Episode 23: Form I-9 update, Diversity Visas, visa processing abroad

It’s May 11, and this is your BAL Immigration Report.

• The U.S. announces a 30-day grace period for compliance after Form I-9 flexible measures end.
• Diversity Visa results are now available.
• An update on consular processing from two of BALs newest attorneys.

“Local conditions still matter, so regardless of the World Health Organization or the U.S. government saying the emergency is over, local conditions will still drive processes.”

—Nate McKinlay-Roy, BAL Senior Associate

U.S. news

Form I-9 grace period

U.S. Immigration and Customs Enforcement, or ICE, will give employers an additional 30 days to reach compliance with Form I-9 document inspection requirements when COVID-related flexibilities end on July 31. Introduced in March 2020, these flexible measures allowed employers operating remotely to verify employee eligibility documents virtually. The 30-day grace period provides some additional time to review documents in person. However, it is still a tight time frame, given that some employers have been relying on the temporary policy for more than three years. BAL encourages companies that have not yet started in-person reviews to begin planning to do so as soon as possible.

Diversity Visa results posted

Winners of the 2024 Diversity Visa have now been posted online. The Diversity Visa program provides 55,000 immigrant visas to individuals from countries with low levels of immigration to the U.S. Entrants can view their status on the State Department’s Diversity Visa website. Results will remain posted through Sept. 30, 2024. Selectees are in encouraged to complete the online DS-260 application immediately to schedule an interview appointment at the appropriate U.S. embassy or consulate.

U.S. news roundup

• The U.S. extended employment authorization for Hong Kong residents covered by Deferred Enforced Departure.
• The Labor Department posted updated PERM and prevailing wage processing times.
• BAL was named to Inc. Magazine’s list of 2023 Best Workplaces. For more information, visit com/about.

Spotlight

A conversation with BAL Senior Associate Dave Wagner and Associate Nate McKinlay-Roy: an update on U.S. consular operations from two of BAL’s newest attorneys.

BAL Immigration Report: Senior Associate Dave Wagner and Associate Nate McKinlay-Roy joined BAL’s Denver office last month, helping expand BAL’s services in a key market. Both Wagner and McKinlay-Roy have extensive experience advising clients on immigrant and nonimmigrant visa matters. Their concentrations include H-1B, L-1, O-1, TN and PERM. Last week, we recorded a conversation with them on the state of visa processing at U.S. consulates abroad.

Wagner: Initially, I want to introduce myself. I’m Dave Wagner. I’m a senior associate attorney with the Denver office for BAL. And I’m on this podcast with Nathan McKinlay-Roy, and he’s an associate with the Denver office. We’re relatively new at BAL Denver. We started about three weeks ago but wanted to hit the ground running and get on a podcast about consular operations for the Department of State.

Also, I want to mention that today, which is recording on May 5, 2023, the World Health Organization has changed the designation on COVID. They’re ending the emergency designation as of today. With that, we do expect more movement even with the U.S. Department of State and other federal agencies with this being changed. That leads into what Nate Roy will jump into, but we do have updates as well on the Department of State’s requirement for vaccines.

McKinlay-Roy: Thanks, Dave. In general, over the past, I’d say, 12 months plus, we’ve all experienced consular processing delays and issues on that front. But I’d say over the past six months or so, we’ve seen definitely consular processing get a little bit faster. Obviously, the U.S. Department of State announced around December 2022 that over the past year a number of visas, of the 7 million total visas , 3.5 million were issued without an interview. And the U.S. Department of State announced COVID-19 extensions. They announced extensions of in-person waivers for everyone with a 48-month visa stamp and renewal. I think we’re expecting to see that.

What’s unclear — especially with the U.S. government’s announcements and ending of the COVID-19 emergency domestically as of May 12 — it’s unclear how the Department of State’s going to handle COVID-related extensions that were designated and specifically outlined in December of 2021 and extended recently in December 2022 to 2023. It’s unclear if those are going to be morphed or evolve into more permanent extensions on a program level, but it does look like the State Department recognizes the importance of getting rid of in-person interviews across the board for all applicants. There’s also movements and domestic work to revalidate visas domestically, which was kind of a longstanding practice dating back to the early 2000s. There’s been no official word on that, but that is definitely something that we’re monitoring closely.

More importantly, like Dave said, as of May 12, the U.S. government’s no longer going to require international arrivals to show proof of the COVID-19 vaccination or status. That’s a major announcement and major shift that falls in line with the domestic policies around the COVID emergency and the U.S. government recognizing that it’s no longer an emergency level for the government purposes.

Wagner: So what does this mean, Nate, for our average employees — what does this mean if someone has to get a visa? Is this good news or bad news?

McKinlay-Roy: Well, overall, it’s good news. I think generally speaking, you’re going to have local issues depending on the consulate. What happens in the consular posts in India is going to be different than what happens in Accra, Ghana. But generally speaking, what we’re going to see is a more flexible and adaptive State Department willing to consider more in-person waivers for interviews, less requirements, hopefully faster processing times and hopefully the Department of State resourcing and staffing up worldwide, again, with the global emergency now recognized by the World Health Organization as not being one that we need to be preventative, but more treating in less predictive or less prohibitive and more reactive to it being a disease we have to live with.

Wagner: This also plays into not just nonimmigrant visa stamping, H-1Bs, not TNs as much, but L-1s. It’s not as much even just speeding up the nonimmigrant visa processing; it’s also immigrant visa processing internationally. Department of State is making a huge push to make sure that those immigrant visas or green cards that are being issued by the Department of State, those are being processed much faster.

We’ve had a report recently that the U.S. consulate it in Montreal, they are actually scheduling immigrant visa appointments for about two to three months out, which is a huge benefit and it’s increased the processing substantially from what it was during COVID — over a year. So two to three months is a huge, huge benefit to individuals that have to get an immigrant visa in in Canada. Dave, what other specifics do we have for consulate updates?

McKinlay-Roy: One thing before I go into more specific updates, I would just say, for anyone listening, local conditions still matter, so regardless of the World Health Organization or the U.S. government saying the emergency is over, local conditions will still drive processes. For instance in, let’s say, Accra, Ghana, where you have more of a likelihood where the pandemic might still be a problem, you’re still going to have to deal with local restrictions, local conditions, processing times and the U.S. government is going to have to work around it.

BAL: In their conversation, Wagner and McKinlay-Roy provided more detail about efforts to reduce wait times around the world and discuss the availability of third-country processing and the outlook for the coming months.

Global news

UAE announces Emiratization fines

In the United Arab Emirates, officials announced they will fine employers who do not meet Emiratization requirements up to 500,000 dirhams, or about US$136,000. Emiratization rules require employers with 50-plus employees to increase the number of Emirati employees in skilled positions by 1% every six months. Employers are expected to achieve a 10% Emiratization rate by the end of 2026. Employers who do not meet their targets may be fined and require to make an additional financial contribution for each Emirati not appointed.

Immigration fees waived

The Canadian government has waived immigration fees for family members of Canadians who fled Sudan in the wake of recent violence. These foreign nationals can apply for temporary residence without paying processing fees if they left Sudan on or after April 15, 2023, and are currently outside of the country. Those who arrive in Canada before July 15 will also be eligible to apply for an open work permit, study permit or permanent residence under the family class without paying processing fees.

Blue Card rules simplified

The Swedish government said it would simplify the rules for obtaining an EU Blue Card later this year. Authorities plan to allow highly skilled foreign officials employed for more than six months to apply for a Blue Card and individuals to convert other work authorizations to a Blue Card without the formal application process, among other changes. These rules will go into effect on Nov. 18 and are intended to attract highly skilled foreign nationals to live and work in the country.

Global news roundup

• France has increased its monthly minimum wage.
• Singapore has announced that Saudi nationals will be visa-exempt starting in June.
• Nigeria has updated its online portal for submitting applications for certain visas and passports.

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