Episode 14: Premium processing, H-2B cap, COVID-19 policies

It’s March 9, and this is your BAL Immigration Report.

• Premium processing is extended to some Optional Practical Training applicants.
• S. Citizenship and Immigration Services reaches the H-2B cap.
• How the end of the COVID-19 emergencies will impact immigration processes.

“As we approach the end of the public health emergency, we do know that the administration has indicated they’re going to be reviewing all the relevant policies.”

—Kelli Duehning, BAL Partner

U.S. news

Premium processing for F-1 students seeking OPT

U.S. Citizenship and Immigration Services has expanded premium processing to certain F-1 students seeking Optional Practical Training, or OPT. As of March 6, USCIS will accept premium processing requests from F-1 students if they have a pending application for employment authorization and are filing for pre-completion OPT, post-completion OPT or a STEM OPT extension. USCIS will adjudicate these premium processing requests within 30 days.

The expansion is welcome news, especially because some F-1 students may file for OPT or STEM OPT extensions if their registrations are not selected in this year’s H-1B lottery. USCIS expects to further expand premium processing in the coming months.

H-2B cap reached for second half of FY2023

USCIS announced it reached the H-2B visa cap for the second half of the 2023 fiscal year. USCIS will continue to accept cap-exempt H-2B petitions, such as petitions for current H-2B workers who wish to extend their stay in the United States. The agency will also accept applications under a supplemental visa allotment announced last fall, including from employers seeking H-2B workers from El Salvador, Guatemala, Haiti and Honduras.

BAL Partner Ashley Foret Dees and Jeff Joseph will host a webinar on H-2B visas and the H-2B cap on Friday, March 10.

U.S. news roundup

• USCIS issued clarifying information about eligibility requirements for O-1B visas.
• The agency published updated guidance on mobile biometrics services.
• The Department of Homeland Security will accept comments on its proposal to raise USCIS fees through Monday, March 13. For more information on the Biden administration’s regulatory priorities, read BAL’s white paper on the 2023 U.S. immigration outlook.

Spotlight

A conversation with Kelli Duehning: what the end of the COVID-19 public health and national emergencies mean for immigration processes.

BAL Immigration Report: Three years ago this Saturday, the World Health Organization declared COVID-19 a pandemic. Within weeks, offices shut down in the United States and around the world. Kelli Duehning, a partner in BAL’s San Francisco office and a member of the firm’s Government Strategies team, joined us.

Duehning: The pandemic in 2020 certainly changed the way U.S. immigration operations worked. We all know U.S. immigration is in a paper-based world, so without people being in offices both on the government side as well as all of us, it really posed a lot of challenges.

BAL: Among the challenges for employers operating in a remote work environment? Verifying new employees’ Form I-9 identity and work authorization documents. The government adopted temporary flexible measures that allow employers operating remotely to verify these documents by email, fax or video.

In his State of the Union address, Biden signaled the COVID-19 national emergencies would end soon: “We broke the COVID grip on us. COVID deaths are down by 90%. We’ve saved millions of lives and opened up our country. We opened our country back up, and soon we’ll end the public health emergency.” The White House has since said it plans to lift the COVID-19 emergencies on May 11. This means that employers may need to recheck I-9 documents in person. Under the current policy, they would have to do this within three days.

Duehning: One of the things that flexible memo indicated was that when the national emergency comes to an end, or when the flexibilities end, that employers will then need to call in all of those folks that they virtually onboarded and then ask to see their documents in person. Now if that was implemented six months after the COVID process had started, most employers would probably be okay with calling these folks in. But we’re here three years later, and thousands of employees have been onboarded during those three years. Many employers are very concerned about calling those folks back in in the three-day time frame.

BAL: Duehning says government officials appear unlikely to waive the in-person verification altogether, but they may be more flexible on timing.

Duehning: We are hearing from the government that they may not waive that requirement, but we are hoping that they push the three-day timeline out further so that it gives employers time to actually call those folks back in — so whether that might be an additional 60 days, 90 days, 180 days. We encourage everybody listening to this podcast certainly use your advocacy connections to let the government know you’re going to need time to pull all those folks back in to complete that in-person processing.

BAL: The Department of Homeland Security, meanwhile, is at work on a regulation that could make some alternatives to in-person document examination permanent. The final regulation is expected to be published in late spring or summer.

The overall impact of the end of the COVID-19 emergencies will extend beyond I-9 policy. USCIS appears ready to end temporary measures that gave applicants more time to respond to some agency requests. The government may also reconsider vaccination requirements for inbound foreign nationals.

Duehning: As we approach the end of the public health emergency, we do know that the administration has indicated they’re going to be reviewing all the relevant policies. The two big ones would be, we know right now that USCIS has continually allowed flexibility or extended deadlines for filing requests for evidence or responses to notices of intent to deny — any of those kinds of violations were certainly extended. We know that that will come to an end March 23, but we don’t know if they will extend that one more time or whether or not they are just going to go ahead and end those extensions. So we’re closely watching what USCIS will do with that.

I think the other big one is the vaccination requirements for international travelers. Right now, we’ve not heard whether or not those vaccination requirements will be lifted as of May 11, so we’re certainly watching that closely to see whether or not the administration will lift those requirements or if they will remain beyond May 11.

BAL: The Associated Press and other media outlets reported this week that the Biden administration was preparing to roll back COVID-19 testing requirements on travelers from China. For the latest information, visit BAL.com/news.

Global news

Portugal, Ireland end golden visa programs

It’s becoming more difficult to get an investor visa in Europe. In recent weeks, Portugal and Ireland announced they would end their so-called golden visa programs. Last year, the European Commission urged EU member states to stop offering these visas, which grant foreign nationals residency permits or passports in exchange for substantial investments, often in real estate.

According to Reuters, the commission cited the security risks as the reason to end such programs. The commission was specifically concerned about allowing unvetted foreign nationals to buy access to borderless travel throughout the EU’s Schengen area. Portugal’s and Ireland’s schemes were originally enacted more than 10 years ago to draw foreign investment to the countries in the aftermath of the financial crisis.

Singapore to require education verification

Singapore will soon require verification of Employment Pass applicants’ education qualifications. Beginning Sept. 1, employers seeking to hire a foreign national for a new Employment Pass must submit an education qualification verification conducted by a government-authorized screening company. The process will apply to Employment Pass renewal applicants starting Sept. 1, 2024. Applicants should expect processing delays once the new requirement takes effect later this year.

Passport processing times increasing

Those in need of a passport to travel abroad this summer should be sure to plan ahead. That’s because processing times for U.S. passports are ticking up again. Currently, routine service can take 8-11 weeks and expedited service can take 5-7 weeks, according to the State Department.
Earlier this year, routine service ran at 6-9 weeks and expedited service was at 3-5 weeks. Delays should be expected throughout the summer travel season.

Global news roundup

• Australia eased requirements for some high-skilled visa applicants.
• Taiwan has instituted a new polio vaccination policy for international travelers.
• Ireland is accepting suggestions for revisions to two key occupations lists.

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