DHS Extends I-9 Compliance Flexibility

On April 25, 2022, the U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency announced an extension of compliance flexibility related to Form I-9 employment eligibility verification requirements until October 31, 2022.

USCIS Publishes FY 2023 H-1B Cap Registration Statistics

U.S. Citizenship and Immigration Services (USCIS) recently published fiscal year (FY) 2023 H-1B cap registration statistics, confirming that more than 48,000 prospective petitioners submitted 483,927 registrations—an approximate 57 percent increase over the number of registrations submitted in the FY 2022 filing season. USCIS selected 127,600 FY 2023 registrations in the initial lottery, representing roughly 26 percent of the total registrations.

USCIS Announces FY 2023 H-1B Selection Process Completion

On March 29, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it had completed the initial H-1B regular cap and master’s cap selection process for fiscal year (FY) 2023. Continuing its use of an electronic preregistration system to conduct the random selection lottery, USCIS confirmed that it has sent notifications to registrant employers and their representatives about selection results.

USCIS Updates Guidance on Employment Authorization for Certain E and L Nonimmigrant Spouses

On March 18, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it would update the USCIS Policy Manual to address acceptable evidence of work authorization for E and L nonimmigrant spouses. The updates, provided in response to the settlement agreement reached in the class action Shergill v. Mayorkas, also address Forms I-94 issued by USCIS prior to January 31, 2022.

Visa Processing Options for Ukrainian Nationals

On March 2, 2022, the U.S. Department of State added Ukraine to the Homeless Nationalities list. The Department of State defines a homeless visa applicant as someone who is “a national of a country in which the United States has no consular representation or in which the political or security situation is tenuous or uncertain enough that the limited consular staff is not authorized to process [immigrant visa] applications.”

DHS Grants Temporary Protected Status to Afghan Nationals

On March 16, 2022, the U.S. Department of Homeland Security (DHS) announced the designation of Temporary Protected Status (TPS) for Afghan nationals for eighteen months. Under the designation, TPS will apply to nationals of Afghanistan who have continuously resided in the United States since March 15, 2022. The TPS designation is based on the ongoing armed conflict by the Taliban and the “extraordinary and temporary conditions” in Afghanistan that prevent Afghan nationals from returning safely.

USCIS Takes New Steps to Transition to Electronic Processing

For nearly two decades, U.S. Citizenship and Immigration Services (USCIS) has signaled its intention to modernize with the creation of an electronic filing system (officially known as the Electronic Immigration System or ELIS). At its inception in 2005, ELIS was reported to be a $500 million dollar investment that would be completed and implemented by 2013. However, a recent report noted that ELIS is expected to cost upwards of $3.1 billion dollars, and all signs indicate that USCIS is far from implementing the system.

DHS Grants Temporary Protected Status for Ukrainian Nationals

The U.S. Department of Homeland Security (DHS) has announced the designation of Temporary Protected Status (TPS) for Ukrainian nationals for eighteen months. TPS status will apply to nationals of Ukraine who have continuously resided in the United States since March 1, 2022. According to DHS, this designation is based on “the extraordinary and temporary conditions” in Ukraine that “result from the full-scale Russian military invasion” that prevent Ukrainian nationals from returning safely.

DHS Updates COVID-19 Vaccination Guidelines for Travelers to the United States

On January 20, 2022, the U.S. Department of Homeland Security updated its travel advisory to require all foreign national travelers (except U.S. permanent residents) to present proof of COVID-19 vaccination when seeking entry to the United States via land ports of entry and ferry terminals. The new guidance expands upon already existing COVID-19 travel requirements and establishes similar COVID-19 vaccination requirements for non-U.S. travelers seeking entry to the United States by both air and land.

DOL: Fiscal Year 2022 H-2B Updates

The H-2B program is available to employers that can demonstrate a temporary need to supplement their staffs based on a one-time, seasonal, intermittent, or peak-load need basis. The program is generally used by employers with peak busy seasons, such as hotels, amusement parks, and landscapers. The last two years have shown an increase in demand from employers requesting one-time need due to an inability to hire temporary or full-time workers within the United States.

H-1B Cap Quickly Approaching for FY 2023

While H-1B cap efforts remain underway for fiscal year (FY) 2022, employers may want to push forward now with preparations for FY 2023 H-1B cap season. (According to U.S. Citizenship and Immigration Services (USCIS), the petition filing period for registrations that were selected on November 19, 2021, is currently open and will close on February 23, 2022.) Employers have one opportunity each year to see H-1B visa numbers for employees who will be first-time applicants.

L-2 EAD Renewals: Clarity For L-2 EADs After USCIS Settlement Agreement

On November 10, 2021, U.S. Citizenship and Immigration Services (USCIS) reached a settlement in the class action Shergill v. Mayorkas. As part of the settlement, USCIS agreed to update its policy relating to H-4 and L-2 spousal Employment Authorization Document (EAD) applications, and the settlement terms for H-4 and L-2 applicants have potential I-9 compliance implications for employers.

USCIS Will Open Annual H-1B Lottery Registration March 1, 2022

On January 28, 2022, U.S. Citizenship and Immigration Services (USCIS) announced the registration window for the fiscal year 2023 H-1B quota lottery will open March 1, 2022, at noon EST and will close March 18, 2022, at noon EST. During this period, employers (or their representatives) can electronically register each potential H-1B beneficiary through a myUSCIS online account. Registrants will be able to create new accounts starting February 21, 2022, at noon EST; however, registrants must wait until March 1, 2022, to enter beneficiary information and pay the $10 registration fee. Registrations for multiple beneficiaries can be submitted together.

DHS Expands STEM-Designated Degree Program List

F-1 nonimmigrant students who have U.S. degrees in certain programs in the fields of science, technology, engineering, or mathematics (STEM) are eligible to apply for a twenty-four-month extension of Optional Practical Training (OPT), in addition to the standard twelve months of OPT available to all F-1 nonimmigrant students.

Passports, Visas, and COVID-19 Tests, Oh My! CDC Imposes Stricter COVID-19 Testing Requirements for Travelers Entering the United States

The U.S. Centers for Disease Control and Prevention (CDC) issued an order on December 2, 2021, amending requirements related to a negative pre-departure COVID-19 test result or documentation of recovery from COVID-19 for all airline passengers arriving into the United States from any foreign country. The new order will require all travelers seeking to enter the United States, regardless of vaccination status, to show proof of a negative COVID-19 test taken no more than 1 day before travel to the United States.

Back to the Future: White House Restricts Travel to the United States From 8 Countries Due to New COVID-19 Variant

On November 26, 2021, President Joe Biden issued a presidential proclamation prohibiting travel into the United States for travelers who were physically present in eight countries in southern Africa (Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe), beginning on Monday, November 29, 2021. The restrictions, which prohibit travel from these eight African countries, come approximately three weeks after the White House relaxed prior location-based travel restrictions, moving to vaccination status-based travel restrictions on November 8, 2021.

USCIS Settlement Agreement Provides Some Relief to H-4 and L-2 Spouse EAD Renewal Applications

On November 10, 2021, U.S. Citizenship and Immigration Services (USCIS) settled the class action lawsuit Shergill v. Mayorkas. The settlement agreement will update USCIS policy related to certain H-4 and L-2 spousal Employment Authorization Document (EAD) applications. Notably, the settlement agreement provides for an automatic extension of employment authorization for H-4 spouses who have timely filed for a renewal of the EAD work card via Form I-765, Application for Employment Authorization, if given criteria are met.

White House Permits Air Travel Into the United States for Fully Vaccinated Nonimmigrant Travelers, Beginning November 8, 2021

On October 25, 2021, the White House issued a presidential proclamation revoking the following proclamations with country-specific COVID-19 travel restrictions: Proclamation 9984 (China); Proclamation 9992 (Iran); Proclamation 10143 (Brazil, Ireland, the Schengen Area, South Africa, and the United Kingdom); and Proclamation 10199 (India).

Visa Bulletin for October 2021 Shows Only Minor Advances for Employment-Based Visa Applications

On September 13, 2021, the U.S. Department of State issued the Visa Bulletin for October 2021, which showed minor advancement on priority for backlogged filings of employment-based (EB) immigrant visa (green card) beneficiaries. The Visa Bulletin for October 2021 had been eagerly anticipated, in part due to substantial advancements seen in October 2020 that had permitted thousands of employment-based foreign nationals to file Form I-485 applications for adjustment of status to permanent residence.

White House Announces Plan to Remove COVID-19–Related Travel Restrictions for Fully Vaccinated International Travelers

The White House announced on September 20, 2021, that beginning in “early November” 2021, the Biden administration would remove restrictions on international travelers who are seeking to fly to the United States, provided that they are fully vaccinated against COVID-19.