U.S. Department of Homeland Security to End Form I-9 Requirement Flexibility

As employers navigated the challenges posed by the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) introduced flexibility to the Employment Eligibility Verification process on Form I-9. These flexibilities allow for remote inspection of identity and employment eligibility documents, providing a temporary solution to the physical proximity concerns brought about by the pandemic.

Under this flexibility, employers were allowed to defer physical document review and conduct remote inspections. Employees' documents could be examined remotely, using video, fax, or email. Employers were required to indicate "COVID-19" as the reason for the physical examination delay. Once physical examination became possible, employers were responsible for adding the notation "documents physically examined" along with the date of examination on the Form I-9.

On May 4, 2023, DHS announced that this flexibility will expire on July 31, 2023. Employers will have 30 days, until August 30, 2023, to complete all required physical inspections of identity and employment eligibility documents for individuals hired on or after March 20, 2020. Employers must ensure they meet these deadlines to maintain compliance with the Form I-9 requirements. For any specific questions or concerns, employers should be sure to consult with their legal services providers.

© Jewell Stewart & Pratt PC 2023

JSP Principal Chris Beckerson to be recognized for pro bono contributions

Jewell Stewart & Pratt is pleased to announce that Principal Chris Beckerson will be recognized for his pro bono work by Legal Services for Children (“LSC”), a San Francisco-based nonprofit focused on providing free legal and social services for youth with immigration, education, foster care or guardianship issues.

Chris is being honored with LSC’s “Trinidad Madrigal Excellence in Child-Centered Representation” award. This is an award given to one extraordinary pro bono attorney every year, in the legacy of LSC Volunteer Attorney Trinidad Madrigal.  The awards ceremony will take place at the Commonwealth Club in San Francisco on June 1, 2023.  

The award recognizes Chris's pro bono work over the past six years, alongside the LSC team, on behalf of young people escaping harrowing conditions in their countries of origin. Thank you to LSC for recognizing and supporting this vital and inspiring work, and congratulations to Chris!

© Jewell Stewart & Pratt PC 2023

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H-1B "cap" reached in 2023 (FY 2024)

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On March 27, 2023, 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) 2024.

The USCIS announcement states:

“We randomly selected from among the registrations properly submitted to reach the cap, and 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, not reconciled, disputed, or otherwise invalid.

… H-1B cap-subject petitions for FY 2024, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2023, if based on a valid, selected registration. Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.”

In 2021 (FY 2022) a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. No additional selections took place in 2022 (FY 2023). USCIS has not yet announced whether and when an additional selection might take place in 2023 (FY 2024).

© Jewell Stewart & Pratt PC 2023

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H-1B "cap" registration dates announced for 2023 (FY 2024)

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On January 27, 2023, 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.

In its announcement USCIS stated that the registration period will open at 9:00am PT / 12:00pm ET on March 1, 2023 and will close at 9:00am PT / 12:00pm ET on March 17, 2023. 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, 2023.

USCIS also stated that registrants will be able to create new accounts beginning at 9:00am PT / 12:00pm ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

© Jewell Stewart & Pratt PC 2023

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USCIS Returns to Concurrently Processing H-4 and L-2 Dependent Applications

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Pursuant to a recent settlement agreement, USCIS has agreed to resume its earlier practice of adjudicating I-539 status extensions and I-765 work permit applications at the same time that the principal’s I-129 is adjudicated - a.k.a. “bundling.” In recent years, dependents’ status extension and work permit applications would be adjudicated several months or even years later than the principal’s status extension filing. “Bundling” is only available for concurrently filed applications and will be applied to matters filed under regular or Premium Processing. The practice should be in effect for at least two years.

© Jewell Stewart & Pratt PC 2023

Negative COVID Test Required for all Travelers from China

March 15, 2023 update: CDC posted a notice in the Federal Register effective March 10, 2023, rescinding pre-flight testing requirement for persons traveling from China.

Original post:

Starting at 12:01 AM ET on January 5, all passengers originating from China, Hong Kong, and Macau will be required to provide a negative COVID test or documentation of recovery to board a flight to the United States. The requirement applies to all travelers regardless of nationality or vaccination status.

According to the CDC alert:

“[A]ll air passengers two years and older originating from the PRC will be required to get a test (such as a PCR test or an antigen self-test administered and monitored by a telehealth service or a licensed provider and authorized by the Food and Drug Administration or the relevant national authority) no more than 2 days before their departure from the PRC, Hong Kong, or Macau, and show a negative test result to the airline upon departure.

  • The requirement applies to these air passengers regardless of nationality and vaccination status.

  • This will also apply to persons traveling from the PRC via third country transit and to passengers connecting through the United States onward to further destinations.

  • Along with applying this requirement to direct flights from the PRC, passengers transiting Incheon International Airport, Toronto Pearson International Airport, and Vancouver International Airport on their way to the United States will be required to provide a negative COVID-19 test if they have been in the PRC in the last 10 days no more than 2 days before their departure to the United States. These three transit hubs cover the overwhelming majority of passengers with travel originating in the PRC and the Special Administrative Regions. We will continue to monitor travel patterns, adjust our approach as needed, and keep Americans informed in a timely manner.

  • Passengers who tested positive more than 10 days before the flight can provide documentation of recovery from COVID-19 in lieu of a negative test result.

  • Airlines must confirm the negative COVID-19 test result or documentation of recovery for all passengers before they board or deny boarding to the passenger.”

The U.S. Embassy in Beijing also provides further information regarding entry/exit requirements and testing/vaccine availability on its website. Not that the CDC’s order regarding proof of vaccination is still in effect. For additional information, the CDC’s COVID travel page is available here and includes a Travel Assessment Tool. Persons traveling in or visiting China should also be aware that many of the Embassy/Consular locations are not providing regular visa services due to COVID’s operational impacts.

© Jewell Stewart & Pratt PC 2023

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Green Cards Extended for Naturalization Applicants

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Effective December 12, 2022, USCIS updated its Policy Manual to automatically extend the validity of green cards for Lawful Permanent Residents who have applied for naturalization. Form N-400 receipt notices will include an automatic two-year extension of the green card. The receipt may be used along with the expired green card as proof of lawful permanent resident status. Given long agency processing times, this automatic extension will help applicants avoid a Form I-90 green card renewal filing. The new policy extends to all applicants who file a Form N-400 on or after December 12, 2022.

Relatedly, in September 2022, USCIS announced that applicants filing an I-90 green card renewal would receive a two-year extension printed on the receipt notice, which may be used as proof of lawful permanent resident status.

© Jewell Stewart & Pratt PC 2022

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Biden Administration's Public Charge Rule Takes Effect Dec. 23, 2022

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As background, in a new rule issued September 29, 2022, the Biden Administration clarified and aligned the existing Public Charge rule with long-standing USCIS practice, which requires most “green card” applicants to show that they will not need to primarily rely on public assistance if they become a U.S. permanent resident.

The new rule requires additional disclosures from most applicants filing I-485 applications for Adjustment of Status. The additional information required on the revised Form I-485 includes the following for each applicant:

  • Household size

  • Household income

  • Household assets

  • Household liabilities

  • Highest level of education

  • Certifications, licenses, and educational certificates earned

  • Whether the applicant has received Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), or State, Tribal, territorial, or local, cash benefit programs for income maintenance (often called “General Assistance” in the State context)

  • Whether the applicant has ever received long-term institutionalization at government expense

Note that unlike a previous version of the public charge rule, documentation of the above is not required in initial filings.  USCIS will issue a “Request for Evidence” if it requires further information to process your case.  As mentioned the Form I-485 has been updated to require this new information and the new form must be used for filings postmarked on or after the effective date of December 23, 2022.

 © Jewell Stewart & Pratt PC 2022

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Entry for 2024 Diversity Visa Lottery Program Now Open

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The U.S. Department of State’s instructions for the 2024 Diversity Immigrant Visa Program (DV-2024) are now available and entries must be submitted electronically by November 8, 2022 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 2024, 55,000 diversity visas will be available.

© Jewell Stewart & Pratt PC 2022

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H-1B "cap" reached for FY 2023

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U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022 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:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

We have completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:

  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2023 H-1B cap. We will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;

  • Change the terms of employment for current H-1B workers;

  • Allow current H-1B workers to change employers; and

  • Allow current H-1B workers to work concurrently in additional H-1B positions.

No further selections for new H-1B petition filings will take place for FY 2023, and the next registration period for FY 2024 will take place sometime in Q1 2023.

© Jewell Stewart & Pratt PC 2022