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February 2022

Blog > Immigration Updates

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Biden Administration Implements New Actions to Increase Opportunities for STEM Students, Professionals, Others

The Biden administration announced new actions to increase opportunities in the United States for science, technology, engineering, and mathematics (STEM) students and professionals, among others. A White House statement said the new actions are intended to “advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America. These actions will allow international STEM talent to continue to make meaningful contributions to America’s scholarly, research and development, and innovation communities.”

According to the Department of State (DOS), in 2020, international students contributed more than $39 billion to the U.S. economy and supported an estimated 410,000 jobs in cities and towns across the United States. “U.S. entities and businesses gain a competitive edge in our global economy with the perspectives and skillsets of international students and scholars, particularly in the STEM fields,” DOS said.

Below are highlights of the new actions announced by the Departments of Homeland Security (DHS) and DOS:

DHS Initiatives

  • DHS added 22 new fields of study to the STEM optional practical training (OPT) program to “enhance the contributions of nonimmigrant students studying” in STEM fields and to “support the growth of the U.S. economy and innovation.” The STEM OPT program permits F-1 students earning bachelor’s, master’s, or doctoral degrees in certain STEM fields to remain in the United States for up to 36 months after they graduate to work in their fields of study.
  • DHS is also updating its guidance to clarify how certain STEM graduates can use the national interest waiver for employment-based immigrant visa classification as an advanced degree professional noncitizen or noncitizen of exceptional ability. DHS noted that certain noncitizens with an advanced degree or exceptional ability “can self-petition for employment-based immigrant visa classification, without testing the labor market and obtaining certification from the Department of Labor, if USCIS [U.S. Citizenship and Immigration Services] determines the waiver of the labor market test to be in the national interest.”
  • USCIS is also updating its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability in the fields of science, arts, education, business, or athletics. The update explains how USCIS determines eligibility for O-1A petitioners and, for the first time, provides examples of evidence that might satisfy the criteria, including for individuals working in STEM fields, DHS said.

DOS Initiatives

  • The Early Career STEM Research Initiative seeks to connect BridgeUSA exchange sponsors with interested U.S.-based STEM host organizations (e.g., small and medium businesses) to increase the number of STEM-focused educational and cultural exchanges.
  • DOS is also announcing an extension for undergraduate and graduate students in STEM fields on the J-1visa that will facilitate additional academic training for periods of up to 36 months. The extension applies to the 2021-22 and 2022-23 academic years.
  • DOS said these initiatives are “consistent with the recent Joint Statement of Principles in Support of International Education,” issued by DOS and the Department of Education.

Details:

USCIS Notes ‘Exceptionally High Number’ of Employment-Based Green Cards Available This Fiscal Year

U.S. Citizenship and Immigration Services (USCIS) recently issued an alert noting that an “exceptionally high number” of employment-based green cards are available this fiscal year (October 2021 through September 2022).

USCIS said that it is committed, in “partnership with the U.S. Department of State,” to “attempting to use all these visa numbers.” USCIS said many more visas are available in the first (priority workers) and second (workers with advanced degrees of exceptional ability) employment-based green card categories than there are adjustment of status applications pending with USCIS.

USCIS provided the following advice:

If you are eligible, please consider applying in the first or second employment-based preference categories. If you have a pending adjustment of status application based in the third employment-based preference category but also have a pending or approved petition and an available visa in the second employment-based preference category, we strongly encourage you to request that USCIS “transfer the underlying basis” of your pending application to the second employment-based preference category.

Details:

State Dept. Issues Final Rule Allowing Certain Fee Exemptions

The Department of State (DOS) issued a final rule on January 19, 2022, amending its regulation governing immigrant visa (IV) fees to allow an exemption from such fees for certain applicants previously denied an immigrant visa pursuant to certain Presidential Proclamations issued by the previous administration and associated technical corrections.

Specifically, the final rule applies to those who were denied an IV on or between December 8, 2017, and January 19, 2020, due to Presidential Proclamations 9645 and 9983. The final rule explains that any IV applicants denied under those proclamations, assuming no material change in circumstances, may now be eligible for a visa, and that DOS is exempting this defined category of IV applicants from payment of IV fees if they apply again for an immigrant visa.

If other refusal grounds in addition to the proclamations have not been overcome, the applicant would be required to pay the IV fees if they wish to apply again for an immigrant visa. Such applicants would need to have received a letter from a consular officer informing of a determination that the refusal on other grounds has been overcome, DOS explained.

Details:

State Dept. Announces F/M/J Nonimmigrant Visa Processing Posts Outside of Moscow for Applicants Resident in Russia

The Department of State (DOS) announced on January 21, 2022, that due to “severely limited consular operations in Moscow,” DOS has designated multiple posts for processing certain nonimmigrant visa applications from persons resident in Russia. Russia-based student visa applicants (F and M categories), academic exchange J visitors (student, professor, research scholar, short-term scholar, and specialist J visa categories), and participants in U.S. government-funded exchange visitor programs may apply at Mission Kazakhstan and the U.S. embassies in Belgrade and Yerevan.

DOS encourages applicants to check each post’s website for the latest information on services and appointment availability at that specific post.

The agency noted that this designation does not prevent Russia-based F, M, and J applicants from applying at other posts where they are physically present. This designation also does not exempt travelers from the Centers for Disease Control and Prevention’s (CDC) requirement that all air travelers to the United States be vaccinated against COVID-19 with a World Health Organization emergency use-listed vaccine, DOS said.

Details:

USCIS Requests Comments on New Form I-129H1

U.S. Citizenship and Immigration Services (USCIS) issued a notice requesting comments by February 18, 2022, on a new Form I-129H1. USCIS made edits to the I–129H1 form and Instructions in response to previous comments. USCIS also removed form items and instructional language associated with a final rule published on January 8, 2021.

The notice is part of agency efforts to separate Form I-129, Petition for a Nonimmigrant Worker, into individual forms. USCIS explained that the I-129H1 form is intended to standardize requests for H-1B and H-1B1 nonimmigrant workers.

Details:

USCIS Clarifies Guidance on O-1 Nonimmigrants in Arts vs. Motion Pictures and Television

U.S. Citizenship and Immigration Services (USCIS) clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

USCIS explained that individuals of extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry may be eligible for O-1B classification. The updated guidance “will help officers and petitioners determine whether a beneficiary falls into the arts category or the motion picture and television category” and “will help with cases that have elements of both classifications, such as actors, directors, composers, or set designers who work in both motion pictures and television and live theater. It will also help officers and petitioners understand where streaming internet productions fall in these categories,” USCIS said.

Among other things, the guidance notes that analysis of whether a production is within the motion picture or television industry (MPTV) is not limited to whether it will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. “While static web materials and self-produced video blogs and social media content generally do not fall into the MPTV category, USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview,” USCIS said. Accordingly, USCIS “may properly consider work on such productions to fall under the O-1B (MPTV) classification.”

Details:

February Visa Bulletin Warns of High Demand in Employment Fourth Category, Notes Upcoming Expiration of SR Religious Workers Category

The Department of State’s Visa Bulletin for February 2022 notes that high demand in the employment fourth preference category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the fiscal year 2022 annual limit. DOS said the situation will be continually monitored and any necessary adjustments will be made.

The bulletin notes that for El Salvador, Guatemala, and Honduras, the rate of demand increased primarily for adjustment of status cases “and will require corrective action as early as March to hold number use within allowable limits. Also, for Mexico, the bulletin says that “corrective action may be necessary in the coming months.”

The bulletin also notes the upcoming expiration of the employment fourth preference Certain Religious Workers (SR) category as of February 18, 2022: “No SR visas may be issued overseas, or final action taken on adjustment of status cases,” after February 17, 2022, and “all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S.” by February 17, 2022.

Details:

USCIS Issues Reminder re Immigration Help Available for Natural Disasters, ‘Other Unforeseen Circumstances’

U.S. Citizenship and Immigration Services (USCIS) issued a notice on January 12, 2022, reminding the public that the agency offers immigration services “that may help people affected by unforeseen circumstances such as natural disasters,” including the Marshall fire in Colorado.

USCIS said following measures may be available on a case-by-case basis upon request:

  • Changing nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. “Failure to apply for the extension or change before expiration of your authorized period of admission may be excused if the delay was due to extraordinary circumstances beyond your control,” USCIS said;
  • Re-parole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration of fee waiver requests due to an inability to pay;
  • Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Flexibility if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Documents, and Arrival/Departure Record (Form I-94); and
  • Rescheduling a biometric services appointment.

Details:

Justice Dept. Settles Immigration-Related Discrimination Claims With Frozen Food Company

The Department of Justice (DOJ) reached a settlement agreement with Buddy’s Kitchen Inc., a Minnesota-based company that produces and distributes frozen foods. The settlement resolves claims that the company discriminated against non-U.S. citizens based on their citizenship status when checking their permission to work in the United States.

DOJ said its investigation revealed that the company routinely discriminated by asking non-U.S. citizens, primarily lawful permanent residents, to present specific Department of Homeland Security-issued documents to prove their authorization to work in the United States, while making no such request of U.S. citizens. Under the settlement, Buddy’s Kitchen will pay $40,000 in civil penalties, change its employment policies to comply with the anti-discrimination provision of the Immigration and Nationality Act, and train its employees who are responsible for verifying workers’ permission to work in the United States.

In a statement released on January 14, 2022, DOJ said, “All employees have the right to choose the valid documentation they wish to present when demonstrating that they have permission to work in the United States.”

Details:

KLASKO NEWS

FIRM NEWS

2022 H-1B Lottery: The New Normal
On January 19th, Bill Stock, Michele Madera, and Nigel James covered all the 2022 H-1B cap season essentials and the latest developments for U.S. employers and their sponsored employees. Watch the webinar recording here!

2022 H-1B Lottery and Alternatives for Startups
On February 3rd, Elise Fialkowski, Andrew Zeltner, and Karuna Simbeck discussed how startup companies can utilize the H-1B visa program, how to prepare for the upcoming lottery, and H-1B alternatives. Watch the webinar recording here!

IN THE NEWS

William A. Stock
Bill Stock was quoted in this JD Supra article on immigration technology must-haves for 2022.

H. Ronald Klasko
Ron Klasko joins the podcast series the Global Investment Voice to discuss what the future looks like for the EB-5 community, including Regional Center reauthorization, investment minimum amounts, and more.

RECENT SPEAKING ENGAGEMENTS

William A. Stock | Michele M. Madera | Nigel D. James
On January 19th, Bill Stock, Michele Madera, and Nigel James covered all the 2022 H-1B cap season essentials and the latest developments for U.S. employers and their sponsored employees. Watch the webinar recording here!

William A. Stock
On January 26th, Bill Stock spoke in the Canada Chapter Annual Conference 2022 on a panel entitled The Future of Immigration Practice in a Post-COVID World.

Elise Fialkowski | Andrew J. Zeltner | Karuna C. Simbeck
On February 3rd, Elise Fialkowski, Andrew Zeltner, and Karuna Simbeck discussed how startup companies can utilize the H-1B visa program, how to prepare for the upcoming lottery, and H-1B alternatives. Watch the webinar recording here!

William A. Stock
On February 3rd, Bill Stock was a speaker in the 2022 AILA Midwinter Virtual Conference on a panel entitled Cryptocurrency: What Immigration lawyers Need to Know.

ICYMI: RECENT BLOG POSTS AND ALERTS

Creative Uses of the International Entrepreneur Parole Program
In this article, Oliver Yang discusses how the International Entrepreneur Parole program can be used in creative ways.

FIRM FEATURE

Every month one Klasko employee is nominated for a Ronny Award. This month the Ronny Award went to Paralegal Daniel Heim. His nominator wrote:

He is amazing. He is fun, friendly, smart, catches issues before anyone else does, knows immigration law so well, writes well, is dedicated, perceptive, thorough, and fast.

Congratulations, Daniel!

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.

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