This writing will provide an update of U.S. immigration developments for the month of May 2022 and the potential impact on U.S. employers and foreign nationals.
USCIS to Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions
U.S. Citizenship and Immigration Services (USCIS) is implementing Premium Processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.
This expansion of Premium Processing 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.
The expansion will occur in phases:
· Beginning June 1, 2022, USCIS will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021.
· Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
USCIS will reject Premium Processing requests for these classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a Premium Processing request at this time.
On May 23, 2022, USCIS published a new version of Form I-907, dated 05/31/22. For the month of June, USCIS will accept both the 09/30/20 and the 05/31/22 editions of Form I-907. Starting July 1, USCIS will reject the older 09/30/20 edition of Form I-907.
Source: USCIS Newsroom, May 24, 2022: https://www.uscis.gov/newsroom/alerts/uscis-to-implement-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form-i-140
National Visa Center Suspends Public Inquiry Telephone Line
Beginning May 23, the National Visa Center (NVC) suspended its public inquiry telephone line. The NVC continues to accept immigrant visa inquiries through its online Public Inquiry Form (https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html) if the answer to a question cannot be found on the websites of the NVC or the Consular Electronic Application Center (CEAC: https://ceac.state.gov/ceac/).
The Department of State (DOS) has stated that the suspension of the public inquiry line will not affect the NVC’s essential functions.
In the case of an emergency, the best way to reach NVC about scheduling an appointment is at NVCexpedite@state.gov. When reaching out to this email address, make sure to include relevant case information and to clearly document the reason for the expedite request. The NVC has noted in the past that using the Public Inquiry Form to submit an expedite request will likely delay the process.
Source: American Immigration Lawyers Association (AILA) Doc. No. 22052431
USCIS Announces New EAD Automatic Extension Calculator
On May 4, 2022, DHS published a temporary final rule (87 FR 26614) amending 8 CFR 274a.13(d). The temporary final rule increases the employment authorization and/or Employment Authorization Document (EAD) automatic extension for certain renewal applicants from up to 180 days to up to 540 days. In order to assist employers and employees with determining the EAD expiration date for eligible employees, USCIS has created the new EAD Automatic Extension Calculator! This calculator will seamlessly calculate the new EAD expiration date for eligible employees.
Here is the link to the calculator:
Source: USCIS, May 20, 2022: https://www.uscis.gov/i-9-central/form-i-9-related-news/employment-authorization-document-ead-automatic-extension-calculator
Update on Employment Authorization for Certain E and L Nonimmigrant Spouses
As of January 30, 2022, USCIS and Customs and Border Protection (CBP) began issuing Form I-94, Arrival-Departure records, with new classes of admission (COA) codes for certain E and L nonimmigrant dependent spouses who are employment authorized based on their status. 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.
UPDATE: USCIS mailed notices in early April 2022, to E and L spouses (age 21 or over) who have an unexpired Form I-94 that USCIS issued before Jan. 30, 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 satisfy Form I-9, List C, #7.
Employees who are an E or L spouse, employment authorized based on their status and under 21, or did not receive the notice by April 30 can email E-L-married-U21@uscis.dhs.gov to request a notice. Individuals who received their Form I-94 at the time of their entry into the United States should visit https://i94.cbp.dhs.gov/I94/#/home. Not all spouses of principal E nonimmigrants are considered employment authorized incident to status.
Source: USCIS, May 10, 2022: UPDATE: Documentation of Employment Authorization for Certain E and L Nonimmigrant Dependent Spouses | USCIS
USCIS: Case Processing Info Changes Announced
U.S. Citizenship and Immigration Services (USCIS) announced changes to case processing information available online. Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types. Additional changes include:
· Adding drop-down options for form categories to help narrow results to the processing times that are relevant to a case;
· Adding a case inquiry tool where the user can insert their receipt date and get an immediate answer on whether they should contact USCIS with questions about their particular case; if so, benefit requestors will be provided a link to submit a case inquiry online;
· Displaying a single 80th-percentile processing time (rather than a range) to simplify the information provided and improve the ability of users to estimate how long it is likely to take USCIS to process a benefit request; and
· Revising, streamlining, and adding more content to the processing times webpages, including a new FAQ page.
Sources: ABIL Newsletter, May 8, 2022, and https://www.uscis.gov/newsroom/news-releases/uscis-simplifying-improving-communication-of-case-processing-data
Customs and Border Protection (CBP) Urges Travelers to Apply for I-94 Online Before Arriving at US Land Borders
To reduce wait times, U.S. Customs and Border Protection (CBP) is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.
An I-94 is needed by all visitors except U.S. citizens, returning residents, those with immigrant visas, and most Canadian citizens visiting or in transit. Travelers are issued an I-94 during the admission process at the port of entry.
Sources: ABIL Newsletter, May 8, 2022, and https://bit.ly/3w9aMZX
USCIS Increases Automatic Extension Period of Work Permits for Certain Applicants
U.S. Citizenship and Immigration Services (USCIS) announced a Temporary Final Rule (TFR) that increases the automatic extension period for employment authorization and Employment Authorization Documents (EADs), available to certain EAD renewal applicants, to up to 540 days. The increase, which will be effective immediately on May 4, 2022, will help avoid gaps in employment for noncitizens with pending EAD renewal applications and stabilize the continuity of operations for U.S. employers.
“As USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient,” said USCIS Director Ur M. Jaddou. “This temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers.”
For several years, USCIS has been in a precarious financial situation that has impaired the efficient completion of caseloads. The COVID-19 pandemic exacerbated these challenges in 2020, in addition to a hiring freeze and furlough threat leading to workforce attrition and severely reduced capacity. In 2021, before USCIS could recover from these fiscal and operational impacts, there was a sudden and dramatic increase in EAD initial and renewal filings, as explained in detail in the TFR. The TFR, which only applies to those EAD categories currently eligible for an automatic up to 180-day extension, will temporarily provide up to 360 days of additional automatic extension time (for a total of up to 540 days) to eligible applicants with a timely-filed Form I-765 renewal application pending during the 18-month period after publication of the TFR while USCIS continues to work through pending caseloads that were exacerbated by the COVID-19 pandemic. This timeframe will allow USCIS an opportunity to address staffing shortages, implement additional efficiencies, and meet Director Jaddou’s recently announced goal of achieving a three-month cycle time for EAD applications (generally comparable to a median three-month processing time) by the end of FY23. Beginning Oct. 27, 2023, automatic extensions of employment authorization and EAD validity will revert to the up to 180-day period for those eligible applicants who timely file Form I-765 renewal applications.
Noncitizens with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity, beginning on May 4, 2022 and lasting up to 540 days from the expiration date of their EAD, such that they may resume employment if they are still within the up to 540-day automatic extension period and are otherwise eligible. Noncitizens with a pending renewal application still covered under the 180-day automatic extension will be granted an additional up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD. Noncitizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before Oct. 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.
The automatic extension generally will end upon notification of a final decision on the renewal application or the end of the up to 540-day period (meaning, up to 540 days after the expiration date on the applicant’s facially expired EAD), whichever comes earlier. Certain noncitizens who are in the United States may file a Form I-765, Application for Employment Authorization, with USCIS to request employment authorization and an EAD. Other noncitizens whose immigration status authorizes them to work in the United States without restrictions may also use Form I-765 to apply for an EAD that shows such authorization.
Source: USCIS Newsroom, press release: May 3, 2022: https://www.uscis.gov/newsroom/news-releases/uscis-increases-automatic-extension-period-of-work-permits-for-certain-applicants
Immigrations and Customer Enforcement Extends I-9 Flexibilities
On April 25, 2022, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 flexibilities until October 31, 2022. The extension relates to deferral of the physical presence requirements of the employment eligibility verification process for certain employees, first announced on March 20, 2020, and updated periodically.
The requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in person applies only to those employees “who physically report to work at a company location on any regular, consistent, or predictable basis,” ICE said. Employees working exclusively remotely who were hired on or after April 1, 2021, are temporarily exempt from the physical inspection requirements.
Sources: ABIL Newsletter, May 1, 2022, and https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3