Article: “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.”

As published in the Immigration Daily on January 18, 2022

  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.

Q&A’s published on the World Journal Weekly on January 2&9, 2022 1. Can I do part-time work like paid expert consulting (outside my employer) with an EAD+AP card related to my I-485 EB1-B green card application? 2. Stay and work on H1B while Max out nearing 3. Can I move to the US while I wait for my green card? 4. I am currently on h1 b visa and I’m married to US citizen I would like to resign my job due to personal reasons and I have not started the process for adjustment of status.

1. Can I do part-time work like paid expert consulting (outside my employer) with an EAD+AP card related to my I-485 EB1-B green card application?

I am currently on an O-1 Visa, which expired in July 2021. My employer had applied for a renewal (still pending), and they said that I am still in status and able to work as long as the O-1 renewal has been pending for less than 240 days without any decision. I have since received my EAD+AP card for my EB1-B Green Card sponsored by my employer. My employer indicated that they will now withdraw the O-1 renewal application, since I have received my EAD. Additionally, my I-485 for AOS has also been approved. My question is whether I can now take up part-time paid employment outside of my employer (while also continuing to work for my employer) on my EAD+AP card (which I have in hand), or will this in some way jeopardize my future naturalization from permanent resident to citizen? I currently have an offer to do some part-time paid consulting (paid by the hour). Is it okay for me to accept this and receive payment?

Mr. Lee answers:
Under the circumstances that you describe under which you will continue working for the employer that sponsored you for the EB-1B green card, your taking on additional part-time paid employment is fine. You have an EAD allowing you to take on employment which is not confined to your present sponsorship which EAD may soon be superseded by the green card that you will receive since your adjustment of status application has been approved. Under either situation, the additional employment would be allowed. In green card situations based upon employment, USCIS would mainly be concerned at naturalization whether the applicant had an intention to work with the sponsoring employer when the green card was given. In your situation, that would not appear to be a concern as you state that you will continue to work for your employer.

2. Stay and work on H1B while Max out nearing

Arrived in US on Dec 2016 on B-1, change of status to H-1B in Feb 2017. My new employer will be applying for PERM in Mar 2022- What are my chances for Best Case Scenario, perm approved I-140 Approved. Worst case scenario any Audits How can I file for 7th year extension If I exhaust my H1 b then can I work outside US for same employer while my PERM/I140 being processed.

Mr. Lee answers:
Your best-case scenario appears to be no problems with the labor certification application and having an approved I-140 by the time that the six years runs out on your H-1B status. In that case, your company can file for an extension of the H-1B while you are in the US. The chances on that depend upon the labor certification application description and requirements, how the recruitment process goes, and the financial viability of your company – all of which cannot be foretold without knowing all of the facts now and when your company begins the process. The worst-case scenario is that your labor certification application is denied and your avenue is closed. In less dire circumstances in which there is an audit which delays labor certification approval until after your six years is up, you can either attempt to remain in the US on another nonimmigrant status or go out of the US and work for the same employer or another employer until you have an approved I-140 petition, at which point your employer can file a H-1B petition extension for you, which if approved, would allow you to return to the US. 

3. Can I move to the US while I wait for my green card?

My brother filed an I-130 and I live out of the US. Do I have to wait for my green card 10+ years or can I get a special visa and move to the US meanwhile?

Mr. Lee answers:
There is no special visa that would allow you to come to the United States ahead of the time that you are entitled to do so under your brother’s petition. On the other hand, you may be able to enter through some other nonimmigrant category such as H-1B specialized occupation worker or L-1 intracompany transferee as those are dual intent visas under which the fact of applying for immigration would not be negatively considered by a consular officer in adjudicating the visa application. Other nonimmigrant visas which require nonimmigrant intent such as visiting or student visas could still be given in the discretion of an American consular officer taking into account all the circumstances of the application.

4. I am currently on h1 b visa and I’m married to US citizen I would like to resign my job due to personal reasons and I have not started the process for adjustment of status.

I need to be vaccinated to apply for green card and in the meantime can I change my status to b1 and stay with my husband.

Mr. Lee answers:
Probably the better thing for you to do is to allow your H-1B status to expire if there will be a gap between your resignation and the time that you file for permanent residence under your marriage case. Expiration of status is not a bar to adjustment of status in your circumstances. In addition, a change of status application to B-1 or B-2 involves an assertion that you will be leaving the country at the end of the temporary period of stay. Such an application is not to be a stopgap to your morphing into permanent residence.