Business Immigration in a Minute by Honigman LLP

• The Department of State recently released the March 2022 Visa Bulletin.  In addition to the final action dates and dates for filing charts for employment-based immigrant visa and adjustment of status cases, it contains notes on the diversity visa category and DV-2022 results. Notably, EB-2 India final action dates will advance by four months in March, whereas EB-3 India final action dates will remain unchanged. Additionally, the dates for filing in March will also remain virtually unchanged from last month. All first employment-based preference countries of chargeability remain current for March. For March 2022, employment-based applicants must use the dates for filing chart for adjustment of status applications.
  
  
• U.S. Citizenship and Immigration Services (“USCIS”) has begun allowing H-1B registrants (employers) to access myUSCIS registrant accounts ahead of the upcoming H-1B registration period. As a reminder, the cap-subject H-1B registration window will run from March 1, 2022 at 12:00 PM EST to March 18, 2022 at 12:00 PM EST. Please reach out to your Honigman LLP immigration attorney as soon as possible if you wish to have an electronic registration completed for an employee or prospective employee. USCIS will notify employers and their authorized representatives of selected registrations by March 31, 2022.
  
  
• USCIS issued guidance encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status application to the first or second employment-based categories because there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (October 2021 – September 2022). The guidance includes information on who can file, filing locations, and more. Notably, the guidance clarified that if USCIS grants an applicant’s request to transfer the underlying basis of his or her Form I-485 to a different employment-based category, the transfer request resets the 180-day clock for eligibility under the portability provisions of the American Competitiveness in the Twenty First Century Act.
  
  
• Recently, the American Immigration Lawyers Association (“AILA”) has received reports that applicants are receiving approved employment authorization documents (“EADs”) that do not include advance parole (“AP”) travel authorization, even though applicants requested both benefits. Previously, when an applicant requested both an EAD and AP, USCIS would issue a “combination card” that included both employment and travel authorization in one document where eligible. AILA has been advised by USCIS that this processing change is intentional as the agency is working through the EAD backlog and is prioritizing EAD adjudication as it seeks to avoid applicants experiencing a lapse or prolonged lapse in employment authorization. Presently, USCIS has not advised on the scope or duration of this procedural change.
  
  
• The Department of Homeland Security (“DHS”) recently published a notice of proposed rulemaking in the Federal Register on how it will apply the “public charge” ground of inadmissibility. The proposed rule requires adjudicators to only consider certain cash benefits in determining if an individual is subject to public charge inadmissibility. The proposed rule excludes the consideration of noncash benefits from the public charge inadmissibility determination, such as food and nutrition assistance, the Children’s Health Insurance Program, most Medicaid benefits, housing benefits and transportation vouchers, pandemic assistance, tax credits and deductions, and other earned benefits. The proposed rule also indicates that DHS will not seek to apply the public charge determination to applications to change or extend nonimmigrant status.

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