Health Care Blog

The USCIS has conducted a third round ofselections in the Fiscal Year 2022 (FY 2022, filed in March 2021) H-1B Caplottery. This is a historic first for the USCIS since implementing its new H-1Bonline registration system in 2019, as it has previously only conducted tworounds of selection.

While there are only 85,000H-1B cap-subject visas available, over 308,000 registrations were entered intothe selection lottery for FY2022. The USCIS will continue rounds of randomselection until it reaches the 85,000 H-1B quota. The initial selection wasconducted in March 2021, and the second round in July 2021. All selections arefor registrations entered into the FY2022 H-1B cap lottery in March 2021.

Registrations selected inthis latest round will now have a selection notice available on either theirmyUSCIS account or their attorney’s myUSCIS account. All H-1B cap petitionsfiled based on this third round of selections must be received by the USCIS byFebruary 23, 2022.  

USCIShas issued a Policy Alert, and has updated its Policy Manual accordingly, to explain how its recent settlement in Shergill, etal. v. Mayorkas will be applied in practice for the spouses of E, L, and H nonimmigrants.USCIS will automatically extend EADs for E, L, and H spouses, and within 120days of USCIS’s policy alert, grant E and L spouses employment authorizationincident to status. USCIS expressed its hope that eliminating the requirementof filing Form I-765 for E and L spouses will help reduce USCIS’s adjudicationbacklogs.

 AutomaticExtensions of EADs for E, L, and H spouses

BeginningNovember 12, 2021, the EADs of E, L, and H spouses will be automaticallyextended for a period of up to 180 days if:

• Thespouse properly filed an Application for Employment Authorization (Form I-765)for a renewal of their E, L, or H spouse-based EAD before the current EADexpired; and

• Thespouse has an unexpired Form I-94 indicating valid E, L, or H dependent status.

Duration

TheDepartment of State has just issued December2021 Visa Bulletin.  This is the thirdVisa Bulletin of Fiscal Year 2022. This blog post analyzes this month’s VisaBulletin.

VisaBulletin

TableA: Final Action Dates –Applications with these dates may be approved for their Green Card (PermanentResidency card) or Immigrant Visa appointment.

TableB: Dates of Filing

TheUSCIS is expected the Table B chart for I-485 employment-based filings. See: USCISVisa Bulletin Dates

MULaw Analysis

Ashas been the case for a few months now, the DOS continues to confound.  On one hand – and to the detriment of Indianand Chinese EB-3s– the DOS did not move these countries EB3 dates.  On the other hand, the dates for India andChina EB-2, progressed again.  IndiaEB-2 moved ahead by five months.  ChinaEB-2 advanced by six weeks.  Similarprogressions are expected in the Dates of Filing chart.

Thestory remains positive for Philippines and Worldwide EB-3, where datesheld at Current.  They are expected tostay Current for the foreseeable future, in contrast to priorannouncements from DOS officials.

The United States Citizenship andImmigration Services (USCIS) has entered into a settlementwhich provides beneficial changes to work authorization for H-4 and L-2spouses. USCIS will issue a formal policy guidance to implement the followingtwo changes.

First, USCIS will now recognize thatcertain H-4 holders who timely file their EAD renewal applications will qualifyfor an automatic extension of their EAD while waiting for the adjudication oftheir renewal application. This automatic renewal will last for up to 180 daysafter the expiration of the EAD. However, the automatic extension will notexceed the end date of the individuals H-4 status noticed on the Form I-94, andwill also end once USCIS issues an approval or denial on the renewalapplication.

Second, L-2 spouses will be employmentauthorized incident to status, or in other words, as a condition of the L-2,the spouse will be employment authorized without a separate application. USCISwill work in cooperation with CBP (Customs and Border Patrol) to change theForm I-94 so that L-2 spouses can use the document for Form I-9 purposes.

As stated above, USCIS will be issuingformal guidance further detailing when and how these changes will beimplemented. As always, MU will provide further updates as they becomeavailable.

 Join us for a review of some of the latest immigration changes and updates!

MU Law will be hosting a FREE webinar for our clients and friends on Tuesday, November 2, 2021 at 1PM Eastern (noon Central).

REGISTER HERE    

Join us for this FREE webinar to learn more about:

–          The Potential for Retrogression

–          Consular Backlogs

–          Expediting Cases for Health Care Workers

–          Additional updates and policy proposals and lobbying efforts

–          Covid Vaccinations now Required for Green Cards

President Biden has issued a new proclamationlifting travel restrictions for fully vaccinated individuals travelling by air tothe US beginning November 8, 2021.

Travelers from 33 countries –including India, China, Great Britain, and the Schengen Zone – have facedstrict travel restrictions since early 2020 that required a two-week quarantineperiod in a third country before the individual may enter the US. PresidentBiden’s proclamation lifts all country-specific COVID-19 travel bans.

To travel directly to the US by air, travelerswill have to (1) present proof that they are fully vaccinated against COVID-19 and(2) provide a negative COVID-19 test taken within 72 hours of travel. Onlyvaccines approved or authorized by either the Food and Drug Administration orWorld Health Organization will be accepted. This list includes vaccines createdby:

–         Moderna;

–         Johnson& Johnson;

–         Pfizer-BioNTech;

–         Oxford-AstraZeneca/Covidshield;

–         Sinopharm;and

–         Sinovac.

The proclamation includes several exemptionsfrom the vaccination requirement, including for children under 18, travelerswith certain medical conditions, and non-tourists from countries identified by Centerfor Disease Control and Prevention as having limited availability ofvaccination. However, some travelers who enter the US under one of theexemptions may be required to become vaccinated within 60 days of entry.

TheDepartment of State has just issued November2021 Visa Bulletin.  This is the secondVisa Bulletin of Fiscal Year 2022. This blog post analyzes this month’s VisaBulletin.

VisaBulletin

Table A: Final Action Dates — Applicationswith these dates may be approved for their Green Card (Permanent Residencycard) or Immigrant Visa appointment.

Table B: Dates of Filing

The USCISwill be using the Table B chart for I-485 employment-based filings. See: USCISVisa Bulletin Dates

MU LawAnalysis

The DOScontinues to confound.  On one hand – andto the detriment of Indian and Chinese EB-3s – the DOS retrogresseddates massively.  EB-3 India Final Actiondates retrogressed about two years, back to January 15, 2012. EB-3 China retrogressedto March 22, 2018, which is about 9 months. Adding to the pain of Indian and Chinese EB-3s, Dates of Filing forthese categories also retrogressed, which means that there will not be a chancefor I-485 filings.

On the otherhand, the dates for India and China EB-2, progressed.  India EB-2 moved ahead by three months.  China EB-2 advanced by 5 months.  Similar progressions occurred in the Dates ofFiling chart.

The story wasbenign if confusing for Philippines and Worldwide EB-3, where dates heldat Current. 

The confusioncomes on the heels of lastmonth’s DOS comments that implied retrogression in all categories, not justIndia and China EB-3.

Join us for areview of some of the latest immigration changes and updates!

MU Law will be hostinga FREE webinar for our clients and friends on Tuesday, November 2,2021 at 1PM Eastern (noon Central).

REGISTER HERE    

Join us for this FREEwebinar to learn more about:

–         The Potential forRetrogression

–         Consular Backlogs

–         Expediting Casesfor Health Care Workers

–         Additionalupdates and policy proposals and lobbying efforts

–         CovidVaccinations now Required for Green Cards

Andyet when the October 2021 was released not only did the dates stay the same,but the VB included a note at the end,

Employment Third:

Worldwide:A final action date could be imposed as early as November

China: Aretrogression of this date could occur as early as November

India: Aretrogression of this date could occur as early as November

Mexico:A final action date could be imposed as early as November

Philippines:A final action date could be imposed as early as November

Withthat we now expect retrogression in all EB categories starting in November. CharlieOppenheim, who runs creates each month’s Visa Bulletin for the Department ofState, said as much in his monthly YouTube video broadcast. 

Thereappears to be two reasons for this change in expectation:

-Therewere many more I-485, Adjustments of Status filed in FY 2020 than anyone in theDOS expected.  Likewise, the USCIS isapproving more I-485s.  This is adisappointing answer because most of these I-485s were filed in October andNovember 2020.  This insight should havebeen apparent much earlier.

-TheDepartment of State knows that their overseas consulates and embassies have theability to dramatically increase processing of consular processed visas.  This is good news for overseas for consularprocessed immigrant visas, like nurses, because it implies that the DOS isholding back immigrant visas instead of allowing the entire quota to be used byAOS cases.  On the other hand, it is surelydisappointing if you are in the US awaiting a visa. 

MULaw’s interpretation is that if the overseas consulates and embassies donot dramatically increase their visa issuance, that these visas should be putback into the AOS queue later in FY 2022.

A potential amendment to theforthcoming budget bill may dramatically raise the employment-based visa quota,if Senate Democrats canrewrite it in a way to appease the Senate parliamentarian.  Over the weekend, Senate Democrats attemptedto pass a positive immigration bill, but the Senate parliamentarian said thatit was inappropriate to include wide-ranging immigration language in a budgetbill.  Senate Democrats are said to beworking on a back-up plan.

A budget bill is expected to passbefore October 1, 2021 to prevent a federal government shut down.  Between now and then, the budget negotiationsare expected to consume Washington.  Aspart of the process, House and Senate committees propose and suggest languageto place into the bill. 

The HouseJudiciary Committee last week approved immigration language for the budgetbill, which included several positive immigration measures.  Notably, the HJC language included a“recapture” of immigrant visas that were authorized but unused by DHS from1992-2021.  A 2010report by DHS found that between 1992-2010 about a half million employmentbased visas were authorized by Congress but unused simply because ofbureaucratic delays and inefficiencies.  Recapturingthese visas would dramatically clear up most retrogressed green cards and wouldbe an amazing piece of legislation for foreign nationals, US employers, and theUS economy as a whole.

The language included a few otherpositive items:

-A legalization path for a largenumber of undocumented people in the US

-A similar recaptured visas forfamily-based visas

-A liberalized Adjustment of Statusprocess for those with priority dates that are 2 years old

-An increased budget allocation forUSCIS