H-1B Planning Season is Upon Us with a New Process and New Deadlines
H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
USCIS has not announced any changes to the new e-registration tool this upcoming H-1B cap season. As such, employers seeking to file H-1B cap-subject petitions for the new fiscal year cap, including those eligible for the advanced degree exemption, must first electronically register. USCIS will open an initial registration period at the beginning of March 2022. The H-1B random lottery process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Given this advanced timeline for e-registration, it is now the best time for employers to decide whether they will file H-1B petitions.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.
Regulation that Increased Prevailing Wages Rescinded by Department of Labor
The Department of Labor (DOL) published a final rule on December 14, 2021, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” rescinding a previously DOL regulation that had been implemented in January 2021. The January 2021 regulation would have led to a dramatic increase in prevailing wages for H-1B, H-1B1, and E-3 petitions, as well as PERM Labor Certification applications. Had this previous DOL regulation been allowed to stand it would have made it much harder for employers to sponsor workers for these types of visas and benefits, so it is very welcome news that it has been rescinded.
DHS Withdraws H-1B Wage-Based Selection Rule
The Department of Homeland Security published a final rule withdrawing the Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B petitions final rule, also known as the “H-1B Selection Final Rule”, which was issued January 8, 2021. This rule was published at 86 FR 1676 (1/8/21) and was to become effective on 12/31/21. The rule would have changed the way that USCIS selects H-1B registrations submitted by prospective employers seeking to file an H-1B cap-subject petition by ranking and selecting registrations based on wage levels.
Link: https://www.uscis.gov/newsroom/alerts/dhs-withdraws-h-1b-selection-final-rule
USCIS Biometric Services Appointment Notices for Forms I-539 Filed Online will not be Mailed in Paper Format, they will be Available through USCIS Online Account
USCIS has announced that for Forms I-539 filed online, they will not be mailing paper biometrics notices to applicants. Instead, applicants may access their biometrics appointment notices via their USCIS online account under “Documents” once the appointment has been scheduled. Applicants will then need to print out their biometrics appointment notices and bring them to their scheduled appointments.
State Department Revives Less Stringent Policy in Determining Nonimmigrant Intent for F-1 and M-1 Visas
The State Department has revived a less stringent policy for determining nonimmigrant intent for applicants seeking F-1 and M-1 visas. The policy acknowledges that students will not necessarily have the same strength of ties to their home country that an applicant for a tourist visa might have, and that they should not be subject to the same type of scrutiny when considering their residence abroad, whether they may potentially abandon it, and whether they intend to leave the US once they complete their studies.
State Department Published Final Rule Allowing Certain Passport Renewal Applicants to Apply Online
The U.S. State Department published a final rule allowing passport renewal applicants who were previously eligible to apply by mail the additional option to apply online now. This rule became effective on December 23, 2021.
Link: https://www.govinfo.gov/content/pkg/FR-2021-12-22/pdf/2021-27404.pdf
CBP Extends Temporary Ability of U.S. Citizens to Travel with Expired Passports through March 31, 2022
U.S. Customs and Border Protection announced that the previous temporary policy of allowing U.S. citizens to travel on their expired U.S. passports has been extended until March 31, 2022. Please note that the passports affected are only those documents that expired on or after January 1, 2020.
Travel Restrictions on US/Mexico/Canada Border Lifted by CBP
On December 23, 2021, U.S. Customs and Border Protection published notices that announced the lifting of temporary restrictions that applied to non-essential travel by fully vaccinated travelers seeking to enter the U.S. via land ports and ferry service from Canada and Mexico. The lifting of these temporary restrictions had previously gone into effect on November 8, 2021.
Links: Federal Register / Vol. 86, No. 244 / Thursday, December 23, 2021; Federal Register / Vol. 86, No. 244 / Thursday, December 23, 2021
Waivers of the Interview Requirement for Certain Nonimmigrant Visas
The Secretary of State authorized consular officers to waive the requirement of an in-person interview for certain temporary employment nonimmigrant visa applications whose petitions have been approved by USCIS. This applies to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions. These conditions include that they be applying for a visa in their country of nationality or residence.
Consular officers now have the discretion to waive the in-person interview for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa, and who have never been refused a visa (unless a refusal was overcome or waived), and who do not appear to have any ineligibility or potential ineligibility. They may also, in their discretion, waive the visa interviews for first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q visas who are citizens or nationals of a country that participates in the Visa Waiver Program, as long as they have no apparent ineligibility or potential ineligibility and they have previously traveled to the U.S. using an authorization obtained via the Electronic System for Travel Authorization (ESTA).
Omicron Travel Bans on Southern Africa Lifted on 12/31/21
President Biden revoked Presidential Proclamation 10315 as of December 31, 2021, rescinding the travel restrictions previously imposed on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.