Immigration News

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.

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. 

The U.S. Department of State confirmed that consular officers will continue to have the ability to waive the in-person interview requirement for certain nonimmigrant visa applicants. This policy applies to individuals who are applying for H-1, H-3, H-4, L, O, P, and Q visas who are applying for a visa in their country of nationality or residence. For this class of visa applicants, consular officers have the discretion to waive the interview requirement for individuals who were previously issued any type of visa. Consular officers also have the discretion to waive the interview requirement for those applying for H-1, H-2, H-4, L, O, P, and Q visas for the first time who are citizens of a Visa Waiver Program participating country if the individual has previously traveled to the United States under ESTA.  The U.S. Department of State has also extended the policies to waive visa interviews for H-2 visa applicants as well as certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants) through December 31, 2022.  Additionally, consular officers have the authority to waive the in-person interview requirement for visa applicants renewing a visa in the same visa category within 48 months of the prior visa’s expiration. The categories of visas eligible for an interview waiver as well as the eligibility requirements for each visa type vary. Please contact a CYA attorney for more information.

Today U.S. Immigration and Customs Enforcement (ICE) approved the continuation of an exception to its rules related to Form I-9 that was initially granted last year as a result of COVID-19. Specifically, if an employee hired on or after April 1, 2021 works exclusively in a remote setting due to COVID-19 related precautions, he/she is temporarily exempt from the physical inspection requirements associated with the Form I-9. This temporary exemption is in place until the employee undertakes non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Due to continued precautions related to COVID-19, this policy has been officially extended until April 30, 2022.

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.

The U.S. Department of Homeland Security announced on Monday that the Biden Administration will waive application fees for Afghan evacuees who are filing requests for U.S. work permits and permanent residency. Afghans brought to the U.S. after July 30^th under a humanitarian immigration process will qualify for this fee exemption. The Department of Homeland Security will also waive permanent residency application fees for Afghans who are applying for Special Immigrant Visas as a result of their service with the U.S. military. Since August approximately 70,000 Afghans have been relocated to the U.S. following the Taliban takeover of Afghanistan. For many Afghans who have been recently evacuated, these filing fee requirements are a significant and even prohibitive cost. The Biden Administration’s waiver of these filing fees will enable a greater number of deserving and eligible applicants to apply for authorization to work and become permanent residents of the United States.

On November 10, 2021, USCIS entered into a Settlement Agreement pursuant to a lawsuit (Shergill, et al. v. Mayorkas) that had been filed seeking relief for L-2 spouses and EAD eligible H-4 spouses suffering from long EAD adjudication delays. Below is a brief summary of the settlement:

L-2 Nonimmigrants (Spouses of L Nonimmigrants)

By March 10, 2022, USCIS will issue policy guidance stating that L-2 spouses are employment authorized incident to status.  Thus, L-2 spouses will no longer need to apply and be approved for work authorization to legally work in the U.S.  In the interim, USCIS will automatically extend work authorization for up to 180 days for L-2 spouses who have timely filed L-2/EAD  extension applications.

H-4 Nonimmigrants with Employment Authorization Documents (EADs)

Qualifying H-4 dependent spouses who a) properly file an application to renew their H-4 based EAD before it expires; b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant; and c) will continue to have H-4 status beyond the expiration date of their EAD will now benefit from the EAD Automatic Renewal provisions.  USCIS will interpret 8 CFR § 274a.13(d) such that these H-4 nonimmigrants who timely file their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD qualify for the 180 day automatic extension of their (c)(26)-based employment authorization and EADs.

On November 10, 2021, forty-nine  individual and organizational plaintiffs represented by the American Immigration Lawyers Association (AILA), Farshad Owji of Wolfsdorf Rosenthal LLP, Aaron Hall of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, filed a class action lawsuit against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS), in the U.S. District Court in Washington, DC. The litigation seeks to hold the Biden administration to account for the extreme processing delays on applications for employment authorization documents for noncitizens who are seeking Adjustment of Status (AOS) and E-2 nonimmigrant spouses.

On October 25, 2021, the White House released additional details regarding the COVID-19 vaccine requirements for international travelers.  

U.S. Citizen & Lawful Permanent Resident Travelers

Vaccinated	Must provide evidence of vaccination status & a negative COVID test within 3 days of travel
Unvaccinated	Must provide a negative COIVD test within 24 hours of travel

Non-immigrant Travelers

Vaccinated	Must provide evidence of vaccination status & a negative COVID test within 3 days of travel
Unvaccinated	Must provide a negative COIVD test within 24 hours of travel  & qualify for a vaccine exception listed below

Children

Under 18	Exempt from vaccine requirement but must provide negative COVID test (ages 2-17)
If traveling with a vaccinated adult	Must provide a negative COVID test within 3 days of travel
If traveling with unvaccinated adult	Must provide a negative COVID test within 24 hours of travel

Vaccine Exceptions:

• Children under 18
• COVID-19 clinical trial participants
• Those travel for emergency or humanitarian reasons (with a US government-issued letter affirming the urgent need to travel)
• Those traveling on non-tourist visas from countries with low-vaccine availability (as determined by the CDC)