COVID TESTS NO LONGER REQUIRED FOR INTERNATIONAL TRAVEL

As of Sunday, June 12, 2022, at 12:01 a.m. EDT, the CDC issued an order rescinding the requirement that inbound air travelers to the US from abroad present a negative COVID-19 test result taken no more than one day before departure or show documented recovery in the past 90 days.

The CDC still recommends that all travelers remain up to date with vaccinations and that travelers still test before, and after travel. Likewise, the CDC still encourages the usage of face masks in indoor public transportation settings.

The CDC will continue to monitor the effects of the pandemic and reserves the right to reassess the need for a testing requirement should the situation change.

MU will provide any updates should the CDC issue a new order, but for now, the requirement is no longer I place. Should you have any questions or require additional information regarding personal travel plans please reach out to your designed MU attorney.

JULY 2022 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the July 2022 Visa Bulletin.  This is the tenth 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	Worldwide	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01APR19	01DEC14	C
3rd	C	22MAR18	15JAN12	C
Other workers	08MAY19	01JUN12	15JAN12	08MAY19

Table B: Dates of Filing

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

MU Law Analysis

As we mentioned last month, we have recently added another row, EB-3 Other Workers.  These are EB-3’s for occupations that require less than two years of education or experience to perform the job.  Among healthcare occupations, nurse aides are the common.  The retrogression to 08May2019 probably reflects full usage of this category in this fiscal year.

The India and China EB-2 categories each advanced.  India improved by three months and China improved by one month.

EB-3 India and EB-3 China will remain unchanged from May, as they did in June.  We do not expect forward progress in these categories for the rest of the fiscal year.

The WW and Philippine EB-3 remained current.  We may see a retrogression of WW and Philippine EB-3 before the end of the fiscal year, once the full allotment of visas is exhausted.   This is common, and nothing to be too concerned about, as we have explained in the past.

USCIS WILL CONSIDER AN INTERFILING REQUEST TO MEET THE “SOUGHT TO ACQUIRE” REQUIREMENT UNDER THE CSPA

USCIS has updated its Child Status Protection Act (CSPA) webpage to confirm that an interfiling request, a written request to transfer the underlying basis of a pending adjustment of status application, meets the “sought to acquire” requirement under the CSPA.

Under the CSPA, certain derivative, unmarried, child applicants for a Green Card are protected from the risk of “aging out”, or reaching age 21, before their Green Card Application is adjudicated by USCIS.

To be eligible for protection under the CSPA, an unmarried, child applicant who has filed Form I-485 must seek to acquire lawful permanent resident status within 1 year of a visa becoming available. This is referred to as the “sought to acquire” requirement.

Previously, the only ways to meet the “sought to acquire” requirement were as follows:

·         Filing Form I-485;

·         Submitting Form DS-260;

·         Paying the Green Card fee to the Department of State;

·         Paying the Form I-864 review fee to the Department of State; or

·         Having a Form I-824 filed on one’s behalf.

USCIS has clarified that interfiling is also now included in the list above, as an interfiling request meets the “sought to acquire” requirement under the CSPA.

NVC SUSPENDS ITS TELEPHONE INQUIRY LINE

The National Visa Center (NVC) has announced that it is suspending its telephone inquiry line effective May 23, 2022. The move comes as an attempt to address a backlog of inquiry requests at the NVC.

The NVC is facing “critical backlogs” of inquiry requests, and current response times to inquiries are approximately 2 months. The NVC will still accept inquiry requests for immigrant cases using its online form, but asks that follow-up inquiries not be made while the first inquiry is still within the NVC’s reported response timeframe.

The NVC has not yet announced when it expects to resume accepting inquiry requests via telephone.

PREMIUM PROCESSING WILL EXPAND TO INCLUDE CERTAIN PENDING EB-1 AND EB-2 I-140 PETITIONS

As part of its initiative to expand premium processing eligibility, on May 24, 2022, USCIS issued a news alert that its premium processing program will be expanded to include certain pending I-140 petitions filed under the EB-1 and EB-2 categories.

This expansion of premium processing only applies to certain previously filed Form I-140 petitions and will occur in phases:

·         Beginning June 1, 2022, USCIS will accept Form I-907 premium processing upgrade requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021.

·         Beginning July 1, 2022, USCIS will accept Form I-907 premium processing upgrade requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.

New (initial) I-140 filings for the categories above are not eligible for premium processing at this time.

USCIS will reject any premium processing requests for the classifications above that are filed before the appropriate start date. 

JUNE 2022 VISA BULLETIN: ANALYSIS AND PREDICTIONS

The Department of State has just issued the June 2022 Visa Bulletin.  This is the ninth 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	Worldwide	CHINA	INDIA	PHILIPPINES
1st	C	C	C	C
2nd	C	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C
Other workers	08MAY19	01JUN12	15JAN12	08MAY19

Table B: Dates of Filing

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

MU Law Analysis

You will notice that we have added another row, Other Workers.  These are EB-3’s for occupations that require less than two years of education or experience to perform the job.  Among healthcare occupations, there are most commonly nurse aides.  The retrogression to 08May2019 probably reflects full usage of this category in this fiscal year.

For the other categories, we saw exceptional news for India EB-2, which advanced a full year.  All EB-1, along with Worldwide and Philippine EB-3 remained current.  We do expect a retrogression of WW and Philippine EB-3 before the end of the fiscal year.  This is common, as we have explained in the past.

EB-3 India and EB-3 China will remain unchanged from May.  We do not expect forward progress in these categories for the rest of the fiscal year.

USCIS ANNOUNCES INCREASES AUTOMATIC EXTENSION PERIOD FOR CERTAIN EADS

Beginning May 4, 2022, the USCIS’s automatic extension period for certain EAD categories will temporarily increase from 180 days to up to 540 days.

This is a welcomed change in policy as many EAD extension petitions currently take more than 180 days to be adjudicated. Under the previous policy, an EAD holder was forced to stop working if the extension petition was not approved within the 180 days automatic extension period. Increasing the automatic extension period to up to 540 days will provide relief to many EAD holders and help prevent gaps in employment.

The automatic extension only applies to certain categories of EAD holders who timely file an extension petition before the expiration of their previous EAD. This includes H4 EAD holders with a valid I-94 and green card applicants. A full list of qualifying categories can be found on USCIS’s website.

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

The increased automatic extension period will end on October 26, 2023.

SEVP’S DISTANCE LEARNING GUIDANCE EXTENDED FOR 2022-23 ACADEMIC YEAR

In a Broadcast Message, the Student and Exchange Visitor Program (SEVP) has announced it will extend its guidance originally issued in March 2020 for the 2022-23 academic year.

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

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

•     Continuing Students

o Nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020 are permitted to engage in either a hybrid or fully online program of study beyond the regulatory limit for the 2022-23 academic year, provided they have not otherwise violated the terms of their nonimmigrant status. 

•       Initial Students

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

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

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

USCIS RECEIVES 483,927 H-1B CAP REGISTRATIONS

USCIS announced that it has received 483,927 H-1B cap registration during the March 2022 filing period, 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 during the March 2020 (FY 2021) filing period and 201,000 H-1B petitions received during the March 2019 (Fiscal Year 2020) filing period.

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

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

 

SEONTOSA CARE SETTLES $3M CLASS ACTION

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

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

Sentosa’s involvement in litigation is often unusual.  In March 2022, Reuters reported that remnants of a 2006 case continue to circulate throughout the federal court system.  As MU Law discussed in 2010,

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

The March 2022 Reuters report says that a 2-1 federal appeals court has now held that the Suffolk County DA’s office is immune from this lawsuit.  One wonders if this ends this 16 year litigation.

MAY 2022 VISA BULLETIN: ANALYIS AND PREDICTIONS

The Department of State has just issued the May 2022 Visa Bulletin.  This is the eighth 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	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart for I-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 allow additional long-delayed Indian nationals to apply for their green cards.  India EB-2s Dates of Filing also progressed to December 1, 2014.  All other Indian and 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. 

H-1B LOTTERY COMPLETE

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

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

Please keep in mind that “winning” the lottery does not guarantee an H-1B approval.  Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still establish eligibility for petition approval at the time the petition is filed and through adjudication, based on existing statutory and regulatory requirements.

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

USCIS POLICY ALERT: DOCUMENTATION OF EMPLOYMENT AUTHORIZATION OF CERTAIN E AND L SPOUSES

On March 18, 2022, USCIS issued a Policy Alert, and updated its Policy Manual accordingly, to apprise certain spouses of E and L nonimmigrants how the USCIS plans to 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 authorization incident 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 acceptable as 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 January 30, 2022 (with notations E-1, E-2, E-3, E-3D, E-3R, or L-2), USCIS will mail a notice regarding the new COA codes that, together with an unexpired Form I-94 reflecting E-1, E-2, E-3 E-3D, E-3R, or L-2 nonimmigrant status, may serve as evidence of employment authorization under List C of Form I-9.

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

USCIS ENCOURAGES ELIGIBLE INDIVIDUALS TO FILED I-485S IN THE EB-2 INDIA CATEGORY BASED ON THE APRIL VISA BULLETIN

The recently published April Visa Bulletin advanced the Date for Filing, or Chart B, for the employment-based, second preference (EB-2) category for India a whole year, to September 1, 2014. In addition, USCIS also updated its website to reflect that foreign nationals may use this Date for Filing, or Chart B, date in applying for adjustment of status.

With this publication, USCIS released a statement encouraging those eligible to apply under EB-2, to go ahead and apply. In conjunction with this recommendation, USCIS is also encouraging eligible applications to request to transfer pending adjustment of status cases to EB-1 or EB-2 categories if they meet the following criteria:

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

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

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

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

APRIL VISA BULLETIN: FUTURE EB-3 RETROGRESSION?

The Department of State has just issued the April 2022 Visa Bulletin.  This is the seventh 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	01MAR19	08JUL13	C
3rd	C	22MAR18	15JAN12	C

Table B: Dates of Filing

The USCIS is expected to use the Table B Dates of Filing chart for I-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 moved ahead by 2+ months, which should allow additional long-delayed Indian nationals to 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 of this month’s Visa Bulletin, which bears watching in future months, as it would affect both Philippines and Worldwide EB-3,

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

High number use in the Employment Third Preference “Other Workers” (EW) category may necessitate the establishment of a worldwide final action date as early as June to hold number use within the maximum allowed under the Fiscal Year 2022 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.