A series of important developments in US immigration law have already marked the start of 2022 and more can be expected.
In January, the Biden administration unveiled a series of policies aimed at attracting and retaining international talent in STEM (science, technology, engineering and mathematics). United States Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) have made progress in Deployment of work authorization for dependent spouses of category E (Treaty Trader or Treaty Investor) and L (Intra-company Transfer) visa holders, eliminating the need for a separate work permit application. Meanwhile, the Department of Justice (DOJ) remained active in enforcing the anti-discrimination immigration provisions of the Immigration and Nationality Act (INA), with several regulations in 2021 involving allegations of discrimination preventing discrimination against U.S. workers and a renewed focus on investigating allegations of document abuse in Form I-9 completion, maintenance, and reverification. This overlaps with the continued I-9 flexibility in response to the COVID-19 pandemic granted by Immigration and Customs Enforcement (ICE), which remains in effect until April 2022. This all follows ongoing discussions in Congress on possible immigration. reform (as most recently reflected in the Build Back Better Bill).
Below are five areas to watch over the coming year.
STEM-related policy changes
New policies put in place by the Biden administration aim to provide greater predictability and clarity to international STEM talent pathways, through the F-1 student, J-1 exchange visitor, ability O-1 Extraordinary and EB-2 National Interest Exemption Immigrant Visa Categories:
F-1 ROD OPTION: The Department of Homeland Security (DHS) announced 22 new areas of study added to the STEM Optional Practical Training (OPT) program to enhance the contributions of non-immigrant students studying in STEM fields. These new fields, listed in a Federal Register note, include bioenergy, forestry, human-centered technology design, cloud computing, climate science, earth systems science, economics, computer science, geobiology, data science and business analysis. DHS is also creating a process for the public to request that a degree be added to or removed from the list of designated degrees.
D-1 exchange visitors: The Department of State will allow J-1 exchange visitors enrolled in a STEM pre-doctoral program to qualify for a extension up to 36 months for practical training purposes in 2022 and 2023. This expansion of the J-1 program was rolled out in response to a joint statement by school principals in support of international education and pressure from department-appointed sponsors to increase STEM opportunities for international students.
Visa O-1: USCIS released detailed advice describing how entrepreneurs can qualify for the O-1 classification (individuals of extraordinary ability or achievement), including references to specific sources of evidence in STEM-related fields. The new guidance also expands on what constitutes a “field” of endeavor to include achievement in different but related professions. Additionally, it clarifies the use of comparable evidence to meet regulatory criteria (see O-1 Visas Abound: USCIS Provides Detail Guidance on O-1 Visa Eligibility).
Extension EB-2 NIW: USCIS announced updated tips on the adjudication of National Interest Waiver (NIW) applications regarding job offers and labor certification requirements for senior educated professionals and individuals with exceptional ability, particularly in STEM-related fields. The new guidelines give certain evidentiary considerations to individuals with advanced degrees in STEM fields, particularly in targeted critical and emerging technologies, as determined by the National Council on Science and Technology or the National Security Council. According to the new guidelines, USCIS also considers an advanced degree in a STEM field related to a proposed business as a “particularly positive factor” to show that the individual is well-positioned to advance a business of national significance.
Spouse E and L work permit
USCIS announced new direction in November 2021 clarifying that L-2 and certain E-2 spouses will no longer require Employment Authorization Documents (EADs) to work. The guidelines were the result of a court-approved settlement of ongoing litigation in response to extraordinarily long delays in obtaining EADs. As of January 31, 2022, spouses entering the United States in L-2 or E-2 status may obtain border work authorization by requesting CBP to assign them a “spouse” designation on their I-94 file. which can be used for Form I-9 for employment eligibility verification purposes.
Department of Justice Immigration Anti-Discrimination Enforcement
While the DOJ and its Immigrant and Employee Rights Section have begun to diversify the scope of investigations, their enforcement of the INA’s anti-discrimination provisions remains focused on protecting U.S. citizen workers. Several settlements in 2021 involved allegations of discrimination against U.S. citizen workers. The settlements resolved reasonable cause findings of discrimination against U.S. workers in Program Electronic Management (PERM) recruitment methods and worker sponsorship programs for H-2B (non-agricultural) visas. temporary), respectively. They reflect a continuing trend following settlements that resolved allegations of discrimination in the PERM recruitment methods of several companies, despite adhering to Department of Labor certification regulations.
ICE I-9 Flexibility Continues
On March 20, 2020, DHS announced that it would exercise its prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification Form I-9. This policy has been periodically extended, most recently through April 30, 2022. Under this guidance, employers can complete the Form I-9 verification process remotely for employees who work exclusively in a remote setting due to COVID-19 precautions. However, employers must conduct an in-person verification of the identity and employment eligibility of these employees within three days of their return to the workplace.
More business immigrant visas would become available under the latest version of the Bridging Bill Building Back Better. If approved by parliament and passed as is, the bill would make more immigrant visas available in:
Recovery of unused visa numbers from 1992 to 2021;
Maintaining the availability of diversity visas for fiscal years 2017 to 2021; and
Allow people with approved employment-based immigrant visas and priority dates more than two years away to file adjustment of status applications by paying an additional $1,500 fee.
The bill would also significantly increase many filing fees. Rather than depositing these fees into the USCIS account, the additional fees would be deposited into the general funds of the US Treasury. Another attempt at immigration reform was introduced by House Republicans, the Dignity Act. The Dignity Act offers pathways to permanent residency and citizenship for some undocumented people in exchange for greater border security and mandatory E-Verify. The fate of immigration reform remains uncertain and is expected to be a point of contention in the upcoming election.
© 2022 Jackson LewisNational Law Review, Volume XII, Number 73