the evaluation of evidence submitted in support of O-1A petitions for beneficiaries in sciences, education, business, or athletics, including examples and considerations that may be especially relevant for persons in STEM fields. In addition, this update provides guidance regarding the requirement that all O-1 beneficiaries are coming to the United States to continue work in their area of extraordinary ability or achievement, particularly how that requirement relates to beneficiaries transitioning to a new occupation.
This policy adds a chart in an appendix describing examples of evidence that may satisfy the O-1A evidentiary criteria, as well as considerations that are relevant to evaluating such evidence with a focus on evidence and considerations that are relevant to STEM fields. USCIS also provides examples of qualifying comparable evidence that petitioners could provide in support of a petition for a beneficiary in a STEM field.
This policy guidance is effective immediately. It is worth noting that this update does not change the criteria for the O-1A visa, but rather how a USCIS officer may consider the evidence submitted when adjudicating an O-1A petition.
Please contact Iandoli, Desai & Cronin if you have questions about an existing O-1A case or are interested in evaluating your options for an O-1A visa (info@iandoli.com).
Department of State (DOS) Announces F/M/J Processing Posts for Applicants in Russia
Due to the Russian government’s April 23, 2021 notification prohibiting the U.S. Embassy Russia from employing foreign nationals in any capacity, the U.S. Embassies in Russia have not been offering non-diplomatic visa services. This has effected both non-immigrant and immigrant visa processing.
The Department of State announced on January 21, 2022 that it has designated multiple posts for processing certain nonimmigrant visa applications from persons residing in Russia due to the severely limited consular operations. Under this designation, Russia-based student visa applicants (F and M categories) as well as academic exchange visitors (student, professor, research scholar, short-term scholar, and specialist J visa categories) and participants in U.S. government-funded exchange visitor programs may apply at the following posts: Mission Kazakhstan and U.S. embassies Belgrade and Yerevan. Applicants are encouraged to check each post’s website for the latest information on services and appointment availability at that specific post.
This designation does not prevent Russia-based F, M, and J applicants or any other non-immigrant visa applicant from applying at another post where they are physically present.
Due to the suspension of immigrant visa services in Moscow, the U.S. Department of State has designated the U.S. Embassy in Warsaw to process immigrant visas for residents of Russia.
These designations do not exempt travelers from the Centers for Disease Control’s (CDC) requirement that all air travelers to the United States be vaccinated against COVID-19 with a WHO emergency use listed vaccine.
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).