Immigration Update: January 2022

Due to the ongoing COVID-19 emergency, USCIS is extending its deadline extension policy through March 26, 2022, and is revising the policy with respect to certain motions, appeals, and requests. Under the extended policy, a 60-day extension accommodation will continue to be available to stakeholders responding to or filing the following: 

• Requests for Evidence (RFE),
• Notices of Intent to Deny (NOID),
• Notices of Intent to Revoke or Rescind (NOIR),
• Notices of Intent to Terminate EB-5 Regional Investment Centers (NOIT),
• Continuations to Request Evidence (N-14), and
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

Applicants and petitioners who receive(d) any of the above notices or decisions dated between March 1, 2020 and March 26, 2022 (inclusive), will receive an additional 60 calendar days beyond the original response deadline in order to file a response with USCIS. This is a continuation of a USCIS accommodation that has been in place since March 2020.

However, USCIS has revised its accommodation for the following types of filings:

• Form I-290B appeals or motions to reopen an adverse USCIS decision, and
• Form N-336, Request for a Hearing on a Decision in Naturalization (Under INA Section 336).

In these cases, for adverse USCIS decisions dated between November 1, 2021 and March 26, 2022 (inclusive), USCIS will grant an extension of 90 calendar days from the date of the decision (as opposed to 60 days under the prior accommodation, and 30 days under standard pre-COVID rules) to file the Form I-290B appeal or motion or a Form N-336 hearing request. The USCIS policy can be found here. 

The DHS is withdrawing a final regulation that would replace the current H-1B cap lottery system with a system of allocating the annual H-1B quota according to a priority system by wage level. The DHS has published a final rule that withdraws 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, issued January 8, 2021. That rule was vacated by the U.S. District Court for the Northern District of California.

On Sept. 15, 2021, the court in Chamber of Commerce of the United States (U.S) of America et al. v. U.S Department of Homeland Security, et al., No. 4:20–cv–07331, (N.D. Cal. March 19, 2021) vacated the H-1B Selection Final Rule. The rule would have changed the way USCIS selects H-1B registrations (or petitions, if registration is suspended) submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

The H-1B cap lottery is expected to remain in place for the foreseeable future. However, the Fall 2021 DHS regulatory agenda released in recent weeks includes the rule on its “long-term action” list. 

The Secretary of State, in consultation with the DHS, has authorized consular officers through the end of 2022 to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved by the USCIS. This new authorization applies to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions, including that they are applying for a visa in their country of nationality or residence. 

Under this authority, consular officers have discretion to waive the visa interview requirement for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa, who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility, or for first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility and have previously traveled to the US using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

In addition, the Secretary extended previously-approved policies to waive the visa interview for certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants) through the end of 2022. More information can be found here. 

Consular officers may waive the personal appearance and interview requirements for certain replacement immigrant visa applicants under a new Temporary Final Rule.

Immigrant visa applicants who meet the following criteria may not need to make another in-person appearance before a consular officer for an interview, an execution of their application, an oath:

• The immigrant visa was issued on or after August 4, 2019;
• The applicant did not travel to the US on an immigrant visa; and
• The applicant seeks and remains qualified for an immigrant visa in the same classification as the expired immigrant visa or in certain automatic category conversions, and pursuant to the same approved petition.

Further information can be located at the State Department’s website.

On December 28, 2021, President Biden signed a Presidential Proclamation titled “A Proclamation on Revoking Proclamation 10315.” Pursuant to President Biden’s Proclamation, as of January 1, 2022, P.P. 10315 will no longer prevent visa issuance to individuals subject to that Proclamation. Consular sections in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe will resume routine nonimmigrant and immigrant visa services to the extent they are able. Applicants whose cases were refused solely due to their presence in a country covered by a regional COVID proclamation should contact the embassy or consulate where they made the application to request reconsideration. More information can be found here.

Effective immediately, USCIS will consider requests to expedite the processing of applications to renew Employment Authorization Documents (EADs) for health care workers. Qualifying health care workers may request expedited issuance of their EAD if they have:

• A pending EAD renewal application filed on Form I-765; and
• An EAD that expires within 30 days or less, or has already expired.

A qualifying health care worker is defined very broadly in the DHS advisory memorandum (“Healthcare / Public Health” section, pages 7-9). According to the USCIS guidance for requesting an expedite, requestors may contact USCIS by phone to request the expedite and should be prepared to provide evidence of their profession or current employment as a health care worker.

USCIS released guidance stating that it does not mail paper biometric services appointment notices for electronically filed Forms I-539. As part of USCIS’s ongoing transition to digital processing, the biometric services appointment notice will appear in an applicant’s USCIS online account under “Documents” once their appointment is scheduled.

Applicants are required to bring a printed copy of their biometric services appointment notice to their Application Support Center appointment. More information can be found here.

On December 4, 2020, the Executive Office for Immigration Review (EOIR) announced that electronic filing (e-filing) will become mandatory for lawyers on February 11, 2022. In the final rule, EOIR responds to comments and concerns regarding the e-filing process and use of ECAS (EOIR Courts & Appeals System). Previously, electronic filing was voluntary but highly encouraged. After February 11, only e-filing will be accepted. Cases filed by paper prior to February 11, 2022 will remain housed under the old system until concluded.