As published in the Immigration Daily on March 31, 2022
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Cap H-1B selection process announced complete – start the petitions!
USCIS announced on 3/29/22 that the H-1B selection process was completed and that online accounts would either show submitted, selected, denied, or invalidated failed payment. Petitions can be submitted beginning April 1 and petitioners will have at least 90 days to submit petitions; a petition must be properly filed with the correct service center and within the filing period indicated on the registration selection notice; and that petitioners must include a printed copy of the selection notice with the petition. Other parts of the announcement were that USCIS will not be using any prepaid mailers, [e.g. FedEx labels], to send out communications or approvals. Also, that issuance of I-797 receipts may be delayed – that if more than 30 days pass since confirmation of delivery and no receipt, petitioners should contact the USCIS Contact Center for assistance.
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EB-5 regional center reauthorization/reform law to begin in May.
A happy development has been the reauthorization of EB-5 regional centers for five years until September 30, 2027 in the “EB-5 Reform and Integrity Act of 2022”. The legislation goes into effect on 5/14/22, 60 days from the President’s signing on 3/15/22. There will likely be a number of changes in the May or June visa charts. Among the expected developments are backlogging of the China EB-5 direct investment category and a long date for China regional center cases. Some of the important features are carveouts for visa numbers – 20% for rural cases, 2% infrastructure cases in which federal, state, or local governments contract for EB-5 financing for the maintenance, building, and improvement of infrastructure, eg. private municipal bond deal, and 10% for areas of high unemployment. If these categories are more favorable than others for natives of China, they may feel inclined to invest in these types of projects. TEA (Targeted Employment Area) investment for rural and high unemployment areas will go up to $800,000 and the same amount will apply for an infrastructure project (which does not have to be in a TEA), and all others $1,050,000. Every five years beginning in 2027, the investment amounts will rise based on the change in the CPI (consumer price index). Federal and not the state will now determine whether the proposed area is in a high unemployment area or infrastructure project. A high unemployment area with 150% of the national rate of unemployment will be the census tract in which the NCE (new commercial enterprise) is principally doing business, and any adjacent census tract – the so-called “doughnut” approach. All present pending and filed cases will be grandfathered to the point that any future lapse in extending the regional center program will not affect adjudication and visa allocation. For investors in the US from countries with open quotas, they will be eligible to file concurrent I-526/I-485 applications. The dangling petition situation in which legislative nonrenewal of I-526 petitions filed up to June 30, 2021, left them hanging in uncertainty as to whether the cases could continue has been mostly alleviated by a provision that government agencies must continue adjudicating petitions and allocating visas to regional center investors who filed I-526 petitions up to September 30, 2026.
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Title 42 news including Ukrainians.
Title 42 has been big in the news this month with the Administration giving case-by-case exceptions to Ukrainians and with two court cases, one with the Court of Appeals in Washington DC and the other with a District Court in North Texas. CBP came out with a memorandum on 3/11/22 announcing exceptions under Title 42 for Ukrainians – that the public safety pandemic concern that has been used to turn back migrants without allowing them a chance to apply for asylum, will basically not apply to Ukrainians at land border ports of entry – “that CBP is authorized, consistent with the Title 42 Order, on a case-by-case basis based on the totality of the circumstances, including considerations of humanitarian interests, to except Ukrainian nationals at land border ports of entry from Title 42.” Who is eligible? “Those “who are in possession of a valid Ukrainian passport or other valid Ukrainian identity documents, and absent risk factors associated with national security or public safety, may be considered for exception from Title 42 under this guidance.” Those granted an exception can be processed for any disposition “including urgent port of entry humanitarian parole on a case-by-case basis.” This may precipitate a rush of the southwestern border by Ukrainians. In the DC case, Huisha-Huisha v. Mayorkas, the DC court made the ruling that although the executive is allowed to use Title 42 to expel persons attempting to enter the US without an asylum hearing because of pandemic concerns, he is not allowed to send them back to countries where they face persecution. The Administration had been sending many back to countries of persecution. In the Texas case, Texas v. Biden, the judge said that the Administration could not continue exempting children from Title 42. The Title 42 ban is set to expire in early April and the question is whether the Administration should continue extending it. One writer said that stopping it would solve both problems. The Biden Administration appears to be leaning in that direction even though such action would promote a run on the border and perhaps cause problems in giving a midterm election line of attack for Republicans. News reports today indicate that the Biden Administration is willing to take the risk and lift Title 42 restrictions in May.
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No more paper I-94’s at the border.
On another border issue, CBP gave notice on 3/18/22 that it will no longer be issuing paper I-94’s for land crossings, but only electronic I-94’s. So we should not be surprised from now on that persons crossing the border on TN and other statuses will no longer have paper I-94’s.
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The departure of expanded expedited removal.
The Federal Register notice which expanded expedited removal, 84 FR 35409 (7/23/19) was rescinded on 3/21/22 by another notice in the Federal Register, 87 FR 16022 (3/21/22). Now we are back to the future. Under expanded expedited removal, the previous boundaries of only using it when undocumented immigrants were discovered within 100 miles of the Mexico/Canada borders and being here less than two weeks were expanded by Mr. Trump so that it could be used against undocumented immigrants discovered in any location in the country and they would have to prove that they were here for at least two years two years before being exempted from expanded expedited removal. Although not used much, the threat of it caused panic to many members of the immigrant communities.