USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted
U.S. Citizenship and Immigration Services (USCIS) reminded employers that the Department of Homeland Security (DHS) ended the temporary flexibility related to accepting expired List B documents for Form I-9 employment eligibility verification purposes. DHS explained that it adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, but document-issuing authorities have reopened and/or provided alternatives to in-person renewals. If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must update their I-9 forms by July 31, 2022.
- USCIS announcement, July 6, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/reminder-dhs-ended-covid-19-temporary-policy-for-expired-list-b-identity-documents
Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions
U.S. Citizenship and Immigration Services (USCIS) updated its guidance on evidence that can be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields.
USCIS clarified that “being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field. This evidence is added to the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability in the STEM fields.”
- USCIS alert, July 22, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-o-1-petitions-with-a-focus-on-stem-fields
- O-1 Beneficiaries, Chapter 4, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4
Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits
According to reports, due to visa interview wait times and backlogs reaching new highs, thousands of lawsuits have been filed. Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.
U.S. Citizenship and Immigration Services (USCIS) acknowledged the increase in delays and backlogs in recent years and blamed the problems on the COVID-19 pandemic and resource constraints, including a drop in paperwork submissions with fees and a staff hiring freeze under the previous administration. USCIS released a public statement in March 2022 outlining steps the agency is taking to address the issues, including targeting processing backlogs, expanding premium processing, and improving access to employment authorization documents. A USCIS spokesperson said the agency expects to resolve related processing issues and reach a 95 percent hiring target by the end of 2022.
- “Visa Interview Wait Times Reach New Highs: 247 Days for Visitors/Business Travelers,” CATO at Liberty, July 19, 2022, https://www.cato.org/blog/visa-interview-wait-times-reach-new-highs-247-days-visitors/business-travelers
- “Government Inaction on Immigration Paperwork Leads to Record High Lawsuits,” TRAC Report, July 12, 2022, https://trac.syr.edu/tracreports/civil/689/
- “Thousands of Lawsuits Have Been Filed Over Wait Times, Backlogs at U.S. Citizenship and Immigration Services,” Reason, July 18, 2022, https://reason.com/2022/07/18/thousands-of-lawsuits-have-been-filed-over-wait-times-backlogs-at-u-s-citizenship-and-immigration-services/
- “USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders,” USCIS, March 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work
USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions
On July 15, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the second phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Similar to the first phase of the expansion, this phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.
Beginning August 1, 2022, USCIS will accept Form I-907 requests for:
- E13 multinational executive and manager petitions received on or before July 1, 2021; and
- E21 NIW petitions received on or before August 1, 2021.
USCIS will reject premium processing requests for these Form I-140 classifications if the receipt date is after the dates listed above. USCIS has 45 days to take cative action on cases that request premium processing for these newly included Form I-140 classifications. The agency said it will not accept new (initial) Forms I-140 with a premium processing request now.
On May 24, 2022, USCIS published a new version of Form I-907, dated 05/31/22. As of July 1, the agency is no longer accepting the older 09/30/20 edition of Form I-907.
- USCIS announcement, July 15, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-second-phase-of-premium-processing-for-certain-previously-filed-eb-1-and-eb-2
House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances
Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual National Defense Authorization Act (H.R. 7900):
- A measure to streamline the path to a green card for immigrants with doctorates in science, technology, engineering, and mathematics (STEM) fields failed as the Rules Committee deemed it “out of order” for consideration as an amendment to the defense bill. According to reports, other efforts to find a way to advance it also stalled in negotiations.
- However, a proposal to admit experts in science and technology for national security-related reasons will receive a vote on the House floor. The proposal appears to be limited to 10 experts per year to be selected by the Department of Defense.
- Also advancing to the House floor is a measure to ensure that “documented Dreamers,” who are dependents of foreign workers or applicants for permanent residence (green cards), won’t age out of legal status when they turn 21.
- Another amendment that advanced would exempt Afghan students from having to show nonimmigrant intent when they apply for student visas to the United States.
- “Immigration Measure for STEM Workers Adrift After Defense Flop,” Bloomberg Law, July 13, 2022, https://bit.ly/3PddJAR
New EB-5 Immigrant Investor Forms Released
U.S. Citizenship and Immigration Services (USCIS) has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022, which made significant changes to the filing and eligibility requirements for investors under the EB-5 program. The form is now split into two versions:
Form I-526, Immigrant Petition by Standalone Investor, is to be used by “standalone immigrant investors who are not seeking to pool their investment with additional investors seeking EB-5 classification.” It closely resembles the prior edition of Form I-526.
Form I-526E, Immigrant Petition by Regional Center Investor, is to be used by “immigrant investors who are seeking to pool their investment with one or more additional investors seeking EB-5 classification under the new regional center program.”
Form I-526E “reflect[s] elements of the new regional center program, including the ability to incorporate evidence by reference from a regional center’s Form I-956F,” USCIS said.
As of July 12, 2022, Forms I-526 and I-526E must be submitted in compliance with new program requirements, USCIS said. The filing fee is $3,675 for each form. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000, as required by the EB-5 Reform and Integrity Act of 2022. This additional amount does not apply to an amendment request. A separate biometric services fee of $85 is also required for each petitioner submitting an initial I-526E petition. The biometric services fee is not required for petitions filing the I-526 to amend a previously filed petition.
- USCIS announcement, July 12, 2022, https://www.uscis.gov/newsroom/alerts/uscis-releases-new-forms-for-immigrant-investor-program-0
- Form I-526, https://www.uscis.gov/i-526
- Form I-526E, https://www.uscis.gov/i-526e
Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers
U.S. Senators Amy Klobuchar and Susan Collins sent a letter on July 7, 2022, to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor (DOL) is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.
They noted that the H-1B, H-2B, and employment-based visa programs all require DOL to conduct prevailing wage determinations to ensure that hiring foreign workers will not negatively affect the wages and working conditions of U.S. employees in similar positions. As of May, the senators pointed out, some employers who filed applications for prevailing wage determinations in November were still waiting for their applications to be processed. “These delays make it hard for businesses to have the confidence that they will have the workers they need,” the senators said. “This is especially true for seasonal businesses that have a small window of time where they can make all the revenue they need for the entire year. Delays of even a few days can have devastating impacts on their ability to stay open.”
The senators asked for answers to their questions by July 29, 2022.
- Letter from senators to Secretary Walsh, July 7, 2022, https://bit.ly/3Ocd81g
DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation
The Department of Homeland Security (DHS) has extended the timeframe beneficiaries paroled into the United States under the “Uniting for Ukraine” program have to attest to their compliance with medical screening for tuberculosis and additional vaccinations, if required. Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States. Previously, such beneficiaries had to complete the medical screening and attestation within 14 days of arrival.
The attestation is a condition of parole and must be completed in the beneficiary’s USCIS online account. Beneficiaries are responsible for arranging their vaccinations and medical screening for tuberculosis, including an Interferon-Gamma Release Assay (IGRA) blood test, DHS said.
- DHS news release, July 13, 2022, https://www.uscis.gov/newsroom/alerts/time-frame-extended-for-uniting-for-ukraine-parolees-to-comply-with-medical-screening-and
Drew Zeltner and Maria Mihaylova sit down with Stacy Clark on Legal Talk with Stacy Clark on MLTV21. Follow us on Facebook, Twitter, and LinkedIn to be the first to know when the episode airs.
IN THE NEWS
H. Ronald Klasko
Ron Klasko recently joined Mona Shah and John Pratt on the podcast Global Investment Voice to discuss the preliminary injunction that reopened the EB-5 regional center program.
Maria M. Mihaylova
Maria’s article Update On COVID-19 Consular Operations: An Oxymoron was published on One News page.
RECENT SPEAKING ENGAGEMENTS
H. Ronald Klasko
Partner Ron Klasko spoke on his expertise and work on the RIA preliminary injunction alongside General Counsel Paul Hughes in this event hosted by IIUSA.
ICYMI: RECENT BLOG POSTS AND ALERTS
Podcast Episode 29: EB-5 Regional Center Program Reopened
Klasko EB-5 attorneys discuss the latest updates on a court ordered nationwide preliminary injunction and how that affects the EB-5 regional center program. Read and listen here!
Podcast Episode 28: What is EB-1 Immigration?
In this episode, Klasko EB-5 attorneys discuss the latest updates to the EB-5 regional center program and what that means for investors, developers, and regional centers. Read and listen here!
Update on COVID-19 Consular Operations: An Oxymoron
In this article, Maria Mihaylova addresses why the Department of State and its foreign posts are still operating under pandemic conditions and what’s keeping them from moving towards a post-pandemic state.
FIRM NEWS: Ron Klasko Discusses Regional Center Program Reopening on Global Investment Voice Podcast
Ron Klasko recently joined the Global Investment Voice podcast to discuss the preliminary injunction that reopened the EB-5 regional center program.
During our annual summer event, a new annual award was announced. This award is in memory of and named after Klasko’s beloved attorney Lisa Felix. This year the Lisa Felix award went to Kristin Peresta.
Kristin, Director of Client Communications & Workload, received the inaugural Lisa Felix Award for her innate ability to spread unconditional, unwavering, and selfless kindness among the KILP community. In Kristin’s peer nomination, a KILP staff member said, “You never walk away from Kristin and feel like you have not been heard… She always finds ways to keep camaraderie and laughter part of every day while meeting work goals and deadlines. I think Lisa Felix would very much agree that Kristin is a great member of the KILP family and deserving of this award.” Congratulations, Kristin!
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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.