A Note from Ron Klasko
2021 has been a year of transition – – transition from the most unusual of years to what will be the new normal in 2022.
As such, it is a time for reflection and a time to look forward. We reflect on how appreciative we are of our employees who worked so hard and so efficiently in remote settings and our clients who collaborated with us so responsively to enable us to meet their immigration needs and priorities.
As we look forward, we hope that 2022 is a return to normalcy for all of us. We are so gratified to be able to move forward with the very best group of employees and the most loyal roster of clients. With that combination, the future looks bright indeed.
On behalf of my partners, may your holiday season be joyous, and may 2022 be a year of happiness, good health, and good fortune.
State Dept. Expands Waivers of In-Person Interviews for Certain Temporary Nonimmigrant Visa Applicants
The Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved by U.S. Citizenship and Immigration Services.
The new authorization applies to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions, including that they are applying for a visa in their country of nationality or residence, the Department of State (DOS) said. In addition, the Secretary extended previously approved policies to waive the visa interview for certain students, professors, research scholars, short-term scholars, and specialists (F, M, and academic J visa applicants) through the end of 2022.
Additionally, the Secretary of State has extended consular officers’ ability to waive the in-person interview through December 31, 2022, for the following other categories of nonimmigrant visas: temporary agricultural and non-agricultural workers (H-2 visas), students (F and M visas), and student exchange visitors (academic J visas).
One change to the previous policy, DOS noted, is that applicants who are eligible for the waiver authority because they are citizens or nationals of a Visa Waiver Program (VWP) participating country must have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization to qualify.
DOS said it encourages applicants to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview. Embassies and consulates may still require an in-person interview on a case-by-case basis and depending on local conditions, the agency noted.
- “Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas,” Dept. of State, Dec. 23, 2021, https://bit.ly/3HbODOx
- “Expanded Interview Waivers for Certain Nonimmigrant Visa Applicants,” Dept. of State, Media Note, Dec. 23, 2021, https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/
- “Limited Operations at U.S. Consulates Keep Visa Holders on Edge,” Roll Call, Dec. 22, 2021, https://www.rollcall.com/2021/12/22/limited-operations-at-us-consulates-keep-visa-holders-on-edge/
Restrictions on Travelers From Southern African Countries Lifted December 31
Kevin Munoz, White House Assistant Press Secretary, tweeted on December 24, 2021, that temporary travel restrictions the Biden administration imposed in November on foreign travelers from South Africa and seven other countries in the region, due to the spread of the Omicron variant of COVID-19, are expected be lifted on December 31, 2021, following recommendations from the Centers for Disease Control and Prevention. In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe.
Those traveling from South Africa and the other seven countries will now need to meet the same requirements as other foreign travelers to the United States: be fully vaccinated and obtain a negative COVID-19 test within a day of their departure to the United States.
- Tweet from Kevin Munoz, White House Assistant Press Secretary, Dec. 24, 2021, https://twitter.com/kmunoz46
State Dept. Updates Guidance on F-1, M-1 Student Intent to Depart and Residence Abroad Requirements
The Department of State (DOS) updated its Foreign Affairs Manual (FAM) on intent to depart and residence abroad requirements for F-1 and M-1 students. The guidance may also be useful for J-1 exchange visitors and Afghan scholars.
The guidance states that student visa applicants must possess a present intent to depart the United States at the conclusion of their approved activities, but that such intentions may be subject to, or even likely to, change and that this is not a sufficient reason to deny a visa. Further, the guidance notes, the present intent to depart does not imply a need to return to the country from which they hold a passport; it only means that they must intend to leave the United States upon completion of studies. A student can be considered as maintaining a residence abroad if he or she intends to return to reside with parents or guardians.
The guidance notes that students, who are typically young, are at a phase in life where they are not expected to necessarily have long-range plans or be able to fully explain what their plans are after they finish their studies. The guidance notes that the context of the residence abroad requirement for student visas inherently differs from the context for B visitor or other short-term visas: “It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.”
- 9 FAM 402.5-5(E)(1)(U), Residence Abroad Required, https://fam.state.gov/fam/09FAM/09FAM040205.html
Dept. of Homeland Security Withdraws H-1B Selection Final Rule
The Department of Homeland Security (DHS) published a final rule on December 22, 2021, that withdraws 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, issued January 8, 2021. That rule was vacated by the U.S. District Court for the Northern District of California.
On September 15, 2021, the court in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. March 19, 2021) vacated the H-1B Selection Final Rule. The rule would have changed the way USCIS selects H-1B registrations (or petitions, if registration is suspended) submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.
DHS’s action follows a similar final rule from the Department of Labor, effective December 13, 2021.
- DHS alert, Dec. 21, 2021, https://www.uscis.gov/newsroom/alerts/dhs-withdraws-h-1b-selection-final-rule
- “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” 86 Fed. Reg. 72516 (Dec. 22, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-22/pdf/2021-27714.pdf
- “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021), https://bit.ly/3yg4s3k
U.S. Passport Fees Increased December 27
The fee for a U.S. passport book will increase by $20 on December 27, 2021, the Department of State (DOS) announced, attributing the rise to a need “to ensure we continue to produce one of the most secure travel and identity documents in the world.”
As examples, the current fee for renewing a U.S. passport book by mail is $110; as of December 27, that fee will rise by 18.2% to $130.
DOS also said it plans to launch its long-awaited online passport renewal system by fall 2022. The system is undergoing pilot-testing by federal employees and contractors. President Biden issued an executive order on December 13, 2021, requiring a system that does not require physical documents to be mailed.
- “Fees for U.S. Passports Are About to Pop Way Up,” Dec. 22, 2021, https://www.cnn.com/travel/article/us-passport-fee-increase/index.html
- Tweet from Dept. of State, Dec. 20, 2021, https://twitter.com/TravelGov/status/1472997744600096771
- “Apply Early and Save,” Dept. of State, https://travel.state.gov/content/travel/en/passports/how-apply/fees.html
- Passport fee chart (current fees before Dec. 27), https://travel.state.gov/content/dam/passports/forms-fees/Passport%20Fees%20Chart_TSG_JAN2021.pdf
- Dept. of State fee calculator, https://travel.state.gov/content/travel/en/passports/how-apply/fees/fee-calculator.html
- “State Dept. Expects Long-Awaited Online Passport Renewal System to Launch by Fall 2022,” Federal News Network, Dec. 17, 2021, https://bit.ly/3mxBHdW
- Executive Order, White House, Dec. 13, 2021, https://bit.ly/3H39fbI
CBP Confirms Lifting of Temporary Travel Restrictions Between the United States and Canada, Mexico
U.S. Customs and Border Protection (CBP) published notices on December 23, 2021, announcing the lifting on November 8, 2021, of temporary restrictions that applied to non-essential travel by fully vaccinated travelers with proof of COVID-19 vaccination status entering via land ports and ferry service along the U.S. borders with Canada and Mexico.
- CBP notice (Canada), 86 Fed. Reg. 72842 (Dec. 23, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-23/pdf/2021-28063.pdf
- CBP notice (Mexico), 86 Fed. Reg. 72843 (Dec. 23, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-23/pdf/2021-28064.pdf
DHS Extends I-9 Flexibility to April 30, 2022
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification. The flexibility policy was set to expire December 31, 2021, but because of ongoing pandemic issues, DHS extended it until April 30, 2022.
DHS said that eligible employees working exclusively in remote settings are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If employees are physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation.
Employers are advised to monitor the DHS and ICE workforce enforcement announcements for updates on ending the extension and resuming normal operations. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire, DHS said.
- ICE Announces Extension to Compliance Flexibility, Dec. 15, 2021, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3
USCIS Releases Fourth-Quarter Data Showing Persistent Backlogs, Some Progress
U.S. Citizenship and Immigration Services (USCIS) released fourth-quarter fiscal year (FY) 2021 reports offering a snapshot of statistics for the entire fiscal year. The agency noted:
- Employment-based adjustments: USCIS said it faced an unprecedented challenge of processing more than 237,000 employment-based permanent residence (green card) applications—which 122,000 immigrant visa numbers that the Department of State was unable to process in FY 2020 due to COVID-19 pandemic restrictions. By the end of FY 2021, USCIS had approved more than 172,000 employment-based adjustment of status applications, which the agency said was 50% above the typical baseline.
- Processing delays: Across the agency, the volume of pending cases increased as well as associated processing times. To address the backlogs, USCIS said it reused biometrics for 2.5 million applicants since March 2020; reduced the number of pending biometrics appointments from 1.4 million in January 2021 to 155,000 as of the end of September; and fully eliminated the “front-log” of cases awaiting intake processing (which was more than 1 million receipts in January 2021 and was eliminated in July) by expanding staffing and overtime at USCIS Lockbox facilities.
The USCIS table below shows approved employment-based petitions awaiting visa availability by preference category and country of birth as of September 2021. The grand total was 438,377, with the most from India at 357,720.
- Immigration and Citizenship Data, USCIS. The data reports are available in downloadable CSV and PDF formats. https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data
- “USCIS Announces FY 2021 Accomplishments,” Dec. 16, 2021, https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments
Justice Dept. Adjusts Certain Immigration-Related Penalties on Employers
The Department of Justice has adjusted for inflation the civil monetary penalties assessed after December 13, 2021, for violations occurring after November 2, 2015. The adjustments made by the final rule are based on the Bureau of Labor Statistics’ Consumer Price Index for October 2020.
The final rule includes a table showing the old and new penalties. For example:
- In 2016, “unlawful employment of aliens, first order (per unauthorized alien)” the penalty was a minimum of $539 to a maximum of $4,313. Now the minimum is $590 and the maximum is $4,722.
- For a second such violation, the minimum in 2016 was $4,313 and the maximum was $10,781; now the minimum is $4,722 and the maximum is $11,803.
- DOJ final rule, 86 Fed. Reg. 70740 (Dec. 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-13/pdf/2021-26817.pdf
~Ah~ Finally, it’s 2022, and we are entering it with great optimism. Wishing you a healthy and prosperous new year!
IN THE NEWS
H. Ronald Klasko
Ron Klasko was quoted in Forbes on his thoughts on the State Dept. blocking foreign entrepreneurs from America.
Vicki W. Li
Vicki Li’s recent legal intelligencer article covering the current state of the EB-5 program was published on Law.com.
RECENT SPEAKING ENGAGEMENTS
Allie K. Dempsey | Nigel D. James
On December 2nd, Allie Dempsey and Nigel James presented to Temple University on visa options for after graduation and permanent residence options for international students and exchange visitors.
H. Ronald Klasko
On December 3rd, Ron Klasko was a key speaker in this Latin American and Caribbean Chapter of AILA event on December 3rd on a panel entitled Common NIV Myths.
William A. Stock
On December 8th, Bill Stock was a speaker in this AILA Technology and Innovation Virtual Summit on a panel titled The Future of Government Digitalization.
H. Ronald Klasko
On December 14th, Ron Klasko was a speaker in this AILA Education Department seminar entitled 2021 Litigation Year in Review: Does Suing Still Work?
ICYMI: RECENT BLOG POSTS AND ALERTS
How a Blanket L Visa Enables Global Companies to Quickly Transfer Employees to the US
In this blog, Jessica DeNisi explains the blanket L petition and how your company can benefit from a blanket L visa.
The Current State of the EB-5 Immigrant Investor Visa Program
In this article, Vicki Li addresses the current state of the EB-5 immigrant investor visa program.
Answering the Most Pressing EB-5 Questions
In this blog, Ron Klasko shares his thoughts on the most pressing EB-5 questions.
PERM Recruitment Practices: How the Facebook Settlement Should Affect Your PERM Program
This blog takes a closer look at this settlement agreement and how it may affect PERM moving forward.
On December 10th, Klasko hosted their annual Holiday party! Head over to our Instagram to see pictures from the event.
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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.