Episode 39: EAD extensions, Student Visa numbers and the real-world impact of processing delays

It’s Aug. 31, and this is your BAL Immigration Report.

• A temporary policy on employment authorization extensions is set to end.
• Student visa issuance is on the rise.
• A look at the impact of USCIS processing delays.

“These employees that experience a lapse in work authorization may be unable to renew their driver’s license, for example, or even obtain health insurance. In some circumstances, it impedes their ability to leave the U.S. and return without severe consequences.”

—Nassim Mahzoon, BAL Partner

U.S. news

EAD extension policy to expire

A temporary policy providing for longer automatic extensions of some workers’ employment authorization documents is set to expire on Oct. 26. Eligible applicants who have already filed or who request an employment authorization extension on or before Oct. 26 will continue to receive extensions of up to 540 days. Those who file after that date will be eligible for extensions of up to 180 days.

The temporary rule was put in place in May 2022 to address processing delays and case backlogs, which we’ll cover in more depth in this week’s spotlight just ahead.

Foreign student enrollment increases

Foreign student enrollment in U.S. colleges and universities is on the rise. The State Department reported that more than 411,000 F-1 student visas were issued in the 2022 fiscal year, the highest number since 2016, and the trend is expected to continue this year.
In May, U.S. Immigration and Customs Enforcement terminated COVID-era guidance that allowed international students to count more online classes than normal toward a full course of study. The impact of this termination is not known at this point.

Overall, the rising numbers are welcome news for U.S. employers, who benefit from the talent pipeline when these students graduate, especially in STEM fields.

U.S. news roundup

• Axios reported that immigrants are joining the U.S. workforce at a substantially higher rate than native-born workers.
• S. Citizenship and Immigration Services announced updated guidance on the Child Status Protection Act.
• The U.S. Embassy in India acknowledged service disruptions during the transition to a new appointment platform. The embassy encouraged anyone in need of technical assistance to reach out to india@usvisascheduling.com.

Spotlight

Conversation with BAL Partner Nassim Mahzoon: a check on U.S. Citizenship and Immigration Services processing delays — and their impact on employees and employers.

BAL Immigration Report: In November 2021, BAL Partner, Nassim Mahzoon, who leads the firm’s Santa Clara office, wrote an op-ed for the California Business Journal on how USCIS delays were hurting both companies and foreign nationals. She focused specifically on delays impacting work authorization for H-4 and L-2 visa holders, some of whom lost jobs as they waited for their work authorization to be renewed. Mahzoon joined us this week to discuss how the situation has — and has not — improved.

Mahzoon: This is a known issue. These delays are a known issue with the agency, and they’re working behind the scenes to try to alleviate these delays. In doing so, they’ve prioritized certain case types, so we’ve seen a huge improvement in H-4s and L-2 EADs. Additionally, we’ve seen processing improvements in employment-based adjustment of status applications.
Those applications were severely backlogged after the 2020 surge of applicants and due to the advancement of the priority dates. Where we haven’t necessarily seen improvement are the form types that aren’t given priority by the agency at the moment, and those are showing a lack of progress. Those include petitions for alien relatives, petitions to remove conditions on residents and also waivers in asylum applications.

BAL: Some of USCIS’ challenges date to the early days of the pandemic, when staffing and funding issues slowed agency operations. In 2022, USCIS identified backlog reduction as a key priority and moved to expand premium processing, increase the automatic extension period for certain employment authorization renewal requests and hire more officers to review cases.

The agency made some progress, but new challenges have emerged. A recent report from the Office of the Citizenship and Immigration Services Ombudsman concluded that an increase in humanitarian parole requests from nationals of Afghanistan, Ukraine, Venezuela, Haiti, Cuba and Nicaragua have strained agency resources. Mahzoon said in the wake of this change, USCIS must become more efficient and should consider extending the temporary policy on work authorization extensions.

Mahzoon: USCIS uses its discretion to authorize parole to individuals that may otherwise be ineligible for entry to the U.S., for either humanitarian reasons or based on a significant public benefit. We’ve seen under the Biden administration the most significant expansion in lawful pathways for people to enter the U.S. than we’ve seen in many decades. It’s an absolutely necessary program, helping those folks fleeing for political or economic reasons. Unfortunately, the surge in these requests present operational challenges and resource challenges for the agency, these resources which were already limited. The volume and the complexity of the humanitarian requests can be really difficult to predict. These lead to additional resource allocation issues. Short of adding more resources, the agency should continue to expand automatic extensions of work authorization. Ideally, they would extend the temporary rule that’s set to expire this October. The agency should also continue to mitigate inefficiencies with processing and leverage technology where they can to streamline their processing and alleviate adjudication delays. These delays can contribute to a backlog of cases, and that creates even longer wait times for subsequent applicants.

BAL: We asked Mahzoon about the real-world impact of processing slowdowns.

Mahzoon: The impact of USCIS adjudication delays for foreign nationals is significant, and it can lead to a range of challenges for them. Their ability to work and support themselves in the U.S. hinges on their employment authorization, and working beyond the authorized period could lead to potential violations that have downstream impact. I’ve seen this firsthand with my clients. The uncertainty caused by these delays is extremely stressful for them, their families and can hinder their ability to make plans while living in the U.S. These employees that experience a lapse in work authorization may be unable to renew their driver’s license, for example, or even obtain health insurance. In some circumstances, it impedes their ability to leave the U.S. and return without severe consequences. What I see in my practice — and that isn’t talked about as often — is how these work authorization lapses interrupt their careers, including professional development and future opportunities that they may have at work. For U.S. businesses, it’s a huge disruption to take employees off and on payroll and place projects or initiations on hold while these employees wait for their employment authorization. I’d like to note that if an employee is eligible to file for renewal on or before Oct. 26 this year and their EAD category qualifies for the automatic extension, it’s prudent to go ahead and do so. The extra 540 days granted gives peace of mind to everyone involved.

Global news

China ends COVID-19 test requirement

China has ended its requirement for travelers to provide proof of a negative COVID-19 tests to enter the country. The change went into effect on Aug. 30 and is a continuance of the country’s reopening after years of COVID lockdowns. Most recently, authorities have been expanding the list of countries Chinese citizens can visit and increasing the number of international flights into and out of the country.

Brazil postpones visa requirement

Authorities in Brazil have postponed reinstatement of the visitor visa requirement for citizens of Australia, Canada and the United States. The government will continue to exempt Australian, Canadian and U.S. nationals from needing a visa through Jan. 9, 2024. These travelers will require an e-visa to enter Brazil beginning Jan. 10, 2024. Officials expect to open the online e-visa platform at least 30 days before enforcement begins.

Australia, Canada and the U.S. have all reinstated visitor visa requirements for Brazilian nationals. As a general rule, Brazil does not grant visitor visa exempt without reciprocity.

Global news roundup

• Germany said a sharp increase in the demand for Schengen visas is creating longer wait times.
• Italy has announced new EU Blue Card changes.
• Vietnam has undertaken an effort to streamline its work permit procedures.

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