U.S. Department of Homeland Security to End COVID-19 Policy of Acceptance of Expired List B Documents for I-9 on May 1, 2022
The U.S. Department of Homeland Security (DHS) is ending the COVID-19 Temporary Policy for List B Identity Documents that allowed employers to accept expired List B documents. DHS adopted this temporary policy in response to the difficulties many people experienced with renewing documents during the COVID-19 pandemic. Now that document-issuing authorities have reopened and/or provided alternatives to in-person renewals, DHS will end this flexibility. Starting May 1, 2022, employers must only accept unexpired List B documents. Please also note that if an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022.
Links:
USCIS Completes Initial Registration Selection Process to Meet Fiscal Year 2023 H-1B Cap
U.S. Citizenship and Immigration Services (USCIS) announced on March 29, 2022, that it had received enough electronic registrations during the initial H-1B registration period to reach the fiscal year (FY) 2023 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap). USCIS randomly selected from among the registrations properly submitted to reach the cap. All prospective petitioners with selected registrations have been notified that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration.
Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered):
Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
Selected: Selected to file an H-1B cap petition.
Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
Invalidated-Failed Payment: A registration was submitted but the payment method was declined, rejected, disputed, or cancelled after submission.
Link:
USCIS H-1B Initial Selection Update: https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-season-updates
USCIS H-1B Electronic Registration Process Page: https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process
Announcement of Local Filing of Form I-130 Petitions as Option for U.S. Citizens to begin process of Sponsoring Immediate Relatives from Afghanistan, Ethiopia and Ukraine who are Fleeing Conflict
The US Department of State has announced that a U.S. citizen who is physically present overseas with their Afghan, Ethiopian or Ukrainian immediate family members and have not yet filed an immigrant visa petition with US Citizenship and Immigration Services (USCIS), may request to locally file a Form I-130 petition at the nearest US embassy or consulate that processes immigrant visas. Such citizens must be physically present in the country where they wish to file petitions. They can request to locally file on behalf of their spouses, unmarried children under the age of 21, and parents who fled Afghanistan after August 2, 2021; Ethiopia after November 1, 2020; or Ukraine after February 1, 2022.
To request local filing of an I-130, U.S. citizen petitioners can email the nearest U.S. embassy or consulate’s Immigrant Visa Unit. You can find those email addresses at each individual embassy or consulate website. If a U.S. citizen petitioner has already filed a Form I-130 with USCIS for their immediate relative and it has not been approved yet, these petitioners may submit expedite requests with USCIS.
Links:
List of U.S. embassies and consulates: https://usembassy.gov
USCIS Information regarding expedite requests: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request
Electronic I-94 Issuance at Land Ports of Entry to Become Predominant
On March 18, 2022, U.S. Customs and Border Protection (CBP) issued a general notice that it will now be issuing electronic I-94s in lieu of paper I-94s at land ports of entry except in limited circumstances.
Links:
U.S. Customs and Border Protection notice: https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05758.pdf
U.S. Department of State to Hold Passport Application (“Acceptance”) Fairs
On March 9, 2022, the U.S. Department of State (DOS) announced that it will hold special passport application fairs across the country in March and April. To see the locations of the fairs, please check the DOS announcement link below as locations are regularly being added.
The majority of these fairs are meant for first-time passport applicants and children using Form DS-11 to apply. DOS encourages those eligible for renewal to file applications by mail.
DOS has indicated that for those applying for a passport via regular non-expedited service can expect to receive a passport in 8 to 11 weeks. If a person requires expedited processing, they can pay an additional $60 fee and should expect to receive a passport in 5 to 7 weeks. Please note that DOS has said that the passport fair locations do not offer appointments for urgent travel in less than 5 weeks.
Links:
U.S. Department of State Announcement: https://travel.state.gov/content/travel/en/News/passports/special-passport-acceptance-fairs.html
VISA BULLETIN
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether 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 April 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 on March 15, 2022, President Biden signed a law that includes authority for an EB-5 Immigrant Investor Regional Center Program and various implementation effective dates for the program. The program will be in effect through September 30, 2027. USCIS will review the new legislation and additional guidance is forthcoming.
In April, 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 April.
The EB-2 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 preference category is also “current” for all countries other than China and India, which remain backlogged on both the Final Action and Dates for Filing Charts.
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).
Massachusetts House of Representatives Passes Bill to Allow Driver's Licenses for Undocumented Immigrants
On February 16, 2022, the Massachusetts House of Representatives passes a bill that would allow undocumented immigrants to apply for driver’s licenses. The bill passed in the house by a 120-36 vote, and still requires approval by the State Senate, before being sent to the governor for signature.
The bill requires individuals provide documentation license including proof of their identity, residency in the state and date of birth. The new rules would apply to those who do not have proof they are in the country legally, including those not eligible for a Social Security number. Applicants must present at least two documents. The first must be either a valid unexpired foreign passport or a valid unexpired consular identification.
A second kind of identification could include an unexpired driver’s license from any US state or territory, a birth certificate, a valid unexpired foreign national identification card or foreign driver’s license, or a marriage certificate issued in Massachusetts. At least one document must contain a photograph. The bill also states that immigrants eligible for the driver’s licenses would not be registered to vote. Legislators have also stated that measures will be taken to ensure that the information provided by applicants will not be used to profile, target or report a person to immigration authorities. If the measure passes, licenses will not be available until July 1, 2023.
Extension of EAD validity
On February 7, 2022, U.S. Citizenship and Immigration Services published updated policy guidance to change the maximum validity period that may be granted for Employment Authorization Documents (EADs) issued to certain applicants, as well as to provide general guidance on adjudicating Form I-765, Application for Employment Authorization.
Starting today, USCIS will generally grant new and renewed EADs that are valid for two years to applicants in the following categories:
Admitted as a refugee (a)(3);
Granted asylum (a)(5);
Granted withholding of deportation or removal (a)(10); and
VAWA self-petitioner (c)(31).
Additionally, USCIS will generally grant new and renewed EADs up to the end of the parole or deferred action period to applicants in the following categories:
Paroled into the United States for urgent humanitarian reasons or significant public benefit (c)(11); and
Granted deferred action (non-DACA) (c)(14).
Increasing the maximum validity period that may be provided on EADs for these categories will help ease processing backlogs by reducing the frequency and number of times these applicants must renew their EADs and will help prevent gaps in employment authorization and documentation.
This policy update is effective immediately. Therefore, new and renewed EADs issued for impacted categories on or after February. 7, 2022, will reflect the updated validity periods. EADs issued before February. 7, 2022, are not affected. USCIS will continue to issue replacement EADs with the same validity date as the original EAD.
CBP Begins Issuing New I-94 Designations for L-2 and E Dependent Spouses Granting Employment Authorization Incident to Status
In November 2021, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance addressing the automatic extension of status for H-4, L-2, and E dependent spouses, as well as confirming that L-2 and E dependent spouses (but not H-4 dependent spouses) hold work-authorization incident to their status, meaning that these dependent spouses will not need an employment authorization document (EAD) to work in the United States. USCIS indicated that it would work with U.S. Customs and Border Protection (CBP) to update the I-94 system to indicate work authorization, as the system previously in place did not differentiate between work-authorized L-2 and E dependent spouses and non-work-authorized L-2 and E dependent children.
On January 31, 2022, CBP began implementing the new I-94 system at ports of entry throughout the United States, issuing admission codes so that E and L spouses’ I-94s now bear a spousal designation in the form of an “S” next to the E or L2 designation (e.g., an L-2 spousal I-94 is now designated as “L2S”). For E and L-2 dependent spouses who last entered the United States before January 31, 2022, and who have pending E dependent or L-2 extension-of-status applications with USCIS, it is expected that USCIS will soon issue approval notices with the new designation. An I-94 with the appropriate dependent spouse designation can be used as an employee’s “List C” document for I-9 purposes, along with an additional “List B” document to confirm the employee’s identity.
USCIS releases Notice for Certain Natives/Citizens of Cuba who are “Arriving Aliens and were Denied Adjustment of Status due to lack of proof that they were Admitted or Paroled
USCIS released a notice on February 23, 2022 stating that if you are a native or citizen of Cuba who:
(1) Meets the definition of n “arriving alien” under 8 C.F.R. 1.2; and
(2) were, prior to the entry of a removal order under Section 240 of the Immigration and Nationality Act (INA), initially released by the Department of Homeland Security (DHS) from DHS custody into the United States under INA 236 (for example, with a Form I-220A, Order of Release on Recognizance, or on a DHS Bond under INA 236)2 between January 12, 2017 and November 17, 2021; and
(3) has not departed the United States since this initial release by DHS from DHS custody; and
(4) applied for adjustment of status under the Cuban Adjustment Act (CAA) by filing a Form I-485, Application to Register Permanent Residence or Adjust Status (Form I-485) with USCIS; and
(5) USCIS denied your Form I-485 based solely on a determination that you did not meet your burden of establishing that you had been admitted or paroled as required for adjustment of status under the CAA.
You may:
File a new Form I-485 with USCIS, with fee, or with a Form I-912, Request for a Fee Waiver (Form I-912), if eligible; or
File a timely Form I-290B, Notice of Appeal or Motion (Form I-290B) with USCIS, with fee, or with a Form I-912, if eligible. If a timely Form I-290B is filed and the above criteria are met, USCIS will reopen and re-adjudicate the previously denied Form I-485.
Additionally, if the deadline for filing a timely Form I-290B has passed, you may, for a period of one year from the date of this notice, file an untimely Form I-290B, with fee, or with a Form I-912, if eligible. If an untimely Form I-290B is filed within one year from the date of this notice and the above criteria are met, USCIS will reopen and re-adjudicate the previously denied Form I-485. An untimely Form I-290B should be annotated “UNTIMELY MTR – DENIED CAA I-485 FOR NO ADMISSION OR PAROLE.”
If you meet the above criteria you should attach a copy of this notice to the top of any new Form I-485 or Form I-290B, clearly indicate that you meet the qualifying criteria, and include evidence that you meet the qualifying criteria with the filing. Additionally, if subsequent to the USCIS denial of the Form I-485 DHS has since issued you a parole under INA 212(d)(5), you should also include a copy of this parole (for example, a Form I-94 or other document issued to you by DHS indicating that you have been paroled under 212(d)(5)) with the new filing.