USCIS Proposes Sweeping Processing Changes and EB-2 Jumps One Year for India

USCIS Proposes Initiatives to Reduce Critical Backlog

U.S. Citizenship and Immigration Services (“USCIS”), a division of the Department of Homeland Security (“DHS”), announced three major proposals on March 29, 2022, that should greatly reduce the current immigration processing backlog. The first proposal involves ambitious goals for regular processing cycles and the third is a general statement of improving access to employment authorization documents, but the second proposal regarding expanded Premium Processing has the ability to work a sea change in the speed in which many visa categories are currently processed.

Expanded Premium Processing

Currently, Premium Processing is available only for employers filing Form I-129, Petition for a Nonimmigrant Worker (most commonly for H-1B, L-1, O-1, or TN classifications), and Form I-140, Immigrant Petition for Alien Workers (although not all categories of employment-based immigrant visas – such as the EB-1C and the EB-2 National Interest Waiver (“NIW”) – have previously been eligible). The new rule will expand Premium Processing services to include two forms that have been causing immigration headaches in recent years: the Form I-539, Application to Extend/Change Nonimmigrant Status and the Form I-765, Application for Employment Authorization. It will also open up additional immigrant visa classifications filed using the Form I-140, including the EB-1C for multinational executives/managers and the EB-2 for extraordinary individuals under the NIW.

The rule is intended to implement the Emergency Stopgap USCIS Stabilization Act passed by Congress and is part of USCIS’ efforts to reduce existing backlogs and provide needed relief to Employment Authorization Document (“EAD”) cardholders. The Form I-765 was once reliably adjudicated within 180 days of filing, but Covid-19 backlog has pushed processing times to a year or more, creating pervasive gaps in work authorization for foreign nationals. USCIS attempted to ease the burden of these long delays by adding automatic extensions for E, L, and H-4 spouses in November 2021. However, these extensions were limited to 180 days from the expiration of the EAD or the end date of the I-94 approved period of stay. Since the Form I-765 was frequently filed concurrently with the Form I-539 seeking an extension of stay (which has processing times even slower than the Form I-765), the automatic extension was rendered mostly useless. As mentioned above, now the Form I-539 will be added to the Premium Processing list, which will give practical effect to the automatic extension provisions as the Form I-539 will be allowed to be expedited before the expiration of the Form I-765 with predictability. Moreover, if the 180-day extension is still not enough time, the foreign national will also have the ability to speed up the Form I-765 using Premium Processing as well. The two changes together assure that gaps in employment authorization for E, L and H-4 spouses should now be a thing of the past.

While the rule will become effective on May 31, 2022, it will be implemented in a phased approach over a three-year period. For fiscal year 2022, USCIS plans to begin implementing Premium Processing for Form I-539 Application to Extend/Change Nonimmigrant Status, Form I-765 Application for Employment Authorization, and certain Form I-140 classifications (EB-1C classification as a multinational executive or manager, and EB-2 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver). We will continue to monitor the situation as it progresses.

USCIS Completes the Initial Lottery Selection Process for FY2023 H-1B Cap

On March 29, 2022, USCIS confirmed that the initial electronic registration selection process had been completed. While it is yet unclear how many registrations were filed, USCIS has sent selection notices to at least 85,000 registrants. Employers and their attorneys will need to log on to the myUSCIS registration portal in order to learn the status of each registration. Online accounts are now showing one of four statuses:

  1. Submitted: The registration was properly submitted and is still eligible for selection. There may be additional drawings later this year, as there were last year (see discussion below).
  2. Selected: The registration was properly submitted and selected to file an H-1B cap petition.
  3. Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary, and all have been denied for violating the rule prohibiting multiple registrations.
  4. Invalidated-Failed Payment: A registration was submitted but the payment method was declined, rejected, disputed or cancelled after submission.

For those individuals who did not get selected, it bears mentioning that last year USCIS ran a second lottery of an additional 27,717 registration on July 29, 2021, and a third lottery of 16,753 registrations on November 19, 2021. Thus, there is still hope for those who were not in the initial selection round, but employers will want to closely monitor employment authorization expiration dates and have backup plans ready to be initiated.

The EB-2 India Category Makes a Giant Leap in April 2022

Indian nationals should check their priority dates because the April 2022 visa bulletin took a sizeable jump forward for individuals holding EB-2 Form I-140 approval notices. Final Action Dates for India EB-2 only went from May 1, 2013, to July 8, 2013, but the Dates of Filing went from September 1, 2013, to September 1, 2014. This full year leap forward is giving many EB-2 individuals an opportunity to file much sooner than predicted and should go a long way to filling all the unused immigrant visas in fiscal year 2022.

The rest of the April 2022 visa bulletin is as follows:

To be eligible to file an employment-based adjustment application in April, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country.

USCIS has again chosen the Dates for Filing chart for employment-based applications.

Employment-Based, First Preference (EB-1) Category

The category remains current for all countries of chargeability.

Employment-Based, Second Preference (EB-2) Category

The EB-2 category remains current for all countries of chargeability except India and China. EB-2 China advances to April 1, 2019. EB-2 India advances to September 1, 2014.

Employment-Based, Third Preference (EB-3) Category

The EB-3 category remains current for all countries of chargeability except India and China. EB-3 China advances to April 1, 2018. EB-3 India remains stationary at January 22, 2012. India EB-2 now has a more favorable cutoff date than India EB-3 again. Workers may want to consider an EB-3 to EB-2 “upgrade” filing.

EB-3 Other Workers

With the exception of China, the cutoff dates for EB-3 Other Workers are the same as each country’s respective EB-3 cutoff dates. For China, the cutoff date for EB-3 Other Workers advances to August 1, 2015.

Employment-Based, Fourth Preference (EB-4) Category

EB-4 is current for all countries of chargeability except El Salvador, Guatemala, Honduras. For those countries, the cutoff date is June 1, 2017 (please note that this date is current on the April 2022 visa bulletin, but was listed incorrectly on the State Department and USCIS websites.

Employment-Based, Fifth Preference (EB-5) Category

The EB-5 Non-Regional Center category remains current for all countries of chargeability, and the Regional Center category remains current for all countries other than China (which has set a priority date of December 15, 2015). The Regional Center program was reauthorized in March, as discussed in the next section of this Alert.

President Biden Signs the EB-5 Reform and Integrity Act of 2022

On March 15, 2022, President Biden signed into law H.R. 2471, the “Consolidated Appropriations Act of 2022,” which included the “EB-5 Reform and Integrity Act of 2022” (“RIA”). The Regional Center program had expired on June 30, 2021, and was not renewed before it sunset in December 2021. The RIA reauthorizes and extends the Regional Center program until September 30, 2027, with the following significant changes:

  • The minimum investment amount for Targeted Employment Areas (“TEAs”) increased from $500,000 to $800,000.
  • The standard (e., non-TEA) minimum investment amount goes from $1,000,000 to $1,050, 000.
  • High unemployment TEAs will now be determined solely by USCIS (discontinuing the state letter option).
  • New visa set-asides have been created for certain types of projects, such as infrastructure, rural and high unemployment.
  • Regional Centers will now pay an annual “EB-5 Integrity Fund” fee to be used by USCIS to fund investigations and site visits of regional center operators, new commercial enterprises and job-creating entities.

The bill also includes additional technical and incremental changes that are beyond the scope of this post.

TN Processing Changes in Mexico

The U.S. Embassy and Consulates in Mexico have resumed limited processing of nonimmigrant visas (“NIVs”) and have reported changes to NIV processing at specific posts. TN appointments are now only available at the U.S. consulates in Mexico City, Guadalajara and Ciudad Juarez. Previously scheduled TN appointments in Tijuana will be honored, but expedite requests cannot be accommodated and new TN appointments cannot be made. The limitations on TN processing sites will create long-than-normal wait times, so employees should plan travel accordingly and consider processing TN extensions through the filing for the Form I-129 through USCIS. Please check the Department of State’s website for the most up-to-date information regarding visa processing changes in Mexico.

DHS Ending Covid-19 Flexibility for Expired List B Identity Documents on May 1st

During Covid-19, DHS adopted a temporary policy of allowing employers to accept expired identity documents during the Form I-9 employment authorization verification process due to multiple closures and delays at identification-issuing authorities. Now that these authorities are mostly open for business, DHS is ending this flexibility and employers need to be prepared.

On March 17, 2022, DHS announced that, starting May 1, 2022, employers must only accept unexpired List B documents. Moreover, if an employer accepted an expired List B document between May 1, 2020, and April 30, 2022, employers are required to update their Forms I-9 by July 31, 2022. There are two exceptions to this general rule on updating expired documents: (i) if the employee is no longer employed, no action is required, and (ii) if the expired List B documents had been auto extended by the issuing authority, no action is required because the document was technically unexpired when presented.

DHS Announces Afghanistan and Ukraine Eligible for Temporary Protected Status (“TPS”)

DHS announced the designation of Afghanistan and Ukraine for TPS for a period of 18 months. By way of background, DHS may designate a foreign country for TPS based on conditions in that country that would make it unsafe for individuals who are nationals of that country to return. This can involve conditions such as warfare or other armed conflicts, natural disasters, or similar extraordinary and temporary conditions. TPS allows nationals of that country who are physically present in the United States prior to the TPS designation date to apply for temporary status and to obtain an Employment Authorization Document (“EAD”).

Afghanistan

On March 16, 2022, DHS announced the designation of Afghanistan for TPS for 18 months. DHS has designated Afghanistan for TPS on the statutory bases of ongoing armed conflict and extraordinary and temporary conditions that prevent the country’s nationals from returning in safety. The conditions result from the Taliban seeking to impose control in all areas of the country and Islamic State-Khorasan (“IS-K”) conducting attacks against civilians.

Only Afghan nationals who are already residing in the United States as of March 15, 2022, will be eligible for TPS. Afghan nationals who were previously paroled into the United States on a humanitarian basis through Operation Allies Welcome will also be eligible for TPS. TPS applicants must meet all other requirements, including undergoing security and background checks.

Ukraine

On March 3, 2022, DHS announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. DHS has designated Ukraine on the bases of ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely. These conditions result from the full-scale Russian military invasion into Ukraine, which marks the largest conventional military action in Europe since World War II.

Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022, will not be eligible for TPS. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Afghanistan’s and Ukraine’s 18-month designations will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an EAD. DHS estimates that approximately 74,500 Afghans and approximately 75,100 Ukrainians may be eligible to apply for TPS. USCIS has noted that its current processing time for TPS applications is 180 days, but this estimate is subject to change given the recent expansion of TPS eligibility.