Tag: Immigration

USCIS has implemented a temporary final rule to automatically extend the validity of certain expired or expiring Employment Authorization Documents (EADs) for up to 540 days. Previously USCIS permitted a 180-day auto-extension for certain EAD renewals.

The temporary policy is effective May 4, 2022 to October 26, 2023, after which USCIS expects to revert back to the 180-day period.  The measure comes as USCIS struggles to eliminate its historic case backlogs and processing delays.

Who Benefits?

The rule permits applicants who have a pending I-765 EAD renewal application in a category that is eligible for automatic extension to have their EAD validity period extended for up to 540 days beyond the current EAD expiration date.

Key Considerations

• The automatic extension will end 540 days after the current EAD expiry date, or when USCIS issues a decision on the EAD renewal application, whichever is sooner.
• If the initial 180-day auto-extension period has lapsed, but less than 540 days have passed since the EAD expiration date, applicants in the eligible categories may resume working while the renewal application remains pending for up to 540 days from the EAD expiry date.
• The 540-day extension period applies to EAD renewal applications filed before and after enactment of the May 4, 2022 rule.
  • I-797C Receipt Notices for EAD renewal applications issued after May 4, 2022 will reference the 540-day automatic extension and may be presented together with a valid Form I-94 and expired EAD as proof of employment eligibility.
  • I-797C Receipt Notices issued prior to May 4, 2022 reference a 180-day automatic extension but nonetheless may be used as evidence of employment authorization for the 540-day period, together with an unexpired I-94 and expired EAD.
  • Individuals relying on the auto-extension period for continued employment authorization should refer to USCIS’s Automatic EAD Extension page to review the documents that should be presented for employment eligibility verification.
• Reminder: Spouses of E, H, and L nonimmigrants relying on the EAD renewal auto-extension provisions MUST have an unexpired I-94 document to benefit from the auto-extension provision. Spouses of E and L nonimmigrants who have an I-94 with the “S” annotation on the admission classification (E-1S, E-2S, E-3S and L-2S) do not require an EAD for employment authorization during the I-94 validity period.

The expansion of the auto-extension period from 180 to 540 days is welcome news to noncitizens who have lost work authorization due to egregious USCIS processing delays and the U.S. employers who have experienced workforce and business disruption as a consequence.   We  look forward to other USCIS initiatives to improve access to immigration benefits by  reducing case processing times, expanding electronic filing to additional applications, and promoting the fair and efficient adjudication of all applications.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

 

 

 

The Department of Homeland Security has published a final rule to expand premium processing service to expand premium processing service for certain immigration benefit requests.  The rule takes effect May 31, 2022.

What is Premium Processing?

Premium processing service currently allows employers to request expedited processing for certain immigration petitions if the employer pays a premium fee in addition to the base petition filing fee.  Premium processing is currently available for employers requesting a limited number of designated classifications when filing Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker.

What does the New Rule Do?

Pursuant to the rule, USCIS intends to make premium processing available for additional benefits as part of a 10-year phased-in implementation strategy.

According to the rule’s preamble, USCIS expects to implement premium processing for the following categories in FY 2022 (i.e., before September 30, 2022):

USCIS Form	Classification/ Category	Expected Premium Processing Fee	Expected Processing Time
I-140, Immigrant Petition for Immigrant Worker	Expands eligibility to preference classifications for Multinational Executives and Managers (EB-1) and National Interest Waivers (EB-2).	$2,500.00	45 days
I-539, Application to Extend/Change Nonimmigrant Status	Individuals requesting F-1, F-2, J-1, J-2, M-1, and M-2 classification. Expansion to additional categories of E-1, E-2, E-3, L-2, H-4, O-3, P-4, R-2 expected by FY 2025.	$1,750.00	30 days
I-765 Application for Employment Authorization Document (EAD)	Requests for EADs for F-1, Optional Practical Training, and Exchange Visitors. Expansion to additional categories expected by FY 2025.	$1,500.00	30 days

USCIS will announce on its website which applications and petitions are eligible for premium processing, and the conditions that will apply.  Fees may be adjusted on a biennial basis without notice and comment rulemaking.

Background

Publication of this rule comes at a time when USCIS is under growing criticism for its untenable adjudication delays. The agency has millions of applications pending in processing backlogs, many stemming from Trump-era policies designed to stymie immigration.

Before USCIS can further expand premium processing, it must raise sufficient funds to ensure that it has the staffing and IT resources to avoid increasing non-premium processing related processing times.  Hence the phase-in approach to premium processing expansion.  At the same time, expanding premium processing, even on an incremental basis, will serve as an additional revenue stream for the agency, helping it to add resources and implement efficiencies to eliminate backlogs.

USCIS also announced other initiatives aimed at providing relief, including setting revised processing timelines (essentially aspirational targets) for certain benefits and expanding automatic extensions for EADs when a renewal application is filed.

Gibney will continue to monitor these developments and provide updates as they become available.  If you have questions, please contact your designated Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual to expand acceptable evidence under the published material criteria for EB-1 Extraordinary Ability and Outstanding Researcher/Professor petitions, as well as acceptable evidence to meet the “leading or critical role” performed for a “distinguished” institution  criteria as applied to EB-1 Extraordinary Ability petitions.

HIGHLIGHTS

• With respect to “published material” about the beneficiary as applied to EB-1 Extraordinary Ability and Outstanding Researcher/Professor petitions: such evidence need not be a printed article or book/chapter, and more varied evidence is acceptable, including a transcript of audio or video coverage of the beneficiary or the beneficiary’s work.
• With respect to evidence to establish the beneficiary played a “leading or critical role” for a “distinguished” institution as applied to EB-1 Extraordinary Ability petitions: such evidence need not be limited to roles reflecting the beneficiary is (or was) a leader within the whole organization or establishment. The beneficiary may instead show they held a leading or critical role for a division or department thereof.

BACKGROUND

The expansion of acceptable evidence for these EB-1 petitions is a further step taken by the Biden-Harris Administration to recognize the diverse and dynamic ways that extraordinary ability professionals and outstanding researchers/professors distinguish themselves in their professional arenas.  While these policy updates are not limited to professionals in Science, Technology, Engineering, and Mathematics (STEM), they closely follow a recent policy update by the Biden-Harris administration to provide clarity and flexibility for EB-2 National Interest Waiver petitions related to STEM fields. Together, these policy updates provide greater access to EB-1 and EB-2 petition approvals and ultimately, towards obtaining a green card.

For additional information, please contact your designated Gibney representative, or email info@gibney.com.

As previously reported, pursuant to a policy announced on November 12, 2022, USCIS will consider E and L nonimmigrant dependent spouses to be employment authorized incidental to their status.  On January 30, 2022, USCIS and U.S. Customs and Border Protection (CBP) began issuing Form I-94 Arrival-Departure Records with new class of admission codes reflecting an “S” for the dependent E or L spouse. An unexpired Form I-94 issued with an E-1S, E-2S, E-3S, or L-2S classification code is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

On March 18, 2022, USCIS went one step further to provide relief for E and L spouses who were issued a Form I-94 by USCIS  prior to the January 30, 2022 implementation of the new classification codes. Starting April 1, 2022,  USCIS will begin mailing notices to E and L spouses who were issued a Form I-94 by USCIS without an “S” annotated I-94. This notice, together with an unexpired Form I-94 reflecting  E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization.   Note, however, that USCIS will only send such notices to individuals who were issued an I-94 on a Form I-797 approval notice  from USCIS pursuant to filing an I-539 application to change or extend nonimmigrant status.  USCIS will not send notices to spouses who were issued a Form I-94 by CBP at a port of entry into the U.S.   Eligible spouses who have not received a USCIS notice by April 30 may  email E-L-married-U21@uscis.dhs.gov to request a notice.

Work Authorization for H-4 Spouses

As a reminder, this benefit is only available for E and L spouses.  Nonimmigrant H-4 spouses are required to have a valid I-94 document showing H-4 status and an EAD for employment. According to the new policy, H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD. To do so, the H-4 spouse must file to renew prior to the EAD expiration date and must have unexpired I-94 showing valid H-4 status.

For questions, please contact your designated Gibney representative or email info@gibney.com.