U.S. Immigration Updates - July 2022: Monthly Review

Fakhoury Global Immigration

This writing will provide an update of U.S. immigration developments for the month of July 2022 and the potential impact on U.S. employers and foreign nationals.

USCIS Extends COVID-19 Related Flexibilities Through October 23, 2022

U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and Oct. 23, 2022, inclusive:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional centers;
  • Notices of Intent to Withdraw Temporary Protected Status; and
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

  • The form was filed up to 90 calendar days from the issuance of a decision that USCIS made; and
  • USCIS made that decision between Nov. 1, 2021, and Oct. 23, 2022, inclusive.

In an effort to take the lessons learned from USCIS's pandemic posture, the agency has been evaluating which flexibilities can and should be extended permanently. As a result of this evaluation, the reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022.

SOURCE: USCIS Newsroom, July 25, 2022, and https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities#:~:text=U.S.%20Citizenship%20and%20Immigration%20Services,applicants%2C%20petitioners%2C%20and%20requestors.

Bipartisan Bill Would Lift Per-Country Visa Caps

Senators from North Dakota and Colorado introduced a bill aimed at allowing more people to enter the U.S. through employment-based visas, saying that U.S. employers should be able to hire workers based on merit rather than birthplace.

Sens. Kevin Cramer, R-N.D., and John Hickenlooper, D-Colo., said in a joint statement that the Equal Access to Green Cards for Legal Employment Act of 2022, or the EAGLE Act, would effectively create a skills-based immigration system that would ease workforce challenges and relieve immigration backlogs by phasing out the country's 7% cap on employment-based visas over a nine-year period.

Currently, foreign countries are each allowed to receive only up to 7% of the 140,000 total employment-based visas the U.S. gives per year - a number set out in the Immigration and Nationality Act.

The senators said that while the visas seemingly start off as being merit-based, given that employing sponsors are required to show a need for foreign workers, visas are ultimately distributed based on the immigrants' place of birth.

Nearly 67,000 employment-based immigrant visas went unused in the last fiscal year, despite countries having qualified applicants, the senators said. Furthermore, roughly 95% of immigrants who are in the U.S. on temporary employment-based visas are still waiting for permanent work visas, they said.

The senators said many of these immigrants on temporary work visas wait years and even decades to get their permanent visas due to entry caps on their home countries.

The EAGLE Act also allows individuals who have been stuck in the immigrant visa backlog for two years to file for a green card application, but they would still have to wait until their visa becomes available, the senators said.

SOURCE: Rae Ann Varona, Law360.com, July 21, 2022: https://www.law360.com/immigration/articles/1513878/sens-introduce-bipartisan-bill-to-lift-per-country-visa-caps?copied=1

USCIS Reminds Employers That They Only Accept Unexpired I-9 List B Documents

U.S. Citizenship and Immigration Services (USCIS) reminded employers that the Department of Homeland Security (DHS) ended the temporary flexibility related to accepting expired List B documents for Form I-9 employment eligibility verification purposes. DHS explained that it adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, but document-issuing authorities have reopened and/or provided alternatives to in-person renewals. If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must update their I-9 forms by July 31, 2022.

SOURCE: ABIL Immigration Insider, July 25, 2022, and https://www.uscis.gov/i-9-central/form-i-9-related-news/reminder-dhs-ended-covid-19-temporary-policy-for-expired-list-b-identity-documents

USCIS Provides Updated Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) updated its guidance on evidence that can be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields.

USCIS clarified that "being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field. This evidence is added to the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability in the STEM fields."

SOURCE: ABIL Immigration Insider, July 25, 2022, and USCIS alert, July 22, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-o-1-petitions-with-a-focus-on-stem-fields

USCIS To Implement Second Phase of EB-1 and EB-2 Premium Processing

On July 15, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the second phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Similar to the first phase of the expansion, this phase only applies to certain 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, Request for Premium Processing Service.

Beginning August 1, 2022, USCIS will accept Form I-907 requests for:

  • E13 multinational executive and manager petitions received on or before July 1, 2021; and
  • E21 NIW petitions received on or before August 1, 2021.

USCIS will reject premium processing requests for these Form I-140 classifications if the receipt date is after the dates listed above. USCIS has 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications. The agency said it will not accept new (initial) Forms I-140 with a premium processing request now.

On May 24, 2022, USCIS published a new version of Form I-907, dated 05/31/22. As of July 1, the agency is no longer accepting the older 09/30/20 edition of Form I-907.

SOURCE: ABIL Immigration Insider, July 17, 2022 and https://www.uscis.gov/newsroom/alerts/uscis-to-implement-second-phase-of-premium-processing-for-certain-previously-filed-eb-1-and-eb-2

Social Security Administration To Resume Normal E-Verify Timeframes

E-Verify announced that starting July 15, 2022, employees whose E-Verify cases are referred to the Social Security Administration (SSA) will have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

At the onset of the COVID-19 pandemic in March 2020, E-Verify extended the timeframe for an employee to take action to resolve a Tentative Nonconfirmation (mismatch). For E-Verify cases referred on or after July 15, 2022, E-Verify will no longer provide extended timeframes for employees to visit SSA to resolve these mismatches. However, E-Verify cases referred between March 2, 2020, to July 14, 2022, with an SSA mismatch will still have an extended timeframe to be resolved, E-Verify said.

SOURCE: E-Verify announcement, July 5, 2022, https://bit.ly/3Rj1HHI

U.S. House: STEM Immigration Proposal Fails

Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives' Rules Committee to consider as additions to the annual National Defense Authorization Act (H.R. 7900):

  • A measure to streamline the path to a green card for immigrants with doctorates in science, technology, engineering, and mathematics (STEM) fields failed as the Rules Committee deemed it "out of order" for consideration as an amendment to the defense bill. According to reports, other efforts to find a way to advance it also stalled in negotiations.
  • However, a proposal to admit experts in science and technology for national security-related reasons will receive a vote on the House floor. The proposal appears to be limited to 10 experts per year to be selected by the Department of Defense.
  • Also advancing to the House floor is a measure to ensure that "documented Dreamers," who are dependents of foreign workers or applicants for permanent residence (green cards), will not age out of legal status when they turn 21.
  • Another amendment that advanced would exempt Afghan students from having to show nonimmigrant intent when they apply for student visas to the United States.

SOURCE: ABIL Immigration Insider, July 17, 2022, and "Immigration Measure for STEM Workers Adrift After Defense Flop," Bloomberg Law, July 13, 2022, https://bit.ly/3PddJAR

DHS Issues Final Rule Changing NAFTA to USMCA

The Department of Homeland Security (DHS) issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement (NAFTA) with references to the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA).

The USMCA superseded NAFTA and its related provisions on July 1, 2020. Chapter 16 of the USMCA "generally maintains the same treatment as provided under NAFTA with respect to the temporary entry of Canadian and Mexican citizen business persons," DHS said. The final rule "makes other minor, non-substantive conforming amendments and stylistic changes and corrects typographical errors."

SOURCE: U.S. Customs and Border Protection, Final Rule, 87 Fed. Reg. 41027 (July 11, 2022), https://www.govinfo.gov/content/pkg/FR-2022-07-11/pdf/2022-14728.pdf

USCIS Asks Applicants for Employment-Based Adjustments to

Promptly Send Medical Forms When Requested

To ensure that U.S. Citizenship and Immigration Services (USCIS) is able to use as many available visas as possible for fiscal year 2022, the agency is urging anyone within the United States who may be eligible for an employment-based adjustment of status to note the following regarding Form I-693, Report of Medical Examination and Vaccination Record:

  • If you are planning to file an adjustment of status application, be sure to include a valid Form I-693.
  • If you have a pending Form I-485, Adjustment of Status Application, do not send an unsolicited Form I-693 to USCIS. USCIS said it is proactively identifying employment-based adjustment of status applications with available visas that lack a valid Form I-693 and is directly contacting applicants to request that form.
  • If you know that your previously filed Form I-485 does not have a valid Form I-693, your underlying petition is approved, and a visa is available to you, it will help USCIS use the available visas and adjudicate your application if you visit a civil surgeon and have a valid Form I-693 on hand when USCIS sends the request to you.
  • A Form I-693 is valid for two years from the date on which the civil surgeon signs the form.
  • USCIS issued the information above via an emailed public engagement notice and made a brief related announcement on Twitter.

SOURCE: ABIL Immigration Insider, July 3, 2022, and USCIS: https://bit.ly/3ujUxcn

Customs and Border Protection Ends Use of Expired U.S. Passports for Direct Return of U.S. Citizens to United States

As of July 1, 2022, U.S. citizens can no longer use their expired U.S. passports to return to the United States. U.S. citizens overseas with expired passports should contact their nearest U.S. embassy or consulate to apply for a passport.

SOURCE: https://help.cbp.gov/s/article/Article1861?language=en_US

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