Visa Lawyer Blog

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Happy Valentine’s Day! Welcome back to Visalawyerblog. In this blog post, we share with you some important updates in the world of immigration. But first, we hope you are having a wonderful holiday spent with friends and loved ones.

What’s New?

USCIS Updates its Guidelines to Increase Validity Period of Employment Authorization Documents for Certain Applicants

Last week, the U.S. Citizenship and Immigration Services announced new updates to its policy changing the maximum validity period granted to certain individuals applying for Employment Authorization Documents (EADs), also known as work permits.

Effective February 7, 2021, USCIS has announced that it will generally grant new and renewed EADs valid for a 2-year validity period to applicants in the following categories:

  • Admitted as a refugee (a)(3);
  • Granted asylum (a)(5);
  • Granted withholding of deportation or removal (a)(10); and
  • VAWA self-petitioner (c)(31).

USCIS will also be granting new and renewed EADs up to the end of the parole or deferred action period to applicants in the following categories:

  • Paroled into the United States for urgent humanitarian reasons or significant public benefit (c)(11); and
  • Granted deferred action (non-DACA) (c)(14).

This benefit will apply to those in the impacted categories seeking new and renewed EADs issued on or after February 7, 2022. EADs issued on or after this period will reflect the updated 2-year validity period. EADs issued prior to February 7, 2022, will not benefit from the change.

Why the change?

USCIS has said that this validity period extension will help ease processing backlogs because these applicants will no longer need to apply to renew their EADs every year. It will also help prevent interrupts in employment authorization.

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In today’s blog post, we share some interesting Question and Answer responses recently provided by the Department of State’s Office of the Assistant Legal Adviser for Consular Affairs (L/CA), in a meeting with the American Immigration Lawyers Association (AILA).

The responses below provide some important insight into current immigration policies and procedures taking place amid the ongoing COVID-19 pandemic.

Here, we summarize the most interesting questions covered during the January 20 meeting:

Department of State/AILA Liaison Committee Meeting

January 20, 2022 Q & A Highlights

Q: What role do Consular sections assume when determining whether an individual is exempt from the CDC COVID-19 vaccine requirement to gain entry to the U.S.?

A: Consular sections’ role in the process is to ensure that an individual’s request for a [vaccine] exception is filled out in full, and to transmit those requests to the CDC.

Q: If consular posts are involved in transmitting information in support of a humanitarian exception to CDC, what is the process, if any, for making such a request of a consular post outside the context of a visa interview?

A: Travelers should contact the consular section of the nearest embassy or consulate using the information provided on that embassies or consulate’s website

Q: What is the Department of State doing to alleviate the substantial backlogs created by the slowdown of operations at Consular posts and Embassies worldwide?

A: The Department is planning to hire foreign service officers above attrition in FY 2022. The majority will be assigned to a consular position after initial training. Additionally, the Department continues to recruit Limited Non-career Appointment (LNA) Consular Professionals. With very limited LNA hiring in FY 2020 and a pause on LNA hiring in FY 2021 due to CA’s budgetary constraints, Consular Affairs plans to hire more than 60 LNAs in FY 2022

Consular Affairs is working with State’s office of Global Talent Management to ramp up hiring in FY 2022, but many posts will not see these new officers until the second half of FY 2022 or FY 2023, particularly for officers assigned to positions requiring language training. Increased hiring will not have an immediate effect on reducing current visa wait times. Because local pandemic restrictions continue to impact a significant number of our overseas posts, extra staff alone is not sufficient to combat wait times for interviews.

Q: Can Consular Affairs please advise regarding efforts to resume routine consular services?

A: Consular sections abroad must exercise prudence given COVID’s continuing unpredictability. The emergence of the Omicron variant has prompted countries to reevaluate plans to relax travel bans, thereby leading consular sections abroad to recalibrate plans to resume services. Some posts have already fully resumed routine services. Others, in an abundance of caution and out of concern for the health of both consular staff and clientele, are slowly reintroducing some routine services.

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More immigration news is coming your way. This week important updates have been released for F-1 students seeking post-completion Optional Practical Training in certain STEM-related fields of study.

DHS Issues Advance Copy of STEM Designated Degree Program List for post-completion Optional Practical Training

If you are an international student studying in F-1 visa status in the United States, this update may be of interest to you. Today, January 20, 2022, the Department of Homeland Security released an advance copy of the Federal Notice, “Update to the Department of Homeland Security STEM Designated Degree Program List,” which is scheduled to be published in the Federal Register tomorrow, Friday, January 21, 2022.

With this notice, DHS has indicated that the agency will be adding 22 qualifying fields of study to the STEM Designated Degree Program List. This change is significant because DHS relies on the STEM Degree Program List to determine whether an F-1 international student has obtained a degree in a program of study that qualifies as a science, technology, engineering, or mathematics (STEM) degree, to seek employment in the United States following graduation.

What is post-completion OPT?

F-1 students that have earned a degree in a qualifying STEM field, are eligible to apply for a 24-month extension of their post-completion Optional Practical Training (OPT) after completing their studies. Those authorized for post-completion OPT can work part time (20 hours or less per week) or full time.

For those who participated in pre-completion OPT, USCIS reduces the amount of time that an individual is eligible to participate in post-completion OPT by deducting from the authorization period. For example, students you participated in 10 months of pre-completion OPT, would only be eligible for up to 2 months of post-completion OPT.

Who is impacted by this notice?

This notice impacts qualifying F-1 nonimmigrant students who seek a 24-month extension of post-completion OPT who have earned a degree in a STEM field of study as designated by the STEM list.

What are the 22 qualifying fields of study being added to the STEM list?

  • Bioenergy (03.0210). A program of study that focuses on the environmental and economic impact of using plants and microbes for the production of bio-based fuels such as ethanol and biodiesel. Includes instruction in biochemical engineering, bioprocessing, bioseparations, conversion, feedstock, economics, environmental sustainability, hydrology, and natural resource management.
  • Forestry, General (03.0501). A program that generally prepares individuals to manage and develop forest areas for economic, recreational, and ecological purposes. Includes instruction in forest related sciences, mapping, statistics, harvesting and production technology, natural resources management and economics, wildlife sciences, administration, and public relations
  • Forest Resources Production and Management (03.0510). A program that focuses on the application of forestry principles to the production, harvesting, and processing of forest resources and that prepares individuals to perform associated technical and managerial functions. Includes instruction in forest production and utilization, industrial forestry, agroforestry, transplantation, timber harvesting, selection and identification of trees, processing technologies and systems, equipment operations and maintenance, and related management skills.
  • Human-Centered Technology Design (11.0105). A program that focuses on incorporating a human perspective into designing, researching, and creating technological interfaces. Includes instruction in design, human-computer interaction, learning, neuroscience, perception, product design, user centered design, and usability.
  • Cloud Computing (11.0902). A program that prepares individuals to design and implement enterprise software systems that rely on distributed computing and service-oriented architecture, including databases, web services, cloud computing, and mobile apps. Includes instruction in data management, distributed and cloud computing, enterprise software architecture, enterprise and cloud security, mobile systems and applications, server administration, and web development.

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In today’s blog post, we are happy to bring our readers some very exciting news.

On April 26, 2021, the Department of State formally announced a new National Interest Determination for certain categories of nonimmigrant visa applicants currently unable to enter the United States due to COVID-19 related Regional Presidential Proclamations issued earlier this year. This new determination will allow certain travelers to obtain their visas and enter the United States, despite the issuance of COVID-19 related Regional Presidential Proclamations, known as Presidential Proclamations 9984, 9992, and 10143.

These Proclamations were issued early last year to prevent the rapid spread of COVID-19 to the United States, specifically from China, Iran, Brazil, South Africa, the Schengen countries, the United Kingdom, and Ireland.

Such Proclamations had the effect of restricting and suspending the entry into the United States, of both immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, South Africa, and Iran, during the 14-day period preceding their entry or attempted entry into the United States. Few categories of individuals were exempted from these Presidential Proclamations, including lawful permanent residents of the United States (green card holders), spouses of U.S. Citizens or lawful permanent residents, and others who were similarly exempted.

Individuals who have not been specifically exempted from the Regional Proclamations and have remained physically present in the impacted regions, have been unable to proceed with visa processing. Consulates worldwide have refused to grant visas to these individuals due to the enforcement of the Proclamations.

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Welcome back to Visalawyerblog! We kick off the start of a brand-new week with some important immigration updates.

USCIS Expands Premium Processing Service to E-3 Petitioners

We are happy to report that beginning February 24, 2021, petitioners filing Form I-129, Petition for a Nonimmigrant Worker, who are requesting a change or extension of status to E-3 classification, will be able to take advantage of premium processing service to expedite processing of their petition. The filing fee for premium processing service for E-3 petitions is $2,500.

What is premium processing?

Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker and I-140 Immigrant Petition for Alien Workers. The main benefit of this service is a guaranteed 15-calendar day processing time for all those who take advantage of it.

When does the 15-calendar period begin?

The 15-calendar day period begins when USCIS properly receives the current version of Form I-907, Request for Premium Processing Service, at the correct filing address noted on the form.

Once the I-907 is received, USCIS either issues an approval notice, denial notice, notice of intent to deny, or request for evidence within the 15-calendar day period.

Is premium processing available for other petitions?

At the moment premium processing service is only available for I-129 and I-140 petitions. However, H.R. 8337 proposed expanding premium processing service to other types of applications in the future including applications to change or extend nonimmigrant status, applications for employment authorization, and other types of benefit requests.

USCIS Introduces Flexibilities for Certain Students Filing Form I-765 for OPT

We are happy to report that on February 26, 2021, USCIS announced new flexibility policies for certain foreign students who have not received receipt notices for Form I-765 petitions for OPT as a result of USCIS delays.

USCIS has stated that the agency has been experiencing delays at certain lockboxes and has not been able to issue receipt notices for certain Form I-765 applications for optional practical training (OPT) for F-1 students in a timely manner.

As a result, USCIS will provide the following flexibilities to assist certain applicants for OPT who have been impacted by the delays.

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The nation awoke with a new President of the United States, and although President Joe Biden has been in office for less than one day, his administration is already planning sweeping immigration reforms and policy changes that will unfold throughout the coming months.

This is just the start of President Biden’s plan to reverse the numerous damaging policies and executive orders passed by the Trump administration during the past four years.

This morning, the White House issued a press release outlining President Biden’s commitment to modernize the U.S. immigration system by way of a legislative bill that will be introduced before Congress in a matter of days.

The new bill, the U.S. Citizenship Act of 2021, proposes to overhaul the current immigration system to more effectively manage and secure our country’s border.

According to the Biden administration, the purpose of the bill is to “restore humanity and American values to our immigration system….” providing “hardworking people who enrich our communities every day and who have lived here for years, in some cases for decades, an opportunity to earn citizenship.”

The bill will prioritize family reunification, address root causes of mass migration from Central America, and among other things ensure that the United States remains a refuge for those fleeing persecution.

Most importantly is the bill’s commitment to create a path to citizenship for eligible undocumented immigrants, including Dreamers and essential workers who have been on the frontline of the COVID-19 pandemic.

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Welcome back to Visalawyerblog! In today’s post, we discuss a newly released final rule announced by the United States Citizenship and Immigration Services (USCIS) on January 7, 2021.

The new rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” will modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to ensure H-1B visas are awarded only to the most highly skilled foreign workers according to a new wage level selection process.

According to USCIS this new rule will only affect H-1B cap-subject petitions. It will be enforced against both the H-1B regular cap and the H-1B advanced degree exemption beginning March 9, 2021 (its effective date).

The final rule is scheduled to be published on January 8, 2021, however an advance copy has already been posted in the Federal Register for review.

Click here to view the advance copy.

When does the final rule become effective?

The final rule will become effective 60 days after its date of publication in the Federal Register (falling on March 9, 2021).

What are some of the highlights of this new rule?

The USCIS final rule creates a wage-based selection process for H-1B registrations, instead of a randomized computer generated process which is currently in place.

Ranking by Wage Level

DHS will amend regulations governing the process by which USCIS selects H-1B registrations for the filing of H-1B cap-subject petitions by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level indicated on the petition, where the proffered wage equals or exceeds the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I.

The proffered wage is the wage that the employer intends to pay the beneficiary.

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nesa-by-makers-IgUR1iX0mqM-unsplash-scaledWe are very happy to announce that yesterday July 14, 2020, the Trump administration backed down and agreed to cancel a new set of federal guidelines that would have required international students to attend classes in-person during the upcoming Fall 2020 semester.

As you may be aware, on Monday July 6th U.S. Immigration and Customs Enforcement (ICE) issued a news release with new modifications that would have applied to international students in the United States, and those awaiting their visas abroad. The announcement prohibited international students from taking courses entirely online during the upcoming semester. It stated that students enrolled in schools with only online instruction would not be issued visas, and CBP would not permit these students to enter the United States. In addition, students already in the United States, who had enrolled in an online program, were given two options, transfer to another school with a hybrid or in person curriculum or depart the United States.

Shortly after these measures were announced, Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) on behalf of all international students affected by the new guidelines. The universities requested an emergency hearing to block the government from enforcing these measures. That hearing was scheduled to take place yesterday morning, but in a surprising turn of events, just before the hearing was getting started, the judge announced that the government had agreed to rescind its policy and would no longer require students to attend in-person classes in order to remain in the country.

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We continue to have good news for international students. As you already know, on July 8th Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit to stop the government from enforcing new guidelines on international students that would prohibit them from taking online classes during the Fall semester, despite increasing coronavirus cases nationwide. The new guidelines announced by the federal Student and Exchange Visitor Program (SEVP) would refuse visas to students in schools that plan to teach classes fully online this fall and would bar these students from entering the country. Students already in the United States enrolled in schools teaching online classes would need to leave the country or transfer to a school with in-person instruction to keep their visas.

Since the Harvard-MIT lawsuit was filed, Northeastern university has joined the fight. In addition, many other universities across the United States have rallied together in support of their students, including the University of California school system, Princeton, Cornell, John Hopkins University, and the University of Pennsylvania. These institutions have filed amicus briefs supporting the Harvard-MIT lawsuit and/or filed lawsuits of their own in district court.

On July 9th Attorney General Xavier Becerra also filed a lawsuit on behalf of the State of California against the Trump administration to stop the government’s new policies from going into effect.

Like the state of California, many more states are expected to file their own lawsuits in the coming week.

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New rumors are yet again circling regarding the possibility of a future executive order banning the entry of certain non-immigrants from the United States. An official speaking on condition of anonymity has fueled these rumors divulging information that the Trump administration is getting ready to issue a new executive order that would temporarily suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a period lasting several months.

A copy of the executive order has allegedly been leaked to the media; however, our office has not been able to find a draft copy of such an order. It is also important to note that even if a version of the executive order has been leaked, the official version of a future executive order banning non-immigrants might look substantially different.

What is being said about the potential executive order?

The order is rumored to suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a temporary period lasting several months.

Like previous executive orders suspending immigrant and non-immigrant entry, the order will contain numerous exceptions, although these exceptions have not yet been made clear. We believe exceptions will likely apply to essential workers such as health professionals, those working to mitigate the effects of COVID-19, and essential workers in food-related industries.

As it relates to J-1 visas, it is rumored that only summer workers, camp counselors, trainees, and interns will be impacted, not medical physicians.

TAKEAWAY: If you have a valid L-1, H-1B, H-2B, or J-1 non-immigrant visa and you are abroad, you should consider returning to the United States as soon as possible.

Who will the order likely impact?

The order is rumored to impact only those in L, H, and J non-immigrant status outside the United States, however, the Trump administration is considering adding regulatory changes to the order that would impact OPT students and new H-1B applicants in the United States. This includes provisions that would end the STEM OPT program, and provisions tightening H-1B visa requirements to narrow the definition of “specialty occupation,” require higher wages, and increase H-1B filing fees.

TAKEAWAY: STEM OPT applications and extensions should be submitted as early as possible to avoid a negative impact.

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