Is Congress going to reauthorize EB-5 Regional Centers?

The authorization for the EB-5 Immigrant Investor Regional Center Program ended at midnight on June 30, 2021. This has left hundreds of EB-5 petitions that were submitted under the Regional Center Program pending, as USCIS decided not to act on these petitions until new legislation for Regional Centers was enacted. There was buzz towards the end of the 2021 about Regional Centers being reauthorized, but nothing came about.

Once again Challa Law has heard that there is a draft EB-5 Regional Center reauthorization bill floating around as part of the omnibus package for February 18, 2022. The buzz is that the minimum investment for targeted employment areas (TEA) will be upped from $500,000 to $700,000; Non-TEA minimum investment will be $850,000. If the new legislation is enacted, the program would be reauthorized through the year 2027; however, the changes will likely go into effect immediately.

For more information on the EB-5 Investment Program, email us at info@challalaw.com or check out our YouTube channel.

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USCIS Announces H-1B Cap Registration Period

USCIS Announces H-1B Cap Registration Period

USCIS announced that the H-1B cap registration period will open on March 1, 2022 and will close on March 18, 2022. USCIS will make the selections by March 31, 2022. Selected registrations may apply for the H-1B, which allows the beneficiary to begin working on October 1, 2022, the start of the new fiscal year.

Challa Law Group will continue to offer a tiered approach to registration. Read more about which option is right for your company: Planning for the H-1B Cap Registration System.

From USCIS (January 29, 2022): 

U.S. Citizenship and Immigration Services today announced that the initial registration period for the fiscal year 2023 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 18, 2022. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using our online H-1B registration system.

USCIS will assign a confirmation number to each registration submitted for the FY 2023 H-1B cap. This number is used solely to track registrations; you cannot use this number to track your case status in Case Status Online.

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to register each beneficiary electronically for the selection process and pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a “registrant” account. Registrants will be able to create new accounts beginning at noon Eastern on Feb. 21.

Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 to enter beneficiary information and submit the registration with the $10 fee. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit, and store draft registrations prior to final payment and submission of each registration.

If we receive enough registrations by March 18, we will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. We intend to notify account holders by March 31.

An H-1B cap-subject petition, including a petition for a beneficiary who is eligible for the advanced degree exemption, may only be filed by a petitioner whose registration for the beneficiary named in the H-1B petition was selected in the H-1B registration process.

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Send your resume to info@challalaw.com to determine whether you may be a good candidate for a waiver of the labor market test!

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DHS Expands STEM OPT Fields to Attract Global Talent

In order to maintain global competitiveness, the Department of Homeland Security has announced several policy guidance shifts to encourage those in science, technology, engineering, and mathematics (STEM) fields to contribute to the U.S. economy. DHS announced 22 additional fields of study that now qualify for the STEM Optional Practical Training (OPT) program going forward, which allows students to work in a field that is directly related to his or her degree. Related to that announcement, DHS also issued new guidance for how USCIS evaluates O-1A petitions for individuals of “extraordinary ability” in STEM fields, as well as how certain individuals may qualify for a National Interest Waiver (NIW) for employment-based permanent residence. This would allow certain noncitizens with advanced degrees or exceptional ability to petition for an employment-based category without obtaining certification from the Department of Labor. USCIS claims this will make it easier for individuals such as STEM graduates and entrepreneurs to obtain lawful permanent residence status.

From USCIS, 1/21/2022

DHS Expands Opportunities in U.S. for STEM Professionals: Department adds Twenty-Two New Fields of Study and Takes Additional Steps to Attract Critical STEM Talent

The Department of Homeland Security (DHS) today announced 22 new fields of study have been added to the STEM Optional Practical Training (OPT) program to enhance the contributions of nonimmigrant students studying in the fields of science, technology, engineering, and mathematics (STEM), and support the growth of the U.S. economy and innovation.

“STEM innovation allows us to solve the complex challenges we face today and make a difference in how we secure and protect our country,” said Secretary Mayorkas.  “Through STEM education and training opportunities, DHS is expanding the number and diversity of students who excel in STEM education and contribute to the U.S. economy.”

The STEM OPT program permits F-1 students earning bachelor’s, master’s, or doctoral degrees in certain STEM fields to remain in the United States for up to 36 months to work in their field of study.  Adding 22 fields of study will ensure the U.S. economy benefits from students earning degrees in the United States in competitive STEM fields.  Information on the new fields of study will be communicated to schools and students through a Federal Register notice.

DHS is also updating and issuing new U.S. Citizenship and Immigration Services (USCIS) policy manual guidance.  USCIS is updating guidance to clarify how certain STEM graduates and entrepreneurs can use the national interest waiver for employment-based immigrant visa classification as an advanced degree professional noncitizen or noncitizen of exceptional ability.

Certain noncitizens with an advanced degree or exceptional ability can self-petition for employment-based immigrant visa classification, without testing the labor market and obtaining certification from the Department of Labor, if USCIS determines the waiver of the labor market test to be in the national interest.  The updated guidance clarifies how to use the program, making it easier for noncitizens with needed skills, such as STEM graduates and entrepreneurs, to embark on a pathway to obtain lawful permanent resident status in the United States.

USCIS is also issuing a policy manual update related to O-1A nonimmigrant status for noncitizens of extraordinary ability in the fields of science, arts, education, business, or athletics.  This update explains how USCIS determines eligibility for O-1A petitioners and, for the first time, provides examples of evidence that might satisfy the criteria, including for individuals working in STEM fields.

The 22 new fields of study are bioenergy, general forestry, forest resources production and management, human-centered technology design, cloud computing, anthrozoology, climate science, earth systems science, economics and computer science, environmental geosciences, geobiology, geography and environmental studies, mathematical economics, mathematics and atmospheric and oceanic science, general data science, general data analytics, business analytics, data visualization, financial analytics, other data analytics, industrial and organizational psychology, and social sciences, research methodology, and quantitative methods.

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Send your resume to info@challalaw.com to determine whether you may be a good candidate for a waiver of the labor market test!

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USCIS Announces Green Card Goals and Interfiling Guidelines

USCIS Announces Green Card Goals and Interfiling Guidelines

USCIS updated the Green Card for Employment-Based Immigrants page with an alert about green card processing, noting the “exceptionally high number” of visas available and the Department’s goal for using all visa numbers prior to the start of the new fiscal year on October 1, 2022. On the same page, USCIS also noted updated guidelines for requesting a transfer of underlying basis, also commonly known as “interfiling” for Form I-485. USCIS notes the requirements for requesting a transfer of basis and establishes an address to where the requests should be directed.

From USCIS:

ALERT: There are an exceptionally high number of employment-based visas available this fiscal year (October 2021 through September 2022).

There are an exceptionally high number of employment-based visas available this fiscal year (October 2021 through September 2022). In partnership with the U.S. Department of State, we are committed to attempting to use all these visa numbers. There are many more visas available in the first (priority workers) and second (workers with advanced degrees or of exceptional ability) employment-based categories than pending adjustment of status applications pending with USCIS.

If you are eligible, please consider applying in the first or second employment-based preference categories. If you have a pending adjustment of status application based in the third employment-based preference category but also have a pending or approved petition and an available visa in the second employment-based preference category, we strongly encourage you to request that USCIS “transfer the underlying basis” of your pending application to the second employment-based preference category.

For more information, please see the section called “Transfer of Underlying Basis” below.

Transfer of Underlying Basis

You may be eligible to request to transfer the underlying basis of your Form I-485, Application to Register Permanent Residence or Adjust Status, to a different employment-based immigrant category based on another Form I-140, Immigrant Petition for Alien Workers. USCIS may, in its discretion, grant a transfer request, if:

  • You have continuously maintained eligibility for adjustment of status;
  • Your adjustment of status application based on the original Form I-140 is still pending;
  • You are eligible for the new immigrant category; and
  • You have a visa immediately available in the new immigrant category.

You must request in writing that USCIS transfer your pending Form I-485 from one basis to another category. For Fiscal Year 2022, USCIS has created a new point of contact that should be used to request a transfer of the underlying basis of employment-based Form I-485s. Through September 30, 2022, you may submit your written request, with a completed I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)(if required), to the following address:

U. S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350

USCIS strongly encourages applicants to send their transfer requests to the above address.  If you have already submitted a transfer of underlying basis request to a USCIS office, you should not submit a new request to this address. All requests to transfer the underlying basis already received or that will be received this fiscal year at a USCIS office will be processed as usual by the USCIS office with jurisdiction over your pending Form I-485.

The purpose of the Supplement J is to confirm the validity of the job offered to you in the petition you want to use as the basis for your transfer request.

  • If you are requesting to transfer your underlying basis to a previously filed and approved Form I-140, you must submit I-485 Supplement J with your transfer request.
  • If you are requesting to transfer your underlying basis to a Form I-140 that remains pending, you do not need to submit I-485 Supplement J.

USCIS does not provide a written response to transfer requests.  However, USCIS will issue receipt notices for the Supplement J.

You do not have to submit a new adjustment of status application or filing fee with a request to transfer the underlying basis of your Form I-485 from one petition to another. For more information on transferring the underlying basis of your Form I-485, see theUSCIS Policy Manual.

NOTE: If you are requesting a transfer of underlying basis that is not a transfer from one employment-based petition to another employment-based petition, you should continue to submit your transfer request, in writing, to the USCIS office with jurisdiction over your pending application.

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USCIS Temporarily Waiving 60-Day Signature Rule for Green Card Medicals

USCIS Temporarily Waiving 60-Day Signature Rule for Green Card Medicals

From USCIS

U.S. Citizenship and Immigration Services is temporarily waiving the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit (including Form I-485, Application to Register Permanent Residence or Adjust Status), until Sept. 30, 2022.

This temporary waiver will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes caused delays in completing the immigration medical examination. Temporarily allowing applicants to submit their underlying application for an immigration benefit with a completed Form I-693, even if the civil surgeon signed more than 60 days prior, will allow individuals to complete the application process without the need to undergo another immigration medical examination if Form I-693 is otherwise valid.

The temporary waiver will benefit many applicants, including Afghan nationals evacuated under Operation Allies Welcome who have completed immigration medical examinations at government-run facilities but were not able to apply for adjustment of status within 60 days of the completed examination.

For more information, see the policy alert (PDF, 318.16 KB). Visit the Policy Manual for Comment page to comment on this update.

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Interview Waiver Discretion Expanded by DOS: Additional Drop Box Appointments Available Soon

Interview Waiver Discretion Expanded by DOS: Additional Drop Box Appointments Available Soon

On December 23, 2021, the Department of State announced that consular officers would be able to waive the in-person interview requirements for certain nonimmigrant visa applicants with approved petitions with USCIS. This potential waiver applies to individuals applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions. The following conditions apply:

  • The individual must be applying for a visa in their country of nationality or residence.
  • They must have been previously issued any type of visa.
  • The individual must have never been refused a visa, unless the refusal was overcome or waived.
  • They must have no apparent ineligibility or potential ineligibility (criminal charges, citations, overstays, etc.)

First-time individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP) provided they have “no apparent ineligibility or potential ineligibility and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA)” may also be eligible for an interview waiver.

The Secretary of State also extended previous interview waiver policies for certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants). One change to the previous policy is that applicants eligible for the waiver authority because they are citizens or nationals of a VWP participating country must have previously traveled to the United States using an authorization obtained via ESTA to qualify.  Applicants must apply for a visa in their country of nationality or residence. 

The interview waiver of certain H-2 (A and B) applicants has also been extended through the end of 2022. Applicants renewing any visa within 48 months are eligible for an interview waiver. However, the Department of State notes that it is up to the consular officers’ discretion and applicants could still be required to attend an in-person interview.

Visa Appointments Are Still Limited: India Update

The DOS notes that you should check with your local consular posts for details on interview waiver appointments. There are still backlogs at most posts given the COVID-19 backlogs, limited operating conditions, and staffing challenges.

The visa services division in India has announced additional appointments are to be released:

In the coming days, the U.S. Embassy and Consulates in India will release more than 20,000 additional interview waiver (dropbox) appointments for Spring 2022 to allow qualified applicants to make use of the new interview waiver authority. Due to reduced staffing and numerous pandemic-related disruptions to our operations since March 2020, appointment demand is high across all visa categories and wait times may be lengthy for most routine nonimmigrant visa appointments at the U.S. Embassy New Delhi and the consulates in Chennai, Hyderabad, Kolkata, and Mumbai.

As a reminder, all travelers must abide by vaccination and testing requirements set forth by the CDC, DHS, DOS, and the airlines.

Additional Resources

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Wage-Based Cap Selection Rule Vacated by Courts

From USCIS, 12/21/2021

The Department of Homeland Security has published a final rule that withdraws the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions final rule, also known as the H-1B Selection Final Rule, issued Jan. 8, 2021. That rule was vacated by the U.S. District Court for the Northern District of California.

On Sept. 15, 2021, the court in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. March 19, 2021) vacated the H-1B Selection Final Rule. The rule would have changed the way USCIS selects H-1B registrations (or petitions, if registration is suspended) submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

For more information, see the final rule.

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Additional H-2B Visas Available in FY 2022

From the Department of Homeland Security, 12/20/2021

For First Time, DHS to Supplement H-2B Cap with Additional Visas in First Half of Fiscal Year

WASHINGTON—The Department of Homeland Security (DHS) and the Department of Labor (DOL) today announced the forthcoming publication of a joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022.  These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.

This supplemental cap marks the first time that DHS is making additional H-2B visas available in the first half of the fiscal year.  Earlier this year, USCIS received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.

The supplemental H-2B visa allocation consists of 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.  The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti and the Northern Triangle countries of Honduras, Guatemala, and El Salvador.

“At a time of record job growth, additional H-2B visas will help to fuel our Nation’s historic economic recovery,” said Secretary Mayorkas.  “DHS is taking action to protect American businesses and create opportunities that will expand lawful pathways to the United States for workers from the Northern Triangle countries and Haiti.  In the coming months, DHS will seek to implement policies that will make the H-2B program even more responsive to the needs of our economy, while protecting the rights of both U.S. and noncitizen workers.”

DHS intends to issue a separate notice of proposed rulemaking that will modernize and reform the H-2B program.  The proposed rule will incorporate program efficiencies and protect against the exploitation of H-2B workers.

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States.  The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence, seasonal need, or intermittent need.  Employers seeking H-2B workers must take a series of steps to test the U.S. labor market.  They must also certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker.  In addition, they must certify that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.  Additional details on these safeguards, and on eligibility and filing requirements, will be available in the temporary final rule and the Cap Count for H-2B Nonimmigrants webpage.

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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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