September 26th-30th Immigration News Updates
USCIS INCREASES GREEN CARD VALIDITY EXTENSION FOR RENEWAL APPLICANTS FROM 12 MONTHS TO 24 MONTHS
As of September 26, 2022, USCIS has increased the automatic extension granted to green card renewal applicants to 24 months, up from an automatic extension of 12 months under the prior policy. Moving forward, the USCIS will grant 24 months extension through a properly filed I-90 Receipt Notice. This receipt can be used for overseas travel as well as a proof of work authorization for I-9 purposes.
DHS EXTENDS AND REDESIGNATES BURMA (MYANMAR) FOR TEMPORARY PROTECTED STATUS
Temporary Protected Status (TPS) has been extended and redesignated for Burma (Myanmar) from November 26, 2022 through May 25, 2024. Current Burmese TPS recipients will be required to re-register by November 26, 2022. Those who received EADs that expire on November 25, 2022 will receive an automatic one-year extension valid through November 25, 2023. New TPS applicants will be able to register between September 27, 2022 and May 25, 2024 and will be eligible for EADs as well as travel permission.
DOL RELEASES SMALL CHANGE TO PERM REGULATION AND REQUIREMENTS
Going forward, employers hiring workers to work wholly or in part in New York City, Colorado, and Washington will need to provide good faith minimum and maximum salary ranges to comply with updated DOL PERM regulations.
LEGISLATION INTRODUCED WITH GOAL OF REDUCING USCIS BACKLOG AND PROCESSING TIMES
The President's Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders has submitted recommendations to the White House Domestic Policy Council aimed at reducing the adjudication and processing times of green cards, which can take years with current USCIS delays, to just six months, with the ambition goal of removing all backlogs by April 2023.
EAGLE ACT SUBMITTED TO THE SENATE AIMS TO MODIFY REQUIREMENTS FOR EMPLOYMENT-BASED VISAS AND MORE
In July, the “Equal Access to Green Cards for Legal Employment Act of 2022” or “EAGLE Act” was introduced in the Senate. The bill, if ratified, would allow certain immigrants to obtain lawful permanent resident status if they are in the United States as a nonimmigrant, have an approved immigrant visa petition, and have waited at least two years for a visa. The bill also amends transition rules for employment-based visas by reserving a percentage of EB-2 and EB-3 visas for individuals not from India or China and allotting a number of visas for professional nurses and physical therapists. Additional requirements would be placed on an employer seeking an H-1B visa recipient employee by prohibiting an employer from advertising that a position is only open to H-1B applicants or implying that H-1B applicants are preferred and restricting certain employers from having more than half of their employees as nonimmigrant visa workers. Lastly, the Act seeks to amend the INA by eliminating per-country numerical limitations for employment-based immigration applications and increasing the numerical limitation for family-sponsored immigrants.
US EMBASSY IN INDIA SAYS IT WILL INCREASE STAFF TO PRE-COVID LEVELS AND OPEN MORE INTERVIEW SLOTS FOR H AND L WORKER VISAS
The US Embassy in India has stated that it hopes to reach pre-covid levels of staffing by September 2023 in an effort to lessen wait time for interviews and provide more interview slots. Whereas staffing levels have hovered around 50-70% during the pandemic, foreign minister S Jaishankar has agreed to work with American authorities to cut the backlog in India and decrease the wait time for visa applicants. Don Heflin, the minister counsellor for consular affairs at the US embassy in New Delhi has stated that some 100,000 interview slots for H and L worker visas will be opened in the next few weeks.
DHS ISSUES NEW GUIDELINES ON “PUBLIC CHARGE” GROUND OF INADMISSIBILITY
Effective December 23, 2022, the Department of Homeland Security will no longer consider receipt of SNAP benefits or other Federal nutrition assistance benefits as “Public Charge” grounds for inadmissibility. Prior to this, receiving or applying for government assistance would be grounds for inadmissibility for an immigrant and could therefore prevent them from being issued a U.S. visa, granted admission to the United States, or allowed to adjust status.
USCIS RELEASES OCTOBER CHANGES TO “DATES OF FILING” AND “FINAL ACTION DATES” FOR EB-2 AND EB-3 APPLICANTS FROM INDIA
The cutoff date for Indian nationals filing adjustment of status applications under EB-2 category retrogresses by over two years to May 1, 2012. The date of filing for Indians on EB-3 visas advances to July 1, 2012. Final action dates for Indians on EB-2 retrogresses by two years and eight months to April 1, 2012. The date for EB-3 for India advances by more than six weeks to April 1, 2012.
AILA'S DOL LIAISON COMMITTEE RECEIVES REPORTS OF INCONSISTENT ADJUDICATION OF FORM ETA-9089, QUESTION H.10-B
Reports outlining inconsistent adjudications of Form ETA-9089, Application for Permanent Employment Certification, where an employer that is willing to accept experience in an alternate occupation completes Question H.10-B with “See H.14” but does not provide a specific job title for the acceptable alternate occupation in H.14. AILA members have reported summary denials as well as approvals on PERM applications where the responses to the question were drafted similarly, bringing cause for concern to employers who are gambling with ambiguity.
USCIS ISSUED POLICY GUIDANCE FOR EADS FOR CERTAIN H-4, E, AND L DEPENDENT SPOUSES
In November 2021, USCIS updated its interpretation and implementation of 8 CFR 274a.13(d) to provide that certain H-4, E, or L dependent spouses will indeed qualify for automatic extensions to their existing employment authorization documents. However, AILA has continued to receive reports that the Social Security Administration has refused to issue social security numbers to dependent spouses of these visa holders or grant employment authorization documents.
USCIS IS IMPLEMENTING A THIRD PHASE OF PREMIUM PROCESSING FOR CERTAIN PREVIOUSLY FILED EB-1 AND EB-2 FORM 1-140 PETITIONS
This third phase will only apply to previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907 for E13 petitions received on or before January 1, 2022 and E21 petitions received on or before February 1, 2022. USCIS will not accept premium processing requests for these Form I-140 classifications if the receipt date is after these dates. If premium processing is available, USCIS then has 45 days to take adjudicative action on that case. USCIS is not expanding premium processing to initial I-140 filings at this time.
Please sign up for our upcoming H-1B Audit Seminar if you have not already done so!
Back wages, Penalties Debarment originating from H-1B/LCA Violations
There are hundreds of cases in which the Administrative Law Judges (ALJ) have ordered the H-1B employers to pay hundreds of thousands of dollars for H-1B/LCA Violations. The DOL continues to aggressively prosecute employers that violate the laws on wage payments to H-1B workers. If you employ H-1B workers, it is critical that you are aware of – and religiously follow – the special wage payment rules applicable to H-1B employees to avoid any potential liability. Do make sure the H-1B workers are paid in accordance with the approved H-1B and underlying certified LCA and there is no unjustified benching or non-payment of salary or unauthorized salary deduction. In case of termination of H-1B employment, the employer must give a written termination notice along with an offer of return transportation ticket and send the H-1B withdrawal letter by certified mail to the USCIS.
We are here to assist you to conduct an internal audit of your H-1B/LCAs and set a compliance protocol to control future damages. In some cases, the ALJ has made the owners and corporate officers equally liable for the back wages and penalties by piercing the corporate veil.
Please sign up for our upcoming H-1B Audit Seminar if you have not already done so!