General information

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.

Nearly six months after the Taliban seized power of Afghanistan after the withdraw of U.S. troops from the country, DHS announces Temporary Protected Status (TPS) for Afghan nationals. On March 16, 2022, Secretary Mayorkas announced TPS designation for Afghanistan for 18 months. TPS is meant to offer protection to Afghan nationals “who are already living in the United States from returning to unsafe conditions” caused by ongoing armed conflict and extraordinary and temporary conditions.

This designation is also meant to provide added protection to Afghans who have provided aid to U.S. military missions in Afghanistan.  

Additionally, TPS will be available to Afghan nationals who entered the U.S. after the mass exodus from the country and were admitted and paroled into the U.S. for humanitarian reasons. Eligibility will only be available to those who entered the U.S. on or before March 15, 2022. Once approved, applicants will be protected from removal and temporary work authorization. Application instructions will be outlined in the Federal Registrar.

Only one day remaining! The initial registration period (known as the lottery) for the FY2023 H-1B cap season is open, but not for long. The registration period will close at 12:00 noon (Eastern) on Friday, March 18, 2022. Once the registration has closed, USCIS will randomly select registrations from those submitted in the lottery. Registrations will be selected no later than March 31, 2022. The employer and attorney will then have at least 90 days, beginning on April 1, to file a fully prepared H-1B cap-subject petitions for the employee. Registrations not selected in the initial lottery will be put on a waitlist and more registrations may be randomly selected during the fiscal year.

Once the lottery has closed, a registrant’s USCIS online account will show one of the following statuses for each registration:
• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
• Selected: Selected to file an H-1B cap petition.
• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.

What to do if you win the lottery with a “selected” registration? For questions or assistance in filing your H-1B petition, schedule a consultation with one of the CYA attorneys today!

USCIS Secretary Mayorkas announced on Friday that the country of Ukraine has been designated for Temporary Protected Status (TPS).  TPS is an immigration benefit that allows citizens of a designated country who are already present in the United States to apply to remain temporarily in the United States due their inability to return to their home country as a result of dangerous conditions such as civil war or natural disaster.  Individuals eligible for TPS may also apply for employment authorization. In this designation, Ukrainians in the U.S. as of March 1, 2022 may apply to continue their stay for up to 18 months.

Secretary Mayorkas explained that “Russia’s premeditated and unprovoked attack on Ukraine has resulted in an ongoing war, senseless violence, and Ukrainians forced to seek refuge in other countries . . .  In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.” To learn more about TPS and the application process, please contact us for a consultation.

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.

Beginning Saturday January 22, 2022, the U.S. Department of Homeland Security will require all visitors seeking to enter the U.S. to be fully vaccinated for COVID-19 and provide proof of vaccination upon entry. This requirement applies to land borders and ferry terminals, and is not applicable to U.S. citizens, U.S. nationals, or lawful permanent residents of the United States. Proof of vaccination is already a requirement for air travel into the United States.

Non-U.S. individuals traveling to the United States via land ports of entry or ferry terminals, whether for essential or non-essential reasons, must:

• verbally attest to their COVID-19 vaccination status;
• provide proof of a CDC-approved COVID-19 vaccination, as outlined on the CDC website;
• present a valid Western Hemisphere Travel Initiative (WHTI)-compliant document, such as a valid passport, Trusted Traveler Program card, or Enhanced Tribal Card; and,
• be prepared to present any other relevant documents requested by a U.S. Customs and Border Protection (CBP) officer during a border inspection.

COVID-19 testing is not required for entry via a land port of entry or ferry terminal, however is a requirement for air travel. CYA reminds all travelers to up to date on the most recent international travel requirements and to avoid all non-essential international travel if possible.