Immigration News That You Can Use - New H-1B Cap Season Ramping Up; Dropbox Use Expanded for US Visas Overseas; F, M and J Visa Applications Made Easier; MFL Termination Letters and NVC Need for Quality Control; Flexibility Extended for Time to Respond to USCIS Actions; Visa Problems Where Applicants Leave US Before Decisions on Extension/Change of Status Requests.

by Alan Lee, Esq

  1. New H-1B Cap Season ramping up.

About 1 ½ months from now, USCIS will begin the employer registration process for new H-1B candidates who will be able to begin work in October 2022 or later if they are selected and their subsequently filed H-1B petitions approved. (Please note that this notice does not affect current H-1B holders except possibly H-1B cap exempts attempting to move to H-1B cap organizations). All employers who have not already done so should begin to put together a list of those candidates (many of whom may be on practical training) that they are interested in sponsoring.

There are encouraging signs that this H-1B season will go more smoothly than those in the recent past. Three regulations that could have adversely affected H-1B processing have been abandoned by the Biden administration – one by the Department of Labor which would have significantly raised the wages to be paid H-1B workers, and two by DHS that would have 1.) made it more difficult for candidates to qualify for H-1B status and 2.) changed the selection process from random selection to highest wages paid.

Unfortunately, the number of new H-1B visas to be awarded still remains 85,000, far short of the number of eligible candidates. For many, however, this may be the most viable means for companies and other organizations to acquire new talent and for candidates to establish a foothold in this country. H-1B holders are allowed to remain in the country for up to six years and even longer if the company takes timely steps to sponsor them for permanent residence. Many employers have been happy with the ability to retain bright, hard-working staff members for a number of years.

  1. Dropbox use expanded for US visas overseas.

The Department of State announced a change of policy on December 23, 2021, allowing waivers for even first time applicants for many employment-based visas, including H-1B and L intracompany transferees. This discretionary waiver of in-person interview applies to those who have had a petition approved by USCIS, are applying for a visa in their country of nationality or residence, who were previously issued any type of visa, and have never been refused a visa unless the visa refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility.

Although this is good news, persons thinking of taking advantage of this development should be aware that a waiver of the interview is discretionary and up to the consulate or embassy; and that the schedule of interviews or waivers of such is dictated by consul or embassy. In addition, a further risk for those who are interviewed and refused is being stuck in administrative processing, which may take time to resolve assuming that resolution is possible.

With such said, this is indeed good news as it will reduce the risk of consular processing for many nonimmigrant work visa seekers. Applicants should also be aware of the effect of Covid on the process in the country or region of which the following three are described in which they will ultimately be dropping passports and other documents:

  • China – Fully vaccinated with inactivated vaccine – take PCR test at U.S. departure city of flight seven days before boarding at either Avass Bioscience or Real-time Laboratories; monitor your health for seven days at the departure city; take second PCR test within 48 hours before departure. If fully vaccinated with non-inactivated vaccines, do all of the above plus take S protein IgM antibody and an N protein IgM antibody tests within 48 hours before departure at one of the two companies. If not fully vaccinated or unvaccinated, do the same.

Persons with a history of infection have more to do including lung CT or x-ray and 14 day quarantine.

Once in China, there are further restrictions including a quarantine period.

  • Hong Kong – Suspension of flights from the United States, Australia, Britain, Canada, France, India, Pakistan and the Philippines for two weeks beginning on 1/8/22.
  • India – India is usually on the backend of infections after Europe and the Omicron variant is fast spreading in India since late December. The government has introduced night curfews, shut down movie theaters, and slashed restaurant and public transport to half capacity. It is known that the Oxford AstraZeneca vaccine which has been used for about 90% of India vaccinations does not protect against omicron infections, although it appears to help reduce the severity of the illness. Persons interested in making an appointment by dropbox have been frustrated by the lack of appointments, and the Department of State has promised to release another 20,000 dropbox appointments in the spring. One wonders, however, whether Covid will begin to disrupt the schedule of appointments.
  1. F-1,M-1, and J-1 visa applications made easier.

Good news for student visa applicants applying for the first time or for renewals with the Department of State reverting to pre-Trump policy in an update to the Foreign Affairs Manual making the question of nonimmigrant intent easier to meet. Establishing that a person has nonimmigrant instead of immigrant intent is essential to gaining approval of student visas. The FAM guidance makes clear to consular officers that such applications are to be given latitude on the question of nonimmigrant intent:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify the applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future… In the circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States. Therefore, the residence abroad requirement for student applicants is to be considered in the context of the usual limited ties that a student would have, and their immediate intent.

With this revision, the US under the Biden administration is showing a more open and welcoming America.

  1. MFL termination letters and NVC need for quality control.

One wonders whether the National Visa Center requires more quality control in its issuance of MFL-1 termination letters as we recently received three which were clearly unwarranted. Under NVC policy, communication with the agency within a one-year period of time stops the case from going into deregistration. Yet on two of these cases, we had clearly sent in communications on time. It may have been that NVC receipt of communications and acknowledgment of such have been impacted by Covid, but if so, there should also be appropriate lag time for NVC to coordinate the communications before sending out MFL letters. Under NVC policy also, an applicant’s filing an I-601A Application for Provisional Unlawful Presence Waiver stops the case from going into the deregistration process, and yet we also had to fend off the third MFL letter when we had filed the I-601A application in January 2021.

  1. Flexibility extended for time to respond to USCIS actions.

USCIS is again extending flexibilities because of the pandemic for responding to certain actions of the agency between March 1, 2020 and March 26, 2022 inclusive. Such allows another 60 calendar days past the due date for requests for evidence (RFE’s), continuations to request evidence (N-14), notices of intention to deny (NOID’s), notices of intention to revoke (NOIR), notices of intent to rescind, notices of intent to terminate regional centers, and motions to reopen N-400 naturalization applications after receipt of derogatory information after a grant. In addition, flexibilities are further extended to I-290B notices of appeal or motions and N-336 requests for hearings on a decision in naturalization proceedings if the form is filed up to 90 days from the issuance of the decision, and USCIS made the decision between 11/1/21 – 3/26/22.

  1. Visa problems where applicants leave US before decisions on extension/change of status requests.

During the time of Covid, it has oftentimes been difficult for visitors to the US to leave the country on time as international flights are canceled with little or no notice, or countries have multiple restrictions on reentry that cannot be met within a short period of time. So, many visitors have been forced to file for extensions or changes of status to remain in a quasi-legal status while making arrangements to leave, and then leave the US before decisions are rendered on their requests. The questions are what is the status of their visas since there is an automatic visa cancellation provision in the law where individuals overstay their visas, and whether the US consulates and CBP are on the same page.

The Foreign Affairs Manual states that a person departing after the date on the I-94 passes but before an application for extension or changes status has been decided by USCIS has a blanket exemption from visa cancellation, if the application was filed in a timely manner and was nonfrivolous in nature. It is not clear that CBP is entirely onboard in light of its response from the American Immigration Lawyers Association New York Chapter/CBP meeting on December 2, 2021, in which CBP reportedly said, “Application of INA 222 (G) is quite case specific. Detailed reference as to the application of INA 222 (G) can be found in 9 FAM 302.1-9 which has specific helpful scenarios (which CBP may refer to but is not bound by). Recommend carrying the receipt notice if an extension application was timely filed even if later abandoned.”

To have CBP be on the same page insofar as visa cancellations are concerned would promote certainty in travel and prevent a situation of which we heard a few weeks ago in which the parent of an LPR traveled back to the US on the same visa five months after departing only to have a CBP officer cancel the visa on ground that the extension application was abandoned as the applicant had not shown up for her biometrics appointment.

This article © 2022 Alan Lee, Esq.

About The Author

Alan Lee, Esq is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2021), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.