H-1B "cap" reached for FY 2023

On March 29, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2023. 

The USCIS announcement states:

“We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration. Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, rejected, disputed, or cancelled after submission

… H-1B cap-subject petitions for FY 2023, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2022, if based on a valid, selected registration. Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2023, and only for the beneficiary named in the applicable selected registration notice.”

In the 2021 (FY 2022) season, a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. USCIS has not yet announced when such a selection might take place in 2022 (FY 2023).

© Jewell Stewart & Pratt PC 2022

Update on E and L Spouse Work Authorization

July 18, 2022 update:

The M-274 Handbook for Employers was updated with guidance on how to verify work authorization for E-2 and L-2 spouses.

May 18, 2022 update:

Effective May 4, 2022, the automatic extension period is now 540 days for eligible spouses, not to exceed I-94 validity. The USCIS had announced in November 2021 that eligible spouses could receive 180-day extensions.

March 21, 2022 update:

On March 18, 2022, USCIS provided additional guidance on E-3 and L-2 spouse work authorization. Specifically and as noted below, an I-94 with the “E-3S” or “L-2S” class of admission is a List C document only, and so those seeking to document their work authorization will also need a List B document such as a state issued identification card or driver’s license to complete an I-9 process with an employer. USCIS also indicated that it will be re-issuing older approval notices to reflect the new classes of admission for applicants already in the United States who have an I-94 issued by USCIS.  Further info: https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-employment-authorization-for-e-and-l-nonimmigrant-spouses

Original post:

Pursuant to a historical settlement agreement announced in November 2021, U.S. Customs & Border Protection (“CBP”) headquarters has confirmed that it is issuing new classes of admission for E and L spouses, including E-1S, E-2S, E-3S, and L-2S. These new classes of admission are being printed on I-94s issued by CBP for entries to the U.S. on or after January 31, 2022, and are also being printed on USCIS approval notices for E and L spouse status extension approvals on/after January 31, 2022. Pursuant to the November 12, 2021 USCIS policy alert, the new I-94 with E-1S, E-2S, E-3S, or L-2S class of admission is considered a List C document for employment verification (I-9) purposes, i.e., persons with these new classes printed on their I-94s are now authorized to work incident to status and without taking further steps such as applying for a work permit. That said, we are awaiting conforming I-9 guidance from USCIS in USCIS’s M-274 Handbook for Employers, which has not, as of this writing, been updated with the new classes of admission.

© Jewell Stewart & Pratt PC 2022

H-1B "cap" registration dates announced for 2022 (FY 2023)

On January 28, 2022, USCIS announced the dates for the upcoming H-1B cap registration window and selection process. Selection will be via random lottery, as in prior years. (USCIS has abandoned its plans for a wage-based selection process.)

In its announcement USCIS stated that registrants will be able to create new accounts beginning at 9AM PT / 12 PM ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

USCIS also stated that the registration period will open at 9AM PT / 12 PM ET on March 1 and close at 9AM PT / 12 PM ET on March 18. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2022.

© Jewell Stewart & Pratt PC 2022

Celebrating 25 Years of JSP

December 2021 marks JSP’s 25th anniversary, having been founded by Phyllis Jewell in 1996! Big kudos to Phyllis for her vision in founding and building the firm, creating opportunities for thousands of clients over the past 25 years. The partners, lawyers, and professional staff of JSP all look forward to the next 25 years of serving our clients in their U.S. immigration matters.

© Jewell Stewart & Pratt PC 2021

New Travel Ban Issued for Southern African Countries

12/28/2021 update:

On December 24, 2021, the Biden Administration stated that it would lift the Southern African travel ban at midnight on December 31, 2021.

Original post 11/29/2021:

On November 26, 2021, the Biden Administration issued a new geographic travel ban due to the emerging Omicron COVID-19 variant. The ban goes into effect today, November 29, 2021, and suspends entry for anyone present in the listed countries for the 14 days preceding entry. The countries include: Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.  Many of the same exceptions apply as with previous bans, such as Lawful Permanent Residents, parents of minor U.S. citizens, and spouses of U.S citizens.  As of this writing, DHS has not announced implementation details except via an announcement to air carriers which instructs that previously granted National Interest Exception (NIE) waivers are void as to this ban, and that this ban does not affect the vaccine and testing requirements for U.S. entry that are currently in place. The Department of State has a short summary of the new ban here.

© Jewell Stewart & Pratt PC 2021

USCIS Runs Third H-1B Lottery on 2021 (FY 2022) Registrations

On November 19, 2021, USCIS announced that it ran a third H-1B lottery on 2021 (FY 2022) registrations. The petition filing period based on the new selected registrations will be from November 22, 2021 to February 23, 2022. We will be notifying clients of additional selections and next steps for filing ASAP. Thank you for your patience!

© Jewell Stewart & Pratt PC 2021

Historic Changes for L-2, H-4, & E Spouse Work Authorization

11/12/2021 Update: On November 12, 2021, USCIS released a confirming policy memo and corresponding policy manual changes that, in addition to the H-4 and L-2 changes discussed below, also includes automatic extensions of work authorization for E spouses (including E-1, E-2, and E-3 dependent spouses).

Original post:

On November 10, 2021, the American Immigration Lawyers Association and its litigation partners announced that it has reached a settlement that “provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization.”

Under the settlement agreement, the U.S. Citizenship and Immigration Service (USCIS) will reverse its policy that prohibited H-4 spouses from benefiting from an automatic extension of their employment authorization during the pendency of certain employment authorization document (EAD) applications. It will also reverse its policy that L-2 spouses must apply for employment authorization prior to working in the United States.

H-4 dependent spouses covered by the Settlement Agreement are those who:

1. Properly filed an application to renew their H-4 based EAD before it expired.

2. Have an unexpired Form I-94 showing their status as an H-4 nonimmigrant.

3. Will continue to have H-4 status beyond the expiration date of their EAD.

Under the Settlement Agreement, USCIS will treat H-4 nonimmigrants who timely file their I-765 EAD renewal applications, and continue to have H-4 status beyond the expiration date of their EAD, as qualifying for an automatic extension of their employment authorization. Such an automatic extension will terminate on the earlier of: the end date of the individual’s H-4 status on Form I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD.

USCIS is expected to issue guidance shortly; and within 120 days of 11/10/2021, USCIS will amend the receipt notice currently issued to H-4 EAD applicants to describe EAD auto-extension eligibility.

Summary of changes for L-2 Spouses:

• All L-2 spouses are covered by the terms of the settlement agreement.

• USCIS will issue policy guidance within 120 days that states that all L-2 spouses are work authorized incident to status (i.e., they do not require an EAD or “work permit”). USCIS will also work with CBP to start issuing I-94s for L-2 spouses that indicate that they may be used as a List C document for I-9 purposes.

• L-2 spouses with timely-filed pending EAD renewals who are still in L-2 status now qualify for an automatic 180-day extension to their EADs, not to exceed their L-2 status (I-94) expiry. USCIS will also issue guidance for how employers can re-verify work authorization for those with pending EADs by using the facially expired EAD, the receipt notice showing timely filing, and an unexpired I-94.

• “Until the Form I-94 is changed to identify that the bearer is an L-2 spouse, for I-9 purposes, it will not be sufficient evidence of employment authorization acceptable under List C of Form I-9. L-2 spouses with pending renewal EAD applications may, however, receive automatic extensions of their EADs and present the combination of documents described above to their employers to satisfy Form I-9 requirements.”

© Jewell Stewart & Pratt PC 2021

U.S. Travel Bans Now Lifted; Vaccine Requirements in Effect

Starting today, November 8, 2021, the COVID-related travel bans are now lifted and the new vaccine and testing requirements are in effect for air travel to the U.S. For all the details on these new requirements for U.S. citizens, Lawful Permanent Residents, and nonimmigrant visa holders, please refer to our previous post.

The U.S./Canada and Mexico land borders (including ferries) are now also open to non-essential travel. There is a vaccine requirement in effect, but no testing requirement for land border travel. There are exceptions for U.S. citizens, Lawful Permanent Residents, children under 18, and those traveling for “essential” reasons. Starting on January 21, 2022, vaccines will be required for foreign nationals regardless of the reason for land border travel. DHS provided a Fact Sheet and FAQs for further information.

© Jewell Stewart & Pratt PC 2021

Biden Administration Issues Proclamation Suspending Entry for Unvaccinated Nonimmigrants

12/03/2021 update:

On December 2, 2021, the CDC amended its order regarding testing requirements for all air passengers 2 years of age or older to require a negative test within 1 day of boarding a flight to the U.S. The new requirement goes into effect for flights departing to the U.S. from a foreign country at or after 12:01 AM EST (5:01a AM GMT) on December 6, 2021.

Original post, last updated 11/08/2021:

On October 25, 2021, the Biden Administration issued a Proclamation concerning the ongoing COVID-related travel bans. This executive action, A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic, revokes the geographic-related COVID bans issued in 2020-2021 in response to the COVID-19 pandemic. It also creates a new global travel ban for unvaccinated nonimmigrant travelers, with certain exceptions. The new travel ban applies only to unvaccinated air travelers to the United States and does not affect visa issuance.

Frequently Asked Questions:

When will the geographic travel bans be lifted? The bans will be lifted and the new vaccine requirement will take effect for flights to the U.S. departing on/after November 8, 2021 at 12:01 AM ET.

Which vaccines will qualify? FDA Authorized/Approved and WHO Approved vaccines will qualify, specifically: Moderna, Johnson & Johnson, Pfizer-BioNTech, Oxford-AstraZeneca/Covishield, Sinopharm, and Sinovac. (Sputnik V will not qualify.) Mix-and-match vaccines will be accepted. The CDC considers someone as fully-vaccinated 14 days following the second of a two-dose series or 14 days after a single-dose. See the CDC website for further details.

Will a negative COVID test still be required? Yes. A negative test must be taken within 3 days of the flight for fully-vaccinated individuals. Children under two-years old and persons with documentation of recovery from COVID in the last 90 days do not need to test.

How will vaccine status be verified? Airlines will verify vaccine status as part of the boarding process. For acceptable forms of proof, refer to the CDC website.

Will there be any exceptions to the vaccine requirement? The limited exceptions include the following:

• 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

• Participants in certain COVID-19 vaccine trials

• Persons issued a humanitarian or emergency exception

• 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 with a C-1 or 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)

How will vaccine exceptions be administered? Airlines will be primarily responsible for verifying that an exception is met. For the humanitarian, emergency, or national interest exceptions, a paper or digital letter confirming approval may be issued by a U.S. Embassy or Consulate. See the CDC technical instructions for further details.

What are the requirements to travel to the U.S. for unvaccinated persons who meet one of the above exceptions?

Per the CDC website:

If you travel by air to the United States under one of these exceptions, you will be required to attest that you are excepted from the requirement to present Proof of Being Fully Vaccinated Against COVID-19 based on one of the exceptions listed above.

You must also have a negative COVID-19 test result taken no more than 1 day before travel.

Based on the category of the exception, you may have further requirements, such as attesting to the following:

1. You will be tested with a COVID-19 viral test 3–5 days after arrival in the United States, unless you have documentation of having recovered from COVID-19 in the past 90 days;

2. You will self-quarantine for a full 7 days, even if the test result to the post-arrival viral test is negative, unless you have documentation of having recovered from COVID-19 in the past 90 days; and

3. You will self-isolate if the result of the post-arrival test is positive or if you develop COVID-19 symptoms.

Based on the category of the exception, if you intend to stay in the United States for longer than 60 days you may additionally be required to attest that:

• You agree to be vaccinated against COVID-19; and

• You have arranged to become fully vaccinated against COVID-19 within 60 days of arriving in the United States, or as soon thereafter as is medically appropriate, unless (for children) you are too young to be vaccinated.

What does this mean for existing visa holders or ESTA travelers? On/after November 8, 2021 at 12:01 AM ET, existing visas and/or approved ESTAs for fully-vaccinated individuals may be used for travel without need of a National Interest Exception.

What does this mean for my upcoming visa appointment? We are awaiting guidance from the Department of State (“DOS”) on the full resumption of consular services and availability of visa appointments following months of COVID-related closures. An October 25, 2021 update to the DOS website states" “[p]lease note that the rescission of these [Proclamations] does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews.” However, “[DOS] can process visa applications for individuals physically present in the [previously banned] countries.”

Are there any travel requirements for U.S. citizens, Lawful Permanent Residents, or immigrant visa holders returning to the United States? Yes. U.S. citizens, Lawful Permanent Residents, and immigrant visa holders boarding a flight to the United States are required to show one of the following:

• If you are fully vaccinated: Proof of vaccination and a negative COVID-19 test result taken no more than 3 days before travel.

• If you are NOT fully vaccinated: A negative COVID-19 test result taken no more than 1 day before travel.

Children under 2 years old do not need to test. There are also accommodations for people who have documented recovery from COVID-19 in the past 90 days.

Are the Canada/Mexico land borders still closed? On October 12, DHS announced that the Canada/Mexico land borders will re-open for vaccinated travelers in November. A negative COVID test will not be required for land border travel. For updates on land border travel, please refer to this post.

Reminder: Changes are rapidly evolving and may not be immediately posted here.

© Jewell Stewart & Pratt PC 2021

Entry for 2023 Diversity Visa Lottery Program Now Open

The U.S. Department of State’s instructions for the 2023 Diversity Immigrant Visa Program (DV-2023) are now available and entries must be submitted electronically by November 9, 2021 at 12PM ET.

Persons born in the following countries are NOT eligible to apply:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Venezuela, and Vietnam.

Natives of Macau SAR and Taiwan are eligible.

Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.

The congressionally-mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2023, 55,000 diversity visas will be available.

© Jewell Stewart & Pratt PC 2021