Business Immigration in a Minute by Honigman LLP

• U.S. Citizenship and Immigration Services (“USCIS”) announced that it is again extending flexible deadlines for responding to certain requests and notices from the agency. Petitioners and applicants have an additional 60 calendar days beyond the due date to respond to certain requests and notices that were issued by USCIS from March 1, 2020 through January 15, 2022, including Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke.
  
  
• The Department of Homeland Security (“DHS”) announced that Croatia will become a new participant in the Visa Waiver Program. Starting no later than December 1, 2021, Croatian citizens and nationals will be able to apply to travel to the United States for tourism or business for up to 90 days without a U.S. visa. However, all travelers covered under the Visa Waiver Program must still have a valid Electronic System for Travel Authorization approval to enter the United States.
  
  
• The American Immigration Lawyers Association and a partner law firm recently filed a class action lawsuit in federal district court on behalf of nonimmigrant H-4 and L-2 spouses seeking to immediately reverse the USCIS policy that prohibits H-4 and L-2 spouses from receiving an automatic extension of their employment authorization during the pendency of an application for an extension of work authorization that does not depend upon the approval of an underlying status extension petition. Among other relief, the plaintiffs are seeking the court to declare that USCIS has unlawfully withheld L-2 and H-4 spouses’ automatic extension of employment authorization and to compel USCIS to provide L-2 and H-4 spouses with documentation establishing automatic extension of employment authorization.
  
  
• The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in In the Matter of Florida Detox Centers, Inc. (2017-PER-00236) (Aug. 24, 2021) discussing an employer’s obligation to inquire into whether a U.S. worker applicant meets all of the requirements of the job opportunity being offered to a foreign national employee through the permanent labor certification process. Notably, BALCA explained the circumstances under which an employer may determine that an applicant is unable to acquire the skills required to perform the job opportunity from training. BALCA also discussed the circumstances under which an employer may disqualify an applicant without follow up and when an employer has a duty to inquire further with the applicant to assess their qualifications and ability to acquire the required skills through training.
  
  
• DHS automatically extended the validity of certain Employment Authorization Documents (“EADs”) issued under Temporary Protected Status (“TPS”) for individuals from Syria through March 28, 2022. As a reminder, if an employee is a TPS beneficiary and presents an expired EAD for purposes of I-9 compliance, employers must determine if the EAD has been automatically extended by DHS. If so, the employer must accept the expired EAD for Form I-9 purposes.  Information confirming the automatic extension of TPS EADs and further information regarding completing Form I-9 for TPS recipients can be found here.

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