As we close out 2022 and look ahead to 2023, it is a good time to consider those developments in business- and family-based Immigration Law which will have the greatest impact in the year ahead. Some of the most noteworthy policy changes involving non-immigrant/temporary categories include:
• Reversing Trump-era policies originating with anti-immigrant bias. In 2022, the Biden Administration and the Dept. of Homeland Security under Secretary Mayorkas continued to undo regulations and policies implemented during the previous administration. With respect to H-1B filings, in a reversal from Trump-era efforts to suppress immigration by denying approvable cases, rates of approval returned to pre-Trump levels. To illustrate, before Trump, USCIS denied less than 10% of Petitions for H-1B workers. During the last administration, at the instructions of arch-restrictionist Stephen Miller, denial rates for H-1B’s climbed to nearly 25% (in FY 2018); the denial rates for L-1’s were even higher. The substantive characteristics of the cases had not changed; only the interpretation and application of the regulations changed; from a politically-driven effort to reject approvable cases to a more balanced adjudicatory process premised on law and precedent. Ultimately, the demand of the U.S. economy and U.S. employers for qualified, educated, high-skilled professionals from abroad continued unabated. To review the NFAP report, click here.
• Implementing policies to promote STEM-based immigration. In July 2022, the Biden Administration signaled its immigration-positive approach by amending the USCIS Policy Manual to favor certain non-immigrants of “extraordinary ability” seeking O-1A status. In particular, the Policy Manual was revised to broaden the kinds of evidence that could be presented by applicants in STEM (Science, Technology, Engineering, Mathematics)-focused fields. This revision reflects this Administration’s understanding of the benefits of high-skill immigration to the Nation and the essentiality of immigration to America’s leadership in science, technology, and innovation. In a stark departure from the last Administration, by implementing these broadened standards, USCIS is providing more clarity – and more predictability – to the subset of extraordinary researchers, investigators, scientists, and other STEM-qualified professionals who occupy the top-tier of internationally-recognized talent in their fields. For more resources on the Administration’s STEM initiatives, click here.
• The Changing Workplace: Adapting to Covid, WFH and the virtual office. 2022 continued to see Covid-accelerated moves away traditional office-based work sites to “WFH” or other non-traditional work sites. To complicate matters further, some companies were established as or became no-office companies where even the employer has no fixed headquarters or work site. These new realities compelled the USCIS and DOL to adapt practices which supported the “new normal.” Some of these practices included a re-examination of what is a “material change in the terms and conditions of employment”, de-emphasizing the posting of notices for home-based worksites, accepting scanned copies of ink-signed signatures in lieu of originals, eliminating the need for a second “PIMS” copy when sending petitions to USCIS, broadening the use of digital filings, continuing the Covid-originated 60-day “flexibility” extension for filing deadlines and several other practices which support these changes. To review our more detailed blogpost on this topic, please click here.
• Employment authorization “incident to status” for E/L spouses. In 2022, USCIS announced that, no longer would E-2/L-2 spouses be required to apply for, pay for and receive Employment Authorization Documents to be work legally in the U.S. Instead, E-2/L-2 spouses are now recognized as employment authorized “incident to status.” This means that, the spouse of an E-1/ E-2 or L-1 non-immigrant has permission to work and does not require a separate document to establish eligibility for employment. Later in the year, USCIS and CBP introduced updates to the I-94 system and to its notices to include modified non-immigrant classification codes to connote work authorization i.e. E-2S, L-2S.
• Backlog reduction for H-4’s and H-4/EAD’s. Facing tremendous public pressure, Congressional inquiries and lawsuits, USCIS seems to have adopted new procedures to reduce backlogs for H-4’s and for H-4/EAD’s. In the past, while a Petition for H-1B status could, using Premium Processing, be adjudicated in a matter of weeks, an accompanying application for H-4 status could and did languish for long months. In addition, for H-4 spouses eligible to work, USCIS was taking 6, 8 months and longer to process the I-765 and issue an EAD. 2022 saw a reversal of these trends with some processing centers adjudicating H-4’s concurrently with H-1B’s and taking steps to accelerate the approval and issuance of H-4/EAD’s. This trend, combined with USCIS’ decision to eliminate biometrics for certain I-539 applicants in 2021, have helped H-4 family members to overcome the challenges of excessively long wait times. For resources on the automatic extension of employment authorization for certain H-4, E, and L non-immigrant spouses, please click here.
• Job losses/Mass Lay-offs Effecting H-1B Workers. Recent weeks have seen reports of major job cuts effecting technology workers, some of whom are in the U.S. as H-1B workers. Well known companies such as Twitter, Google, Facebook, Salesforce and other have each announced lay-offs in the 1,000’s. For a person whose U.S. immigration status depends on the continuity of employment, such lay-offs can be devastating. Workers with H-1B visas, in particular, suddenly have a looming 60-day deadline to find another job and employer willing to sponsor them; change their visa status; or return home. USCIS has responded by issuing a guidance to the H-1B workers, to help them navigate the challenges of unexpected termination from employment. To access USCIS guidance on Lay-offs and H-1B workers, click here.