EMBASSY AND CONSULATE GUIDANCE TO PRIORITIZE CERTAIN CONSULAR SERVICES HAS BEEN RESCINDED

The Department of State (DOS) previously issued guidance stating that embassies and consulates were required to prioritize certain consular services, due to the COVID-19 epidemic. The DOS now issued a notice that the November 2020 visa prioritization guidance has been rescinded, effective immediately.

All embassies and consulates now have broad discretion to determine how to best prioritize visa appointments, among the range of visa classifications, at each specific embassy or consulate. Embassies and consulates are still subject to any local conditions or restrictions that are in place. In addition, applicants can still request expedited interviews, if their work will be performed at a facility engaged in pandemic response.

USCIS Selects Additional FY2022 H-1B Cap Registrations

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

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

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

 

USCIS Policy Alert: Employment Authorization of Certain E, L, and H Spouses

USCIS has issued a Policy Alert, and has updated its Policy Manual accordingly, to explain how its recent settlement in Shergill, et al. 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 120 days of USCIS’s policy alert, grant E and L spouses employment authorization incident to status. USCIS expressed its hope that eliminating the requirement of filing Form I-765 for E and L spouses will help reduce USCIS’s adjudication backlogs.

 Automatic Extensions of EADs for E, L, and H spouses

Beginning November 12, 2021, the EADs of E, L, and H spouses will be automatically extended for a period of up to 180 days if:

• The spouse 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 EAD expired; and

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

Duration

Automatic extension of E, L, and H spouses’ EADs will terminate automatically on the earliest of:

• The end of the validity period of the nonimmigrant status, as shown on the Form I-94;

• The approval or denial of the Form I-765 application to renew the EAD; or

• 180 days from the date of the expiration of the previous EAD.

E and L Spouses Authorized for Employment Incident to Status

With a new notation on Form I-94, to be implemented within 120 days of USCIS’s Policy Alert, E and L spouses will be authorized to work automatically if the spouse maintains valid E or L status. The new I-94 notation will (1) differentiate an E or L spouse’s status from that of a child; and (2) authorize the E or L spouse to work.

USCIS has rescinded its previous 2002 policy that required E and L spouses to apply for Employment Authorization using Form I-765 and receive a valid Employment Authorization Document (EAD) card in order to work. However, a Form I-765 may still be filed by E and L spouses if they wish to receive an EAD.

Once CBP implements its I-94 notation of spouse status, a valid E or L spouse I-94 will be sufficient proof of work authorization.

DECEMBER 2021 VISA BULLETIN

The Department of State has just issued December 2021 Visa Bulletin.  This is the third Visa Bulletin of Fiscal Year 2022. This blog post analyzes this month's Visa Bulletin.

Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB	All Other	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	1-Jan-19	01-May-12	C
3rd	C	22-Mar-18	15-Jan-12	C

Table B: Dates of Filing

The USCIS is expected the Table B chart for I-485 employment-based filings. See: USCIS Visa Bulletin Dates

MU Law Analysis

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

The story remains positive for Philippines and Worldwide EB-3, where dates held at Current.  They are expected to stay Current for the foreseeable future, in contrast to prior announcements from DOS officials.

SETTLEMENT PROVIDES RELIEF FOR NONIMMIGRANT SPOUSES SEEKING EAD RENEWALS

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

First, USCIS will now recognize that certain H-4 holders who timely file their EAD renewal applications will qualify for an automatic extension of their EAD while waiting for the adjudication of their renewal application. This automatic renewal will last for up to 180 days after the expiration of the EAD. However, the automatic extension will not exceed the end date of the individuals H-4 status noticed on the Form I-94, and will also end once USCIS issues an approval or denial on the renewal application.

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

As stated above, USCIS will be issuing formal guidance further detailing when and how these changes will be implemented. As always, MU will provide further updates as they become available.