H-1B Planning Season is Upon Us

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.

Now is the best time for employers to decide whether they will file H-1B petitions and for whom.  It is good to both start the internal discussions and to initiate the process  as the H-1B lottery registration for the new fiscal year cap, including those eligible for the advanced degree exemption, will be in March. The H-1B random lottery process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

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

Information about the impact of recent layoffs on visa status

Recent layoffs in the tech sector require foreign nationals holding H-1B visa status to look for a new position; generally, a grace period of up to 60 days grace period is permitted.  During that time period, the H-1B visa holder must secure a new H-1B eligible position and sponsorship by the new employer to file an H-1B petition or file a request for change of status to another qualifying category.   Contact attorneys at ID&C if you wish to obtain more information about this topic.

USCIS Recommendations for Paper Filings to Avoid Scanning Delays

On November 16, 2022, USCIS issued some guidance and recommendations regarding paper filings to improve efficiency, as the agency now scans and uploads many documents into electronic database systems. To avoid delays and improve scanning efficiency, USCIS recommends the following for paper filings:

• Do not hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another.

• Do not include photos or documents smaller than 4x6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when USCIS requests a passport photo with the filing.

• Do not include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. USCIS will not accept these types of materials. However, USCIS will accept photographs or photocopies of these items.

• Do not submit forms or evidence documents bound with a binding or spiral wire/plastic.

• Do not submit evidence using photo albums, scrapbooks, binders, or greeting cards.

• Do not fold documents.

• Do not place sticky notes on documents.

• Do not use insertable tab dividers.

• Do not print forms on colored paper.

• Do not submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If applicants are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended.

• Do not send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:

  • required by the form instructions for the application, petition, or request you are filing; or

  • USCIS specifically issues a request for applicants to submit an original document.

These recommendations are offered to improve USCIS efficiency while processing applications, petitions, or requests.

Using SAVE’s CaseCheck Tool

In order to process an application for a benefit or license with a federal, state, or local government agency, these agencies may need to verify applicants’ immigration status to process the application. To verify an applicant’s status, agencies use the SAVE Program (the Electronic Immigration Status Verification system). CaseCheck, a free and fast service, lets applicants follow the progress of their SAVE verification case online.

Applicants may check the status of their SAVE verification at USCIS’s webpage here.  Applicants will need to enter their date of birth along with their verification case number, provided by the relevant agency or the number from one of the following immigration documents:

• Certificate of Citizenship

• Certificate of Naturalization

• I-20 Certificate of Eligibility for Nonimmigrant Student Status

• I-94 Arrival/Departure Record

• I-94 stamp in Unexpired Foreign Passport

• I-551 Permanent Resident Card

• I-765 Employment Authorization Card

More information about this tool can be found at USCIS’s SAVE CaseCheck webpage here.

U.S. Court of Appeals for the Fifth Circuit Rules that DACA Program is “Unlawful”

On October 5, 2022, the U.S. Fifth Circuit Court of Appeals voted unanimously to uphold the ruling of a U.S. Federal District Court in the Southern District of Texas (Texas v. United States) enjoining the DACA (Deferred Action Against Childhood Arrivals) Program and vacated the 2012 Department of Homeland Security (DHS) memorandum establishing the program. The Fifth Circuit agreed with the lower court’s findings that the DACA program violated the Administrative Procedure Act and was substantively and procedurally unlawful. However, the Fifth Circuit returned the case to the lower court in light of the Bidem Administration’s recently promulgated DACA regulation, which is scheduled to take effect on October 31, 2022, and agreed to maintain the current stay that temporarily preserves the DACA program. As a result of the stay that remains in place, current DACA recipients will not lose their protection from removal or work authorization. DHS will continue to accept the filing of both initial and renewal DACA applications but will process only the DACA renewal requests. New DACA applications will not be adjudicated unless the DACA program is upheld in subsequent litigation.

U.S. Citizenship and Immigration Services Extending Certain COVID-19-Related Flexibilities through January 24, 2023

On October 24, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is extending certain COVID-19-related flexibilities through January 24, 2023. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023, inclusive:

• Requests for Evidence;

• Continuations to Request Evidence (N-14);

• Notices of Intent to Deny;

• Notices of Intent to Revoke;

• Notices of Intent to Rescind;

• Notices of Intent to Terminate regional centers;

• Notices of Intent to Withdraw Temporary Protected Status; and

• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will 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 (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision we made; and

• USCIS made that decision between November 1, 2021, and January 24, 2023, inclusive.

Department of Homeland Security Designates Ethiopia for Temporary Protective Status

On October 21, 2022, the Department of Homeland Security (DHS) designated Ethiopia for Temporary Protected Status (TPS) for 18 months. Only Ethiopian nationals who are already residing in the United States as of October 20, 2022, are eligible for TPS. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ethiopia including severe food insecurity, flooding, drought, and large-scale displacement. Instructions on applying for TPS and Employment Authorization Document (EAD) are expected to be published in the Federal Register shortly. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Department of State Provides Update on Worldwide Visa Operations

The Department of State (DOS) announced that worldwide visa operations are recovering faster than expected from the COVID-19 pandemic. DOS is successfully lowering visa interview wait times worldwide and has doubled its hiring of U.S. Foreign Service personnel. DOS expects to reach pre-pandemic processing times by the end of this year. Ninety-six percent of U.S. embassies and consulates are interviewing visa applicants, and nonimmigrant and immigrant visa applications are being processed at 94 percent and 130 percent of pre-pandemic monthly averages, respectively.  In the past 12 months, DOS processed 8 million nonimmigrant visas, and is expected to meet and exceed pre-pandemic visa processing capacity. DOS credits part of its success to its expanded visa interview waiver program. DOS estimates that 30 percent of nonimmigrant visa applicants worldwide may be eligible for an interview waiver, which will make in-person interview appointments more accessible. Other DOS milestones include: 1) reducing the overall immigrant visa interview scheduling backlog by 25 percent; 2) adjudicating more student visas in July 2022 than in any other month since 2016, with nearly 180,000 F, M, and academic J visas processed; 3) exceeding pre-pandemic levels of visa processing for seasonal agricultural and nonagricultural workers; 4) issuing all available E-3 visas in FY 2022; and 5) issuing the highest number of Diversity Visas (DV) in the past 25 years, with all available DV numbers exhausted when that total was combined with the domestic applications in the U.S.

If you are planning international travel, please visit the website of the U.S. Embassy or Consulate where you are applying for important information about your visa interview. You can also look up visa appointment wait times on the Department of State website.

Department of Homeland Security Launches Venezuelan Parole Program

On October 12, 2022, Department of Homeland Security (DHS) announced a new parole program for Venezuelan that will provide a lawful and streamlined way for nationals of Venezuela who are outside the United States and lacking U.S. entry documents to come to the United States. Through a fully online process, individuals can be considered, on a case-by-case basis, for advance authorization to travel to the United States and seek a temporary period of parole for up to two years.

To be eligible, Venezuelans must:

• have a supporter in the United States who will provide financial and other support;

• pass rigorous biometric and biographic national security and public safety screening and vetting; and

• complete vaccinations and other public health requirements.

Venezuelans are ineligible if they:

• have been ordered removed from the United States in the previous five years;

• have crossed without authorization between ports of entry after the date of announcement;

• have irregularly entered Mexico or Panama after the date of announcement, or are a permanent resident or dual national of any country other than Venezuela, or currently hold refugee status in any country; or

• have not completed vaccinations and other public health requirements.

Venezuelans should not travel to Mexico to pursue entry into the United States. The Department of Homeland Security (DHS) strongly encourages Venezuelans seeking entry to the United States who do not have a visa or who are not eligible for one to seek entry through this new program. Access to this process for Venezuelans is free. Neither the supporter nor the beneficiary is required to pay the U.S. government a fee for the application. USCIS cautions applicants to be aware of any potential scams by anyone who asks for money in the application process. USCIS has created a webpage for the process for Venezuelans.

U.S. Citizenship and Immigration Services No Longer Requires Duplicate Copies of Form I-129 Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that it no longer requires a duplicate copy of Form I-129, Petition for a Nonimmigrant Worker or any of the supporting documentation for any visa classification unless specifically instructed by USCIS. Due to enhanced electronic scanning capabilities and data-sharing with the Department of State, duplicate copies are no longer needed to avoid delays in consular processing.