USCIS Announces Backlog Relief Measures
On March 29, USCIS announced measures to speed up processing for some visa applications. The agency has been plagued with mounting processing delays, only made worse in the last two years by the pandemic. The measures include increasing staff, temporarily increase some automatic extensions, and expand premium processing to previously ineligible applications. Read our recent client alert here for more information.
Biden Administration Announces Relief Measures for Ukrainians
On March 24, 2022, President Biden announced that the United States will accept up to 100,000 Ukrainians and other displaced people fleeing the Russian invasion in Ukraine, in addition to providing an additional $1 billion in humanitarian aid. “This is not something that Poland or Romania or Germany should carry on their own. This is an international responsibility,” he said.
U.S. officials acknowledged that many displaced Ukrainians will want to remain in Europe, closer to their homes and family members, but some may need to find refuge elsewhere. A Biden administration official told reporters traveling with President Biden on March 24, 2022, that admissions of Ukrainians into the United States will be accomplished through a combination of refugee admissions, parole, and immigrant and nonimmigrant visas, with a focus on Ukrainians with family members in the United States. The official said that the United States will prioritize vulnerable people, including those with medical needs, journalists, dissidents, and LGBTQI.
The new measures are in addition to temporary protected status (TPS), for which Ukraine has been designated for 18 months. Individuals eligible for TPS under the Ukraine designation must have continuously resided in the United States since March 1, 2022. Up to an estimated 75,000 Ukrainians in the United States could be eligible for TPS.
According to reports, the Biden administration still struggles with processing issues, including for tens of thousands of Afghans evacuated following the U.S. military withdrawal from Afghanistan, along with other immigration and refugee-related backlogs. Although about 75,000 Afghans have entered the United States via humanitarian parole, many others wait overseas in U.S.-run centers for their cases to be processed.
- “FAQs for Temporary Protected Status (TPS) for Ukraine.” Klasko Immigration Law Partners, Mar. 11, 2022, https://www.klaskolaw.com/hot-questions/faqs-for-temporary-protected-status-tps-for-ukraine/
- “The U.S. Will Take In Up to 100,000 Ukrainian Refugees Fleeing the War,” National Public Radio, Mar. 24, 2022, https://www.npr.org/2022/03/24/1088506487/us-ukraine-refugees
- “United States Will Welcome Up to 100,000 Ukrainian Refugees,” New York Times, Mar. 24, 2022, https://www.nytimes.com/2022/03/24/us/ukrainian-refugees-biden.html
- Remarks by President Biden, Mar. 24, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/24/remarks-by-president-biden-in-press-conference-7/
- USCIS news release (Ukrainian TPS), Mar. 3, 2022, https://www.uscis.gov/newsroom/news-releases/secretary-mayorkas-designates-ukraine-for-temporary-protected-status-for-18-months
USCIS Updates Guidance on Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications
U.S. Citizenship and Immigration Services (USCIS) announced on March 23, 2022, that it has updated its policy manual, effective immediately, to align existing guidance on certain first preference immigrants with a recent manual update relating to nonimmigrants of extraordinary ability. Specifically, USCIS is updating its guidance about two evidentiary criteria relating to immigrants of extraordinary ability and one relating to outstanding professors and researchers “to more closely align with recently issued nonimmigrant guidance pertaining to O-1A nonimmigrants of extraordinary ability,” the agency said.
The updated guidance clarifies that:
- For the extraordinary ability and outstanding professor or researcher classifications, “published material” about the person (or the person’s work in the case of an outstanding professor or researcher) in professional or major trade publications or other major media need not be a printed article; rather, a petitioner may submit more varied forms of evidence including a transcript of audio or video coverage.
- In the extraordinary ability classification, a person may satisfy the leading or critical role criterion through a qualifying role for a distinguished department or division in addition to an entire organization or establishment.
- “Qualifying Published Material and Scope of Leading or Critical Role in Extraordinary Ability and Outstanding Professor or Researcher Visa Classifications,” USCIS Policy Alert, Mar. 23, 2022, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20220323-ExtraordinaryAbility.pdf
USCIS Updates Guidance on Employment Authorization Class of Admission Codes for E and L Nonimmigrant Spouses
Following an announcement by U.S. Citizenship and Immigration Services (USCIS) on March 18, 2022, that it is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status, the agency announced on March 24, 2022, that as of January 30, 2022, USCIS and U.S. Customs and Border Protection began issuing Form I-94, Arrival-Departure records, with new Class of Admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment authorized based on their status.
USCIS said the COA designations for E nonimmigrant spouses are E-1S, E-2S, E-3S, and L-2S for nonimmigrant L spouses. Forms I-94 containing these code designations are acceptable as a List C, #7 Employment Authorization Document issued by the Department of Homeland Security, USCIS said.
- “Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses,” USCIS, Mar. 24, 2022, https://www.uscis.gov/i-9-central/covid-19-form-i-9-related-news/documentation-of-employment-authorization-for-certain-e-and-l-nonimmigrant-dependent-spouses
- USCIS policy alert, Mar. 18, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses
DHS to End COVID-19 Temporary Policy for I-9 List B Documents on May 1
The Department of Homeland Security (DHS) announced that beginning May 1, 2022, it is ending the COVID-19 temporary policy for List B identity documents. As of that date, employers will no longer be able to accept expired List B documents.
If an employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must update their I-9 employment authorization verification forms by July 31, 2022. DHS provided the following table with details:
- E-Verify notice, Mar. 17, 2022, https://www.e-verify.gov/about-e-verify/whats-new/dhs-to-end-covid-19-temporary-policy-for-expired-list-b-identity-documents
USCIS Urges Eligible Individuals to Consider Applying for Adjustment in the E-2 Category Based on April Visa Bulletin Date for Filing for India
The Department of State’s Visa Bulletin for April 2022 advances the date for filing applications for an immigrant visa or adjustment of status in the EB-2 category for India from September 1, 2013, to September 1, 2014. U.S. Citizenship and Immigration Services (USCIS) encourages noncitizens who have approved immigrant visa petitions in the EB-2 category chargeable to India and a priority date earlier than September 1, 2014, to consider applying for adjustment of status in April.
USCIS noted that applicants should include Form I-693, Report of Medical Examination and Vaccination Record, with Form I-485, Application to Register Permanent Residence or Adjust Status, to save time. Concurrently filing these two forms is not required, “but filing both forms at the same time may eliminate the need for USCIS to issue a Request for Evidence to obtain your Form I-693. This may also help avoid adjudication delays if we decide that you do not need to be interviewed,” USCIS said.
USCIS continues to encourage eligible applicants to consider requesting to transfer the underlying basis of their pending adjustment of status applications in the EB-3 category to the EB-1 or EB-2 category if they meet the following criteria: a visa is unavailable to them in the
EB-3 category; they have a pending or approved I-140, Immigrant Petition for Alien Workers; and a visa is available in the EB-1 or EB-2 category.
- USCIS alert, Mar. 17, 2022, https://www.uscis.gov/newsroom/alerts/uscis-urges-eligible-individuals-to-consider-applying-for-adjustment-of-status-in-the-eb-2-category
- Visa Bulletin for April 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-april-2022.html
USCIS Prepares to Resume Public Services on June 4
While certain offices are temporarily closed, USCIS continues to provide limited emergency in-person services. As services begin to reopen, offices will reduce the number of appointments and interviews “to ensure social distancing, allow time for cleaning and reduce waiting room occupancy.” USCIS said, “If you are feeling sick, please do not go to your appointment. Follow the instructions on your appointment notice to reschedule your appointment for when you are healthy. There is no penalty for rescheduling your appointment if you are sick.”
- USCIS alert, Mar. 15, 2022, https://www.uscis.gov/newsroom/alerts/uscis-preparing-to-resume-public-services-on-june-4
USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses
U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2022, that it is updating guidance to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status. USCIS noted:
- On November 12, 2021, USCIS issued a policy announcement to clarify that it would consider E and L spouses to be employment-authorized based on their valid E or L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children.
- As of January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.
- An E or L spouse age 21 or over who has an unexpired Form I-94 that USCIS issued before January 30, 2022, will receive a notice from USCIS beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization. An E or L spouse who is under 21, or has not received the notice by April 30, can email E-L-married-U21@uscis.dhs.gov to request a notice.
- USCIS will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their Form I-94 from CBP should visit cbp.gov.
- USCIS alert, Mar. 18, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses
CBP Announces Electronic I-94 Issuance at Land Ports of Entry
U.S. Customs and Border Protection (CBP) is now issuing the Form I-94 (Arrival/Departure Record) electronically at land ports of entry. The Form I-94 documents nonimmigrants’ status in the United States, the approved length of stay, and departure information.
CBP has automated the Form I-94 process for most nonimmigrants arriving by air and sea. However, CBP previously issued paper Form I-94s to nonimmigrants arriving by land. For land arrivals, CBP is no longer issuing paper forms to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request, if feasible, CBP said, noting that nonimmigrants can access the Form I-94 online or via mobile application.
- CBP notice, 87 Fed. Reg. 15446 (Mar. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05758.pdf
Omnibus Spending Bill Signed; EB-5 Regional Center Program Reauthorized
The Consolidated Appropriations Act, 2022, an omnibus spending bill passed by Congress and signed by President Biden, reauthorizes the EB-5 regional center program for five years, among other things. The bill includes some changes to the program. Selected highlights are below:
- The EB-5 regional center program is reauthorized until September 30, 2027.
- For targeted employment areas (TEAs) or infrastructure projects, the investment will increase to $800,000. For other projects, the required investment is $1,050,000. Existing investors’ petitions will be grandfathered under existing rules. TEA letters are valid for two years.
- As long as an EB-5 petition is filed by September 30, 2026, U.S. Citizenship and Immigration Services (USCIS) must continue to process it even if the program lapses in the future.
- Immigrant investor petitions can include concurrent adjustment of status filings.
- Projects can be changed if a regional center or new commercial enterprise is terminated.
- USCIS will audit regional centers at least every five years.
- Third-party agent fees and involvement must be disclosed.
The bill also reauthorizes the Violence Against Women Act. It does not include visa recapture provisions.
- “Client Alert: EB-5 Reauthorization and Other Program Changes,” Klasko Immigration Law Partners, Mar. 16, 2022, https://www.klaskolaw.com/news/eb-5-reauthorization-and-other-program-changes/
- “Investor Immigrants Greet Imminent Revival of the EB-5 Program,” Forbes, Mar. 9, 2022, https://www.forbes.com/sites/andyjsemotiuk/2022/03/09/investor-immigrants-greet-imminent-revival-of-the-eb-5-program/?sh=7223bbff7436
- Consolidated Appropriations Act, 2022, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/2471?r=7&s=1
- “Violence Against Women Act Renewed as Part of Omnibus Spending Package,” The Hill, Mar. 9, 2022, https://thehill.com/policy/finance/597473-violence-against-women-act-renewed-as-part-of-omnibus-spending-package
- “Green Card Backlog Fix Dropped From Lawmakers’ Budget Deal,” Bloomberg Government, Mar. 9, 2022, https://about.bgov.com/news/green-card-backlog-fix-in-doubt-as-lawmakers-prep-spending-deal/
- “Biden Signs Spending Bill That Includes $13.6 Billion in Ukraine Aid,” CBS News, Mar. 11, 2022, https://www.cbsnews.com/news/ukraine-aid-biden-signs-omnibus-bill/
2022 Klasko Spring Webinar Series
We are hosting a series of webinars featuring Klasko’s attorneys. They will provide the latest immigration updates and trending issues including processing delays, priority dates, what working in the new world looks like for employers, and more. There will also be a special interactive session where questions submitted by you will be answered. Register here!
IN THE NEWS
RECENT SPEAKING ENGAGEMENTS
Elise A Fialkowski
On March 30th, Elise spoke at the 2022 AILA Border Issues Virtual Conference on a panel entitled Visiting the United States For Work Or Pleasure: What Are The Rules, And How Can I Effectively Counsel My Clients?
Anu Nair │ Natalia Gouz │ Myriam Jaidi
In this webinar, Klasko attorneys covered different visa categories and key concepts and procedures for employment-based immigration in this session entitled Fundamentals of Immigration Law.
UPCOMING SPEAKING ENGAGEMENTS
Elise A. Fialkowski │ Jessica A. DeNisi │ Carolina Regales
On April 6th, Elise, Jessica, and Carolina will discuss trends and case strategies in this webinar entitled Working in the New World: USCIS vs. Consular Processing.
Michele G. Madera │ Karuna C. Simbeck │ Candace Hill
On April 7th, Michele, Karuna, and Candace will cover the key changes employers need to know now that remote work is prevailing in this webinar entitled Working in the New World: Remote and Hybrid Work.
Anu Nair │ Allie K. Dempsey │ Nigel D. James
On April 14th, Anu, Allie, and Nigel will cover how to improve your chances of getting an EB-1, the do’s and don’ts, and alternative options in this session entitled Career Moves for a Future EB-1.
Michele G. Madera
On April 20th, Michele will be presenting to Vanderbilt University on side gigs and what is and isn’t considered employment.
William A. Stock │ Andrew J. Zeltner │ Maria M. Mihaylova
On April 20th, Bill, Drew, and Maria will give general advice on what priority dates mean, cover short-term and long-term green card predictions, and what to expect for the remainder of the 2022 fiscal year in this webinar entitled Green Card Priority Dates.
Michele G. Madera
On April 22nd, Michele will be speaking at the AILA Philadelphia Conference on a panel entitled Immigration Implications of Remote.
Andrew J. Zeltner │ Karuna C. Simbeck │ Arielle J. Ratush │ Grace Waweru
On May 5th, Drew, Karuna, Arielle, and Grace will answer questions submitted by YOU. Please submit your most burning immigration questions while registering for this event. Register here!
ICYMI: RECENT BLOG POSTS AND ALERTS
Client Alert: EB-5 Reauthorization and Other Program Changes
In this client alert, Daniel B. Lundy addresses the EB-5 Reform and Integrity Act of 2022 and other program changes.
FAQs for Temporary Protected Status (TPS) for Ukraine
In this blog, we cover pressing questions on Temporary Protected Status for Ukraine.
Higher Education: Immigration Consequences of University Mergers
In this article, Myriam Jaidi provides an overview of the main immigration-related considerations for educational institutions planning a merger, acquisition, or similar endeavor.
Client Alert: Temporary Protected Status Designate for Ukraine
In this client alert, Allie K. Dempsey addresses the Department of Homeland Security designating Temporary Protected Status to Ukraine for 18 months.
Last Month the firm celebrated Women’s History Month on our Instagram. Follow us on our Instagram to see what else we have in store, @klaskoimmigrationlaw!
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.