Legal Blogs and Updates

Department of State to Launch a Pilot Program Offering US Visa Renewal (by mail) for H-1B Visas

Bloomberg Law reports that a limited number of H-1B workers will be able to renew their visas in the US as soon as January 2024 under a new program.  The rollout of the H-1B domestic renewal pilot will be limited to 20,000 participants and will allow H-1B visa holders to renew their visas by mailing them to the Department of State (DOS) in the US. This would disperse the present requirement to travel abroad and attend an interview and face uncertain wait times at US consular posts.  Details about the pilot program, including how the 20,000 will be selected, are not yet available.  However, it is expected that a Federal Register notice will soon be released.

Future newsletters/alerts will include details as they develop.

Some EAD Applicants Are Eligible for 180-Day Extensions

USCIS announced that certain renewal applicants who have filed Form I-765, those who have applied for or received Temporary Protected Status (TPS) or Asylum, and who timely file a Form I-765 renewal application on or after October 27, 2023, qualify for an automatic extension of their expiring employment authorization and/or employment authorization documents (EADs) for 180 days while their renewal application is pending. 

USCIS also recently published a Policy Manual Update increasing the maximum EAD validity period to five years for initial and renewal applications approved on or after September 27, 2023, for the following categories:

• Certain noncitizens who are employment authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, granted asylum, and recipients of withholding of removal; and
• Certain noncitizens who must apply for employment authorization, including applicants for asylum and withholding of removal, adjustment of status, and suspension of deportation or cancellation of removal.

Contact us with questions about the automatic extension of EADs.

Reminder:  All Employers Must Now Use the Revised Form I-9

The USCIS Ombudsman issued a reminder that starting Wednesday, November 1, 2023, all employers must use the revised Form I-9, Employment Eligibility Verification, with the edition date August 1, 2023, when completing the employment eligibility verification process.

Contact us with questions about I-9 compliance.

White House Issues an Executive Order Suggesting More Efficient Immigration Processing for Workers Specializing in Artificial Intelligence Technologies Named as “Critical Emerging Technologies”

An Executive Order (EO) issued by the White House on October 30, 2023, addresses the “safe, secure, and trustworthy development and use of AI.”  Section 5 of the EO calls for “streamlining processing times and availability of visa petitions and applications for noncitizens who work in AI and seek to come to the U.S.,” and directs the Secretary of State or Secretary of Homeland Security to, within 90 days of the EO, “take appropriate steps to attract and retain talent in AI and other critical emerging technologies to the US” including:

• Streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work, study, or conduct research in AI or other critical and emerging technologies; and
• Facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies.

The EO also instructs the Secretary of State or Secretary of Homeland Security, with 120 days, to take, or consider taking, the following steps (among others):

• Consider implementing a domestic visa renewal program to facilitate the ability of qualified applicants, including highly skilled talent in AI and critical and emerging technologies, to remain in the US without unnecessary interruption;
• Establish a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas;
• Review and initiate any policy changes necessary to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies (including O-1A, Schedule A, and others; and
• Develop a guide for experts in AI and other critical and emerging technologies to understand their options for working in the United States.

Client Flyer:  Understanding Visa Retrogression

Retrogression in the immigration context is another way of describing the backlog in obtaining green cards.  Retrogression means that due to the high demand for visas exceeding the statutory limits, visas are not available to all noncitizens who want them, even if they have already filed an application for adjustment of status.  We have attached a helpful flyer that explains retrogression, its causes, and options.  

Please contact us with questions about retrogression.

The Change in Certain Overseas Visa Appointment Scheduling Platforms at US Consular Offices Overseas Has Resulted in Some Problems

Several posts worldwide (e.g., India, Australia, South Korea, Japan, etc.) have recently changed and/or initiated migration of their existing appointment scheduling systems from US Traveldocs to a new scheduling platform, US Visa Scheduling. This migration resulted in several issues that the DOS has worked to remedy, particularly in the context of Mission India. The problems included:

• Login credentials not migrating from US Traveldocs to the new system;
• Appointment dates and fee payments not migrating from US Traveldocs;
• Requiring petition request number in addition to petition receipt number;
• Petition start date and petition expiration date to be entered in hours and minutes; and
• Failure to notify applicants that their visas were issued and their passports were ready for pick-up.

The DOS reports that it has corrected all these problems. Applicants are advised that they do not need to pay a new visa fee if they have a valid payment receipt. If there is an error with the payment, applicants should email the support center at support-india@usvisascheduling.com.

Contact us if you encounter problems with the new scheduling platform.

DOJ Continues to Penalize Employees for Immigration-Related Discrimination

Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., in mid-November 2023, DOJ announced two settlements with well-known employers:

• New York City Health and Hospitals Corporation (NYCHH), which provides health care services to more than a million New Yorkers, reached an agreement resolving DOJ’s determination that NYCHH violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it rejected a worker’s valid employment authorization document (EAD) based on the worker’s national origin. The worker’s EAD had been extended automatically under Temporary Protected Status (TPS). DOJ determined that NYCHH rejected the valid document and delayed the onboarding of the worker based on its incorrect assumption that the worker’s country of birth listed on her EAD had to be the same as the country designated for TPS. DOJ pointed out that the worker does not have to show additional documentation or prove citizenship status, and that the country of birth listed on the worker’s documentation does not have to match the TPS-designated country.  Under the terms of the agreement, NYCHH will pay back pay to the affected worker and a civil penalty to the United States, train its staff on the anti-discrimination provision, review and revise its employment policies and training materials, and be subject to departmental monitoring for three years.
• Kforce Inc. (Kforce), a staffing agency with 36 offices across the US, reached an agreement to resolve DOJ’s determination that Kforce discriminated against non-U.S. citizens with work authorization. DOJ found that from at least March 1, 2019, to February 28, 2022, Kforce distributed job advertisements that contained unlawful hiring restrictions based on citizenship status or otherwise screened out candidates based on their citizenship status.  Under the terms of the settlement, Kforce will pay $690,000 in civil penalties to the United States and set aside $230,000 to compensate affected workers. The agreement also requires Kforce to train its personnel on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

Contact us with questions about I-9 compliance and national origin discrimination.

USCIS Reopens Cases where Category on Employment-Based /Advanced Paroles Were Incorrectly Issued

In late 2023, USCIS issued approval notices for Form I-131, Advanced Parole (AP), in employment-based petitions/applications, which included errors.  Reports of the errors included approved AP applications with the Temporary Protected Status category, rather than the applicable employment-based category.  Thereafter, USCIS performed a comprehensive review of the situation and mailed corrected documents on or about November 17, 2023.  Individuals with affected cases are encouraged to check the online status of their cases.  If USCIS found an error, the following message should appear on the case status:  On [date], we reopened your Form I-131, Application for Travel Document, Receipt Number XXX0000000000, and are reconsidering our earlier decision.  We sent you a notice that describes how we will process your case.  Please follow the instructions in the notice. 

USCIS has indicated that if there is an urgent travel need, individuals should create a field office appointment, with a follow-up to the USCIS Contact Center, if an appointment is not immediately available.

Contact us with questions about the USCIS error.

US Citizenship and Immigration Services (USCIS) Expands myProgress Tool to Form I-485 and Form I-821

The myProgress tool permits applicants to get personalized estimates of their wait times for major milestones in their case, including their final case decision.  The tool is currently available for:

• Form N-400, Application for Naturalization;
• Form I-90, Application to Replace Permanent Residence Card;
• Form I-130, Petition for Alien Relative;
• Form I-765, Application for Employment Authorization; and
• Form I-131, Application for Travel Document.

On November 21, 2023, USCIS announced that myProgress is being expanded to include Form I-485, Application Register Permanent Residence or Adjust Status, and Form I-821, Application for Temporary Protected Status.  However, myProgress will initially only be available for family-based or Afghan Special Immigrant I-485 applicants, not for employment-based I-485 applicants.

To view estimated case timelines, applicants must first create a USCIS online account and select their pending application. Until their case has a decision, myProgress will display the estimated wait times along with a checkmark beside three milestones as they are completed:

• The application is received;
• A biometric services appointment (if required) has been completed; and
• A decision on the pending case has been rendered.

USCIS reminds customers that, while estimates are based on historical patterns of cases with similar specifics, they are not a guarantee of speed, cannot take into consideration all possible unique application processing delays, and may underestimate the true processing time.

Contact us with questions about accessing myProgress.

Forbes Pens Op-Ed:  The Best Way Forward on Immigration Reform in America

In a recent Op-Ed, Forbes calls for bi-partisan immigration reform that combines “security measures with humanitarian values.”  The Op-Ed speaks to the need for a comprehensive approach, including:

• Enhanced border security;
• The provision of legal pathways to citizenship, improved visa processes;
• Repair of the H-1B program;
• Addressing the plight of the DREAMERS; and
• Matching would-be immigrants to American sponsors ready to support them.

The Op-Ed can be found here.