USCIS Selects Third Round of H-1B Registrations for FY 2022

From USCIS, 11/19/2021

USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

We recently determined that we needed to select additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. On Nov. 19, we selected from among previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on Nov. 19 will begin on Nov. 22, 2021, and close on Feb. 23, 2022. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

In July 2021, we conducted a second random selection from among properly submitted electronic registrations for the FY 2022 H-1B numerical allocations. The petition filing period based on registrations selected in July ended on Nov. 3, 2021.

We conducted an initial selection in March 2021. The initial filing period for those with selected registrations for FY 2022 was from April 1, 2021, through June 30, 2021. Per regulation, we take into account historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B numerical allocations for a given fiscal year. Only those petitioners with selected registrations for FY 2022 are eligible to file H-1B cap-subject petitions.

An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved. Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still submit evidence and establish eligibility for petition approval based on existing statutory and regulatory requirements.

For more information, visit the H-1B Cap Season page.

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USCIS Issues Policy Guidance on Automatic EAD Extensions for Dependent Spouse (H-4, E, L)

USCIS Issues Policy Guidance on Automatic EAD Extensions for Dependent Spouse (H-4, E, L)

USCIS reached a settlement agreement as a result of recent litigation (Shergill, et al. v. Mayorkas) targeting the delayed processing times for EAD applications and extensions. Previously USCIS prohibited H-4 spouses from benefiting from automatic employment authorization extensions while their EAD applications were pending. Following the settlement agreement, USCIS released new guidance allowing H-4 spouses automatic EAD extensions and clarifying that L and E spouses will now enjoy automatic work authorization incident to status. The L and E dependent spouses will no longer have to apply for employment authorization unless they prefer to have the document for identity verification and other related purposes.

While the new guidance is effective immediately, the settlement agreement notes a maximum 120-day timeline for implementing the changes. USCIS will continue to issue E and L dependent spouses EADs upon filing Form I-765. Individuals may want to continue filing I-765 since EADs are acceptable for I-9 purposes as List A documents, demonstrating employment authorization and identity.

Under the new guidance, what is acceptable evidence of work authorization for I-9 purposes?

  • A document combination to include:
    • an unexpired Form I-94 indicating nonimmigrant status (H-4, E, or L)
    • Form I-797C (receipt notice) showing a timely-filed EAD renewal application stating “class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and
    • The facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).

Note: DHS will modify Forms I-94 for L and E dependents to distinguish spouses from children. Only once those changes are made will the revised Form I-94 be acceptable as a List C document and EAD extensions will no longer be required for L and E dependent spouses. The evidence of employment authorization must have a notation indicating the individual is an E or L dependent spouse. Prior to that change taking place, L and E dependents should follow the same guidelines outlined above for EAD applicants.

My E or L EAD extension is still pending. Can I start working again?

    • E and L dependent spouses are employment authorized incident to status and therefore will no longer have to file Form I-765 once the I-94 has been updated, but may continue to file if they choose to receive an EAD.
    • However, the updated guidance states: “Therefore, until USCIS is able to issue alternative evidence of employment authorization for this group, they will likely continue to request an EAD through the Form I-765 process to meet Form I-9 requirements.”
    • To utilize the I-94 without an EAD as evidence of work authorization, the guidance from USCIS states that the I-94 must bear a notation indicating the individual is a qualifying E, or L spouse. CBP and USCIS could take up to 120 days to modify the I-94s.
    • Until that time, E and L spouses should follow the same guidelines as H spouses with EAD extensions pending.

My H-4 and H-4 EAD extension are still pending. Can I begin working again?

    • If the spouse filed an I-539 application to extend H-4 status concurrently with an EAD application, the H-4 spouse would only qualify for the auto-extension of the EAD if they have time remaining on their existing I-94.

CHALLA TIP: If the primary H-1B has already been approved and extended (perhaps after a premium upgrade), the H-4 dependent spouse can depart the country and then re-enter on the H-4 visa, using the H-1B approval notice to obtain an I-94 with longer validity. The individual would then be eligible for an automatic extension of up to 180 days or the earlier of the scenarios described below. Check out our Travel FAQs & New Guidance on COVID-19 Vaccination Requirements before planning your trip.

When will the automatic extensions be valid? 

  • Automatic extensions for H-4, E, or L dependent spouses will be applicable if they properly file an application to renew their EAD before the expiration date (if applicable) and they have an unexpired I-94 showing their valid status.
  • The automatic extension will continue until the earlier of:
    • The end date on the Form I-94 showing valid status
    • The approval or denial of the EAD renewal application, or
    • 180 days from the date of expiration of the previous EAD

Wondering if you qualify for an automatic extension? Email us at info@challalaw.com with your questions.

__________________________________________________________________________

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DHS Adds Countries to H-2A and H-2B Eligibility List

From DHS, 11/09/2021

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. The notice listing the eligible countries will be published in the Federal Register on Nov. 10, 2021.

For the next year, the secretary of homeland security, with the concurrence of the secretary of state, has decided to:

  • Add Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for  the H-2A program), Haiti, Mauritius, and Saint Lucia to the list of countries eligible to participate in the H-2A and H-2B programs; and
  • No longer designate Moldova as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program. However, Moldova’s eligibility for the H-2A program remains effective until Jan. 18, 2022.

DHS maintains its authority to add countries to the eligible countries lists at any time, and to decide not to redesignate any country at the end of the one-year period following the date of publication of a country’s last designation in the Federal Register, should DHS and DOS determine that a country fails to meet the requirements for continued designation. Examples of factors that could result in the exclusion of a country or the removal of a country from the list include fraud, abuse, denial rates, overstay rates, human trafficking concerns, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country that are contrary to U.S. interest.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS approves H-2A and H-2B petitions only for nationals of countries that the secretary of homeland security has designated as eligible to participate in the programs. However, USCIS may approve H-2A and H-2B petitions, including those that were pending as of the date of the Federal Register notice, for nationals of countries not on the list on a case-by-case basis only if doing so is determined to be in the interest of the United States.

Effective Nov. 10, nationals of the following countries are eligible to receive H-2A and H-2B visas:

Andorra Fiji Malta Saint Lucia
Argentina Finland Mauritius San Marino
Australia France Mexico Serbia
Austria Germany Moldova* Singapore
Barbados Greece Monaco Slovakia
Belgium Grenada Mongolia** Slovenia
Bosnia and Herzegovina Guatemala Montenegro Solomon Islands
Brazil Haiti Mozambique South Africa
Brunei Honduras Nauru South Korea
Bulgaria Hungary The Netherlands Spain
Canada Iceland New Zealand St. Vincent and the Grenadines
Chile Ireland Nicaragua Sweden
Colombia Israel North Macedonia Switzerland
Costa Rica Italy Norway Taiwan***
Croatia Jamaica Panama Thailand
Republic of Cyprus Japan Papua New Guinea Timor-Leste
Czech Republic Kiribati Paraguay* Turkey
Denmark Latvia Peru Tuvalu
Dominican Republic Liechtenstein Philippines** Ukraine
Ecuador Lithuania Poland United Kingdom
El Salvador Luxembourg Portugal Uruguay
Estonia Madagascar Romania Vanuatu

*Moldova and Paraguay are eligible to participate in the H-2A program but they are not eligible to participate in the H-2B program. Moldova’s eligibility for the H-2A program remains effective until Jan. 18, 2022.

**Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

***Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

This notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, this notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved prior to the date of publication of the Federal Register notice. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B. Each country’s designation is valid from Nov. 10, 2021, until Nov. 9, 2021.

For more information on these programs, see the H-2A Temporary Agricultural Workers and H-2B Temporary Non-Agricultural Workers pages on the USCIS website.

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Travel FAQs & New Guidance on COVID-19 Vaccination Requirements

DHS Releases Details on Easing Travel Restrictions & Travel FAQs

On Friday, DHS released new details for travelers who plan to enter the U.S. at land ports of entry and ferry terminals. Previously non-citizen travelers were permitted to enter for essential travel, but with the new requirements, non-essential travelers can enter the U.S. provided they are fully vaccinated and can provide proof of COVID-19 vaccination status. DHS also notes that unvaccinated travelers may continue to cross the border for essential travel, including lawful trade, emergency response, and public health purposes.

DHS states that “Starting November 8, when arriving at a U.S. land POE or ferry terminal, non-citizen travelers should be prepared to (1) provide proof of COVID-19 vaccination, as outlined on the Centers for Disease Control (CDC) website; and (2) verbally attest to their reason for travel and COVID-19 vaccination status during a border inspection.”

The requirements are consistent with the Proclamation issued on October 25, 2021, suspending and limiting entry for nonimmmigrants seeking to enter the U.S. by air travel who are not fully vaccinated against COVID-19. The Presidential Proclamation and CDC order do not apply to U.S. citizens, U.S. nationals, U.S. lawful permanent residents and immigrants. Certain air crew members may also be exempt.

Air and Land Travel FAQs

Who is considered fully vaccinated?

You are considered fully vaccinated:

  • 2 weeks (14 days) after your dose of an accepted single-dose COVID-19 vaccine.
  • 2 weeks (14 days) after your second dose of an accepted 2-dose series COVID-19 vaccine; or
  • 2 weeks (14 days) after you received the full series of an “active” (not placebo) COVID-19 vaccine in the U.S.-based AstraZeneca or Novavax COVID-19 vaccine trials
  • 2 weeks (14 days) after you received 2 doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart*

If you don’t meet these requirements, you are NOT considered fully vaccinated.

Example: If your last dose was given at any time on October 1st, you would be eligible to travel on October 15th or later to meet the 14-day requirement. If your flight departs on October 14th, you will be asked to reschedule after the full 14 days have passed.

What are considered acceptable COVID-19 vaccines?

CDC has not recommended the use of mix-and-match COVID-19 vaccine primary series. However, such strategies are increasingly common in many countries outside of the United States. Therefore, for the purpose of interpreting vaccination records for travel to the United States, CDC will accept combinations of accepted COVID-19 vaccines.

How can I prove that I have been vaccinated for COVID-19? 

The CDC has provided several options for proving your COVID-19 vaccination status: verifiable records, non-verifiable paper records, and non-verifiable digital records.

  • Verifiable records (digital or paper): could be a vaccination certificate with a QR code (which links to the information confirming the credential was generated from an immunization record in an official database and is protected from tampering) or a digital pass via a smartphone application with a QR code
  • Non-verifiable paper records: printout of COVID-19 vaccination record or vaccination certificate issued at a national or subnational level or by an authorized vaccine provider, such as the CDC vaccination card
  • Non-verifiable digital records: digital photos of vaccination card or records, downloaded vaccine record or certificate from official source (public health agency, government agency, or other authorized vaccine provider) or a mobile phone application without a QR code

All COVID-19 vaccination records must have:

  • Personal identifiers (at least full name and date of birth) that match the passenger’s passport or other travel documents,
  • Name of official source issuing the record (public health agency, government agency, or other authorized vaccine provider), and
  • Vaccine manufacturer and date(s) of vaccination.

Procedures for Travelers Who Qualify for Exceptions

Categories of noncitizen, nonimmigrants that meet the criteria for an exception under the proclamation and CDC’s order include:

  • Persons on diplomatic or official foreign government travel
  • Children under 18 years of age
  • Persons with documented medical contraindications to receiving a COVID-19 vaccine
    • Must show a letter from a licensed physician on official letterhead with contact information that clearly states the medical condition and the vaccine product
    • Example: immediate or severe allergic reaction after a previous dose or a component of a COVID-19 vaccine or known allergy to a component of the vaccine
    • Check with the airline to determine if a translation of the letter is necessary for their review
  • Participants in certain COVID-19 vaccine trials
  • Persons issued a humanitarian or emergency exception
    • Emergency medical evacuations or other situation where the individual is unable to access or complete the vaccination requirement before travel.
    • Contact the U.S. embassy or consulate in or nearest to the country from which they are departing for the United States. The embassy will transmit the information to the CDC for consideration.
    • You can contact the nearest U.S. embassy or consulate, or call these numbers at the U.S. Department of State headquarters: From the United States and Canada: 888-407-4747; from overseas: 202-501-4444
  • Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability
  • Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
  • Sea crew members traveling pursuant to a C-1 and D nonimmigrant visa
  • Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)

If you are a noncitizen, nonimmigrant who does not fall under any of these exceptions, you must show proof of being fully vaccinated before boarding a flight to the United States.

If you qualify for an exception, you must attest that you will test for COVID-19 within 3 to 5 days after your arrival in the U.S. unless you have documentation of recovery from COVID-19 from within the past 90 days. You must also self-quarantine for 7 days, even if your COVID-19 viral test is negative and you must self-isolate if the test is positive or if you develop COVID-19 symptoms.

Depending on the category of the exception, the CDC notes that if you plan to stay in the U.S. for longer than 60 days, you may also be required to attest that you will agree to be vaccinated against COVID-19 and you have arranged to become fully vaccinated within 60 days of your arrival or as soon thereafter as is medically appropriate. Children too young to be vaccinated will not attest to the vaccination requirement, but parents or another authorized person will have to attest on behalf of any passenger who is unable to sign their own attestation on the other requirements.

Please note: there are no exceptions under the Presidential Proclamation and CDC’s Order for religious reasons or other moral convictions.

Additional Travel Considerations

As non-essential travel resumes, DHS expects that travel volumes and wait times will increase at border crossings and other ports of entry.

  • Plan for long lines and increased wait times when scheduling travel.
  • Consider facial biometrics and the CBP mobile app to access CBP services.
  • Keep COVID-19 documentation and valid travel documents readily accessible for all members of your party.
  • Check that COVID-19 documentation is accurate and matches your passport and other travel documents.

If you have any additional questions, please contact us at info@challalaw.com.

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Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

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