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BeginningMay 4, 2022, the USCIS’s automatic extension period for certain EAD categorieswill temporarily increase from 180 days to upto 540 days.

Thisis a welcomed change in policy as many EAD extension petitions currently takemore than 180 days to be adjudicated. Under the previous policy, an EAD holderwas forced to stop working if the extension petition was not approved withinthe 180 days automatic extension period. Increasing the automatic extensionperiod to up to 540 days will provide relief to many EAD holders and helpprevent gaps in employment.

Theautomatic extension only applies to certain categories of EAD holders whotimely file an extension petition before the expiration of their previous EAD. Thisincludes H4 EAD holders with a valid I-94 and green card applicants. A fulllist of qualifying categories can be found on USCIS’s website.

Unfortunately,OPT-based EADs and applicants changing the category their EAD is authorizedunder are not eligible for the automatic extension.

Theincreased automatic extension period will end on October 26, 2023.

In a Broadcast Message, theStudent and Exchange Visitor Program (SEVP) has announced it will extend its guidance originally issued in March2020 for the 2022-23 academic year.

SEVP has also extended theguidance in its FAQs for SEVP Stakeholders about COVID-19 to the 2022-23academic year.

Thus, the followingallowances for continuing and new nonimmigrant students will be extended forthe 2022-23 academic year:

•     Continuing Students

o Nonimmigrant students who were in valid F-1 orM-1 nonimmigrant status on March 9, 2020 are permitted to engage in either ahybrid or fully online program of study beyond the regulatory limit for the2022-23 academic year, provided they have not otherwise violated the terms of theirnonimmigrant status. 

•       Initial Students

o  New or initial nonimmigrant students who were notenrolled in a program of study on March 9, 2020 will not be able to enter theUnited States as a nonimmigrant student for the 2022-23 academic year if theircourse of study is fully online.

o  A new student is, however, permitted to engage ina hybrid program with some requirement for in-person learning, even with onlinecomponents beyond the regulatory limit, for the 2022-23 academic year.

SEVP’s current policyguidance and frequently asked questions can be found online at https://www.ice.gov/coronavirus

USCIS announced that it has received 483,927 H-1B cap registration during the March 2022 filingperiod, including petitions filed for the advanced degree exemption. 

This is substantially more than the 308,613 received last year(March 2021, FY 2022).  It is also far more than the 275,000 duringthe March 2020 (FY 2021) filing period and 201,000 H-1B petitions receivedduring the March 2019 (Fiscal Year 2020) filing period.

USCIS has notified H-1B cap lottery winners.  H-1B winners have until June 30, 2022 tosubmit their full H-1B cap petition to the USCIS for adjudication. 

As has been the case since the launch of the on-line registrationsystem in March 2020, the USCIS will continue to update the H-1B cap winnerslist.  Additional winners may be selectedin subsequent rounds until March 2023. USCIS is not expected to notify any H-1Blottery entrants of non-selection until all 85,000 H-1B cap approval notices havebeen issued.

Sentosa Care agreed topay $3 million to settle a lengthy class action case that has endured for fiveyears, reports Skilled Nursing News. This $3 million settlement extinguishes all claims for the 150 classmembers, including their TVPA violations.

In 2021, a federal judge found that Sentosa was liable for $1.56million, plus interest and the risk of additional damages.  The TVPA violations were novel in nursestaffing cases.  Ordinarily courts allowdamage clauses to be inserted into employment contracts.  However here, the federal judge found that theclause represented a threat to continue employment because a prior court hadfound Sentosa’s damage clause was unenforceable, allowing the TVPA claim tocontinue.  Sentosa has now settled allclaims associated with the case.

Sentosa’s involvement inlitigation is often unusual.  In March2022, Reuters reported that remnants of a 2006 case continueto circulate throughout the federal court system.  As MU Law discussed in 2010,

In 2006, eleven Philippine nurses employed ata Suffolk County, Long Island nursing home walked off their positions becauseof alleged bad working conditions. This mass resignation set off a chain oflawsuits [including one where the nurses] filed a federal civil rights lawsuitagainst . . . the Suffolk County District Attorney’s office.

The March 2022 Reuters report says that a 2-1 federal appealscourt has now held that the Suffolk County DA’s office is immune from thislawsuit.  One wonders if this ends this16 year litigation.

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

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart forI-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The EB dates stayed more or less static from the prior month,although India EB-2 advanced by 2 months, which should continue to allowadditional long-delayed Indian nationals to apply for their green cards.  India EB-2s Dates of Filing also progressedto December 1, 2014.  All other Indianand Chinese EB-1, 2 and 3 dates remained as they were in April.

The news remained positive for Philippines and Worldwide EB-3,where dates held at Current. 

USCIS has announced that it has received more than 85,000 registrations during theregistration period to reach the fiscal year (FY) 2023 H-1B cap.  The annual H-1B limit is 85,000, which is theH-1B cap.  Accordingly, the USCISprocessed the H-1B lottery.  MusilloUnkenholt has begun the process of notifying our clients who are H-1B lotterywinners that they are eligible to file an H-1B cap-subject petition.

H-1Bcap-subject petitions for FY 2023 may be filed with USCIS beginning April 1,2022 through June 30, 2022. 

Please keepin mind that “winning” the lottery does not guarantee an H-1B approval.  Petitioners filing H-1B cap-subjectpetitions, including those petitions eligible for the advanced degreeexemption, must still establish eligibility for petition approval at the timethe petition is filed and through adjudication, based on existing statutory andregulatory requirements.

In past years,the USCIS has not received enough H-1B cap petitions during the April 1-June 30period to meet the 85,000 H-1B annual limit. If this happens this year, USCIS will conduct subsequent lotteryselections until it has approved 85,000 H-1B petitions.

On March 18, 2022, USCIS issued a Policy Alert, andupdated its Policy Manualaccordingly, to apprise certain spouses of E and L nonimmigrants how the USCIS plansto verify their employment authorization.

As of November 12, 2021, USCIS has indicated that certain E-1, E-2,E-3 and L-2 nonimmigrant dependent spouses will be granted employment authorizationincident to status.  

 In its updated Policy Alert on the issue, USCIS indicates that:

• As of January 30, 2022, USCIS and U.S. Customs and Border Protection(CBP) began issuing Forms I-94 with the following new Class of Admission (COA)codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S.

An unexpired Form I-94 reflecting one of these new codes is acceptableas evidence of employment authorization for spouses under List C of Form I-9.

• For E and L spouses with Forms I-94 issued by USCIS prior to January30, 2022 (with notations E-1, E-2, E-3, E-3D, E-3R, or L-2), USCIS will mail anotice regarding the new COA codes that, together with an unexpired Form I-94reflecting E-1, E-2, E-3 E-3D, E-3R, or L-2 nonimmigrant status, may serve asevidence of employment authorization under List C of Form I-9.

USCIS intends to begin mailing notices on or about April 1, 2022.

Therecently published April Visa Bulletin advanced the Date for Filing, orChart B, for the employment-based, second preference (EB-2) category for Indiaa whole year, to September 1, 2014. In addition, USCIS also updated its website to reflect that foreign nationals mayuse this Date for Filing, or Chart B, date in applying for adjustment ofstatus.

Withthis publication, USCIS released a statement encouraging those eligible toapply under EB-2, to go ahead and apply. In conjunction with thisrecommendation, USCIS is also encouraging eligible applications to request totransfer pending adjustment of status cases to EB-1 or EB-2 categories if theymeet the following criteria:

1.   A visa is unavailable to them in theEB-3 category;

2.   They have a pending or approved FormI-140; and

3.   A visa is available in the EB-1 orEB-2 category.

Ifyou have any questions regarding your eligibility for the above benefits,please reach out to your MU attorney. The full USCIS statement on this topic isavailable here.

The Department of State has just issued the April 2022 Visa Bulletin.  This is the seventh Visa Bulletin of FiscalYear 2022. This blog post analyzes this month’s Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates — Applications with these dates may beapproved for their Green Card (Permanent Residency card) or Immigrant Visaappointment.

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart forI-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

The chart stayed similar to the past month’s Visa Bulletin.  One bright spot was that India EB-2 movedahead by 2+ months, which should allow additional long-delayed Indian nationalsto apply for their green cards.  Unfortunately,China EB-2, India EB-3, and China EB-3 stayed the same. 

The news remained positive for Philippines and Worldwide EB-3,where dates held at Current.  However, there is one important note at the end ofthis month’s Visa Bulletin, which bears watching in future months, as it wouldaffect both Philippinesand Worldwide EB-3,

F.AVAILABILITY OF EMPLOYMENT THIRD PREFERENCE “OTHER WORKERS” (EW) NUMBERS

Highnumber use in the Employment Third Preference “Other Workers” (EW) category maynecessitate the establishment of a worldwide final action date as early as Juneto hold number use within the maximum allowed under the Fiscal Year 2022 annuallimit. This situation will be continually monitored, and any necessaryadjustments will be made accordingly.

TheUSCIS’s annual H-1BCap lottery registration window will close on Friday, March 18, 2022 atnoon Eastern. All entries into the Fiscal Year 2023 lottery must besubmitted by noon Eastern on Friday, March 18, 2022 to be registered andeligible for selection.

MusilloUnkenholt encourages registering all candidates as soon as possible to avoid anytechnical issues or delays.

Ifan employer has candidates they would like to enter into the lottery, theemployer should reach out to their Musillo Unkenholt attorney as soon aspossible.

TheUSCIS intends to notify registrants selected in the first round of the lotteryby March 31, 2022. The USCIS is expects to conduct multiple rounds of selectionuntil it reaches the 85,000 H-1B quota. Registrants not selected by March 31may still be selected during a later ro    und.