AILA RELEASES UPDATE ON THE DEPARTMENT OF STATE'S PROGRESS TOWARDS OVERCOMING DELAYS AND BACKLOGS DURING COVID19 PANDEMIC

The average number of immigrant visas issued per month is slowly climbing back to pre-pandemic levels. Within the last three years, the average number of immigrant visas has declined significantly- from roughly 40,000 per month in 2019 to 15,000 per month for the period of time between March 2020 and July 2021. The backlog in the number of immigrant visa cases pending the scheduling of an interview is also slowly decreasing. In June 2021, there were 500,000 cases stuck in the National Visa Center backlog. As of September 30, 2022 there are 380,000. To date, the overall visa backlog has been reduced by 24%, a reassuring start but far from the end goal. Similarly, the numbers of immigrant visas being issued is rising again and the State Department hopes to return to pre-covid outputs within the next year. To meet these goals, AILA recommends several policy changes and updates to combat this lag such as resuming stateside processing of visa renewals, expanding visa interview waiver eligibility, automatically extending visas that expired during COVID by 24 months, and working towards maximizing staffing on immigrant visa processing at consular posts.

D.C. COURT OF APPEALS UPHOLD LEGALITY OF OPTIONAL PRACTICAL TRAINING (OPT) AND STEM EXTENSION

Optional Practical Training, the process by which F-1 students who work directly in their area of study are granted 12 months of authorized employment, has been heavily litigated in the last decade. Earlier this week, the U.S. Court of Appeals for the D.C. circuit upheld the legality of the program. The STEM extension, a 24 month employment authorization extension given to F-1 students with a STEM degree and an initial grant of post-completion OPT employment authorization was also ruled lawful. Supporters of this program highlight the necessity of allowing F-1 students to work in their fields while studying and to stay in the country for postgraduate training and employment.

RECOMMENDATION SUBMITTED TO PRESIDENT BIDEN TO ALLOW H-1B VISA STAMPING IN THE US, SAVING THOUSANDS OF FOREIGN WORKERS THE RISK AND HASSLE OF TRAVELING BACK TO THEIR HOME COUNTRY FOR A VISA APPOINTMENT

A presidential advisory commission on Asian Americans and Pacific Islanders unanimously approved a recommendation to allow for the stamping of H-1B visas in the United States. If accepted by President Biden, this would be a welcome change, especially to the thousands of H-1B workers from India where the wait time to get a visa appointment hovers around 844 days. The recommendation by the advisory commission also requests that USCIS update its policy to provide guidelines for the stamping and extension of visas in the US.  

THE BOARD ANNOUNCES NO NEED TO INTERVIEW UNQUALIFIED APPLICANTS DURING THE PERM RECRUITMENT PROCESS

Recent case law has established that employers are not required to interview unqualified applicants during the PERM recruitment process. In the deciding case, the Board determined that the employer had provided a detailed enough analysis of the applicants' resumes to support the determination that they did not qualify for the position and rejected the certifying officer's suggestion that the applicants, who had significant experience, may have qualified based on a combination of education and experience. The Board dismissed this argument saying that “the Application clearly indicated that no such combination was acceptable.” This decision is very helpful guidance for employers engaged in the PERM process.

EB-5 REFORM AND INTEGRITY ACT OF 2022 SIGNED INTO LAW, AIMS TO INCREASE TRANSPARENCY BETWEEN REGIONAL CENTERS, EB-5 PARTICIPANTS AND USCIS

Changes to the requirements set on EB-5 investors and the regional centers that manage investment funds from EB-5 participants have been enacted pursuant to the EB-5 Reform and Integrity Act of 2022. Each regional center must now notify USCIS before making changes to its business structure or management team.  Regional centers are also required to submit annual financial reports to their investors as well as USCIS to ensure they are compliant with the United States Securities laws that govern EB-5 investments. The Act also includes provisions to protect investors against certain events that are outside of their control. For example, the Act gives investors the right to access detailed records of how their money is spent each year. It also protects investors whose regional centers or EB-5 projects are terminated or debarred by giving them 180 days to invest in other EB-5 projects or move the regional center with which their project is affiliated. The filing of form I-829, the final step in applying for an EB-5 investment green card, used to require that the investor already have created 10 required jobs. The USCIS reports that it will now accept applications from investors "actively in the process of creating" the jobs. The minimum capital investment threshold for EB-5 investors has increased from $500,000 to $800,000.

THE STATE DEPARTMENT HAS BEGUN ACCEPTING ONLINE REGISTRATIONS FOR FY 2024 DIVERSITY VISA LOTTERY

Every year, the Diversity Immigrant Visa Program offers 50,000 immigrant visas to individuals from countries with historically low rates of immigration to the United States. Nationals of countries that consistently see high rates of US immigration such as China, Brazil, India, Bangladesh and the United Kingdom may not apply. Selected applicants must have at least a high school education or two years of qualifying work experience within the past five years. The registration period will be open from October 5 to November 8, 2022.

CONSULAR OFFICES PUT VISA APPLICATIONS IN INDEFINITE LIMBO UNDER SECTION 211G OF THE IMMIGRATION AND NATIONALITY ACT DUE TO MISSING PAPERWORK OR OTHER FLAGS

Immigrant workers whose visa petitions survive the enormous government backlog are now facing additional wait time as the US State Department holds applications pending further review. Section 211G of the Immigration and Nationality Act allows for consular offices to put visas on hold for “administrative processing,” a catch-all term that leaves immigration lawyers and foreign workers in the dark about next steps and what exactly is holding up the application. There is no regulatory time limit on how long the State Department can hold a visa petition in the “administrative processing” phase which poses serious uncertainty and unease for limited duration visas such as H-1B and L-1 in which the validity period of the visa begins as soon as USCIS approves it.

USCIS REPORTS RECEIVING SUFFICIENT FILINGS TO REACH CONGRESSIONALLY MANDATED H2B CAP FOR FIRST HALF OF FY2023

The United States and Immigration Services announced this week that the H-2B cap has been met and that any subsequent H-2B visa petitions submitted after September 12, 2022 with an anticipated start date before April 1, 2023 will be rejected. This cap does not apply to current H-2B workers in the United States who are applying for an extension of status, change of employer, or change in terms and conditions of employment.

USCIS EXTENDS TEMPORARY WAIVER OF “60-DAY RULE” FOR REPORT OF MEDICAL EXAMINATION AND VACCINATION RECORD (FORM I-693)

Form I-693, Report of Medical Examination and Vaccination Record, requires that the civil surgeon's signature be dated no more than 60 days before the applicant files their immigration application. However, in response to Covid-19 related delays, a temporary waiver of this provision has been extended through March 31, 2023. This waiver applies to all Forms I-693 submitted with applications for underlying immigration benefits that have not yet been adjudicated, regardless of when the Form was filed or signed.

CONGRESS PASSES BILL FOR EMPLOYMENT-RELATED STUDY OF FOREIGN-CREDENTIALED IMMIGRANTS

On September 19, 2022, Congress passed the “Bridging the Gap for New Americans Act” which will require the Department of Labor to submit a study to Congress investigating the factors that affect employment opportunities for individuals with professional credentials not obtained in the United States. The study will include an analysis of the employment history of immigrants during the five-year period prior to the enactment of the bill, an assessment of any barriers that prevent applicable immigrants from using their foreign acquired occupational experience, an analysis of available public and private resources that can assist foreign-trained immigrants in obtaining skill-appropriate employment in the US and a policy recommendation for how to better enable these workers to obtain skill-appropriate employment in the US.

FOLLOW THE LINK TO OUR WEBSITE FOR A COMPREHENSIVE LIST OF COMPLIANCE TIPS FOR H-1B EMPLOYERS

The United States Department of Labor places several regulations on H-1B employers to ensure that they are meeting their obligations to the employee as well as complying with USCIS policies. In order to avoid any issues or an audit by the Wage and Hour Division of the Employment Standards Administration, employers should keep up to date with LCA requirements and pay close attention to compliance tips. To read more about Public Access File audits and what records should be kept in both the public and private domain, follow this link: https://www.greencardmaker.com/h-1b-employer-compliance-tips-for-lca-and-paf-audits https://www.greencardmaker.com/h-1b-employer-compliance-tips-for-lca-and-paf-audits