Author: Lisa York

USCBP is urging travelers who require an I-94 to apply and prepay online before arriving at the land border. A Form I-94 is needed by all visitors except: U.S. citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit. Travelers will be issued an I-94 during the admission process at the port of entry. If you are traveling via a land border you may apply for an I-94 in advance at  https://i94.cbp.dhs.gov/I94/#/home , which will save a considerable amount of time while at the port of entry later.

CBP also provides the following tips to speed up the border crossings process:

1. Check out the CBP informational website (http://www.cbp.gov/). The CBP site has been completely redesigned to help users quickly access the content they need. It also is optimized for access by smart phones and makes use of a new content delivery network that will improve access internationally.

2. Beat the border rush Cross during off-peak times, such as before 6 a.m. or after 3 p.m. Most lines at the border start building in the morning and carry on into early afternoon. Monitor wait times via the CBP “Border Wait Times” website. Information is updated hourly and is useful in planning trips and identifying periods of light use/short waits.

3. Keep travel documents handy. Make sure each passenger has the correct travel document accessible and ready to give to the CBP officer. If you are a frequent international traveler and have not already become a member of a trusted traveler program, sign up now. For more information, please visit CBP’s Trusted Traveler Programs website.

4. Know the contents of your vehicles and be prepared to declare all items. Travelers are required to declare all items being imported into the United States from Canada. If you are not sure about what to declare, do not hesitate to ask the CBP officer.

5. Know what food products can be imported. Many fruits, meats, dairy and poultry products are prohibited from being imported into the United States from Canada. For more information, view prohibited and restricted items on the USCBP website.

6. Declare all firearms. Travelers are reminded that specific requirements must be met to import or export firearms and ammunition to/from the United States. For more information on the importation or exportation of firearms and ammunition visit the ATF website.

7. Leave marijuana at home.  Although marijuana is legal in many U.S. states and Canada, the sale, possession, production and distribution of marijuana all remain illegal under federal law.

The US Department of State (USDOS) has released the April 2022 Visa Bulletin.  For the month of April 2022, the priority date cutoff for the EB-2 India “dates for filing” category has advanced significantly.   USCIS has also indicated that for the month of April 2022, it will be accepting I-485 applications based on the “dates for filing” chart.  For a variety of reasons, more immigrant visas are available in the EB-2 category this fiscal year.  Thus, USCIS is predicting a record number of immigrant visa approvals in the EB-2 category between now and September 30, 2022.  In comparison, the EB-3 India category has retrogressed and is not expected to advance as quickly as the EB-2 category for the foreseeable future.  USCIS is encouraging those who are eligible, including those who filed EB-3 downgrade I-140 petitions with I-485 applications, to apply in the EB-2 category as soon as possible.   Per recent USCIS guidance, one can only transfer a pending EB-3 I-485 application to an approved/pending EB-2 I-140 petition if their priority date is current in the EB-2 India “final action” date category. Thus, for those with priority dates that are current under the EB-2 India “filing date” category, but are not current under the EB-2 India “final action” date category, the only option at this time is to file a 2^nd I-485 application based on the pending/approved EB-2 I-140 petition. Given the expected high demand in the EB-2 India category, it is likely that the EB-2 India category will retrogress significantly before September 30, 2022.  The benefit of proceeding with a 2^nd I-485 application is that going forward those who have filed I-485 applications in both categories will have maximized their chances of being approved for permanent residence as quickly as possible.  For more information on these options or to discuss your individual circumstances, please contact us to schedule a consultation appointment. 

While the processing of immigration applications was already severely delayed prior to the COVID pandemic, the problem has reached records levels since 2020.

Pre-COVID Processing Backlog:                   

USCIS:  5.7 Million Applications                   

DOS: 60,900 Interviews (wait for in-person interview)

Current Processing Backlog:

USCIS: 9.5 Million Applications

DOS: 532,000 Interviews (wait for in-person interview)

Processing Delays for Certain Petitions/Applications:   

• I-485 Green card, based on family petitions in Denver (17 months)
• I-90 Green card Renewal (15 months)
• I-129 Fiancé Visa (10 months) 
• I-130 Petition for Immediate Relative (10 months)
• I-751 Petition to Remove Conditions  (17.5 months)
• I-765 Work Authorization based on pending I-485 (15 months)
• I-765 Work Authorization based on approved DACA  (3 months)
• I-601A Waiver (27 months)
• I-131 Application for Advanced Parole (8 months)
• I-131 Application for Travel Document  (9 months)
• N-400 Application for Naturalization  (12 months)

These delays have resulted in unused green cards in family-based categories. These green cards were then made available to the employment-based categories but only 140,000 if the 226,000 unused green cards were used in the last fiscal year.  

Steps USCIS/DOS have taken to alleviate the backlog problem in Family-based petitions:  

• USCIS is using biometrics from previous appointments/applications
• USCIS increased staffing and overtime at Lockbox facilities 
• DOS will waive in-person interviews for green card applicants who were already issued visas but could not move to US due to COVID travel restrictions        
• USCIS extended work authorization from 1 to 2 years for refugees, asylees, and parolees
• USCIS reduced in-person interviews for refugees and asylees applying to sponsor spouses or children
• USCIS is conducting remote interviews for refugees and asylees

Unfortunately, without extreme policy changes and modernization of the immigration system by congress, the effect of processing delays due to COVID will likely impact all immigration applications for the next decade.

CYA is excited to share news of a positive change to immigration! On November 10, 2021, USCIS entered into a Settlement Agreement as a result of a lawsuit (Shergill, et al. v. Mayorkas) that was filed because of record-long delays in processing EADs (employment authorization documents). As a result of this settlement, USCIS is changing its policy to acknowledge that L-2, E-1, E-2 and E-3 spouses have employment authorization incident to their immigration status. Thus, these spouses will no longer need to apply and be approved for an EAD in order to legally work in the U.S. Woo hoo! This is a welcome change, and USCIS is in the process of implementing this change now.

At present, L-2, E-1, E-2 and E-3 spouses who are now entering the United States from abroad are being issued updated I-94s that make it clear that they are employment authorized. For L-2, E-1, E-2 and E-3 spouses who are already present in the United States, USCIS recently announced that on April 1, 2022 it will begin a process of mailing notices to these individuals. This USCIS notice along with an unexpired Form I-94 will prove employment authorization. For more information on this evolving change in USCIS policy please keep an eye on our CYA blog or reach out to your attorney for a consultation.

The statistics regarding this year’s cap lottery (FY2023) won’t be published for awhile, but USCIS recently shared the data on the FY2022 H-1B cap season. Take a look!

· 308,613: Number of initial registrations received by USCIS

·  87,500: Number of initial registrations selected by USCIS to file petitions

· 131,970: Total number of registrations selected by USCIS after conducting two additional selection rounds

·  37,000: Approximate number of prospective petitioners (employers) who submitted registrations for their beneficiaries (employees)

·  48%: Approximate percentage of registrations that requested consideration under the advanced degree exemption (master’s cap).

On March 30, 2022, USCIS published a final rule in the Federal Register that enables USCIS to designate additional types of petitions and applications for premium processing.  The final rule goes into effect on May 31, 2022. USCIS intends to phase in premium processing for these additional forms throughout the rest of FY 2022. USCIS will announce on its official website those requests for which premium processing of designated benefits is available, the dates when such availability commences or ends, and any conditions that may apply.  The final rule also establishes premium processing fees and timelines as follows:

• Form I–140 requesting EB–1 immigrant classification as a multinational executive or manager or EB–2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45 days;

• Form I–539 requesting a change of status to F–1, F–2, J–1, J–2, M–1, or M– 2 nonimmigrant status or a change of status to or extension of stay in E–1, E– 2, E–3, H–4, L–2, O–3, P–4, or R–2 nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and

• Form I–765 requesting employment authorization. Fee: $1,500. Timeframe: 30 days.

Please note that USCIS has not yet indicated when premium processing will be available for each of these form types; nor has USCIS yet determined which I-765 categories will be eligible for premium processing.  Stay tuned for additional information!

This year’s H-1B Cap Registration period closed on Friday, March 18, 2022 at 12pm ET.  On Tuesday, March 29, 2022, USCIS announced that it has received enough electronic registrations during the initial registration period to reach the FY2023 H-1B cap, including the advanced degree exemption. H-1B cap-subject petitions for FY2023 may be filed with USCIS starting April 1, 2022.

The FY2023 H-1B Cap season officially starts today!  USCIS online registration begins today at 10am MT.  The registration period goes through Friday, March 18, 2022 at 10am MT.  All those interested in trying for an H-1B cap visa this year will need to complete the registration process within this time period.  After the registration period closes, USCIS will run the “lottery” and electronically notify the “winners” by the end of March 2022.  Those who win the lottery (i.e. those who are “selected”) will then be able to file their H-1B petitions between April 1, 2022 and June 30, 2022, for an H-1B start date of October 1, 2022.  It remains to be seen if additional rounds of H-1B selections will occur throughout 2022 like they have for the past couple of years.  Each fiscal year there are roughly 65,000 H-1B Cap visas available with an additional 20,000 for foreign nationals who graduated from a U.S. institution of higher education with an advanced degree. 

USCIS has reported that for FY 2022, 308,613 H-1B registrations were submitted.  USCIS initially selected 87,500 registrations to reach the FY 2022 numerical allocations. On July 29, 2021, USCIS announced that the agency conducted a second selection of an additional 27,717 registrations. This resulted in a total of 115,217 selected registrations.  On Nov. 19, 2021, USCIS announced that it conducted a third round of selections that resulted in an additional 16,753 registrations. Thus, USCIS selected a total of 131,970 registrations for FY 2022.   

For more information about the FY2023 H-1B Registration Process visit the USCIS H-1B Electronic Registration Process webpage.

The Office of Foreign Labor Certification has completed the randomization process to randomly assign all H-2B applications submitted during the initial three-day filing window, January 1-3, 2022, requesting an April 1, 2022, work start date for the second half of the Fiscal Year 2022 H-2B statutory visa cap. OFLC received a total of 7,875 H-2B applications requesting 136,555 worker positions during this filing period. OFLC will be providing written notification to employers (and the employer’s authorized attorney or agent) with their H-2B Assignment Group. On January 7, 2022, OFLC also published on its website the list of the H-2B applications assigned to each Assignment. 

On December 9, 2021, USCIS announced that it will temporarily waive the requirement that the civil surgeon’s signature on USCIS medical exams (Form I-693) be dated no more than 60 days prior to filing the I-485 Adjustment of Status application.  

Currently, USCIS considers a completed Medical Exam (Form I-693) to retain its evidentiary value for 2 years after the date the civil surgeon signed, as long as the date of the civil surgeon’s signature is no more than 60 days before the applicant filed the application for the underlying immigration benefit. This is commonly referred to as the “60-day rule.” Due to the COVID-19 pandemic and related processing delays, USCIS has experienced delays in all aspects of operations. Applicants have also experienced difficulties beyond their control, including delays with completing the immigration medical examination. To address these issues, USCIS is temporarily waiving the requirement that the civil surgeon’s signature be dated no more than 60 days before the applicant files the application for the underlying immigration benefit.

This temporary waiver is effective from December 9, 2021 until September 30, 2022, and applies to all USCIS Medical Exams (Form I-693) associated with applications for underlying immigration benefits that have not been adjudicated, regardless of when the application was submitted or when the Form I-693 was signed.