Business Immigration Monthly – October 2022 – Investment Immigration

Form I-9 Employee Eligibility Verification Update

The Department of Homeland Security (DHS) announced that it is
extending the COVID flexibilities for Form I-9 completion until
July 31, 2023. These flexibilities allow employers to use methods
other than in-person physical document inspection, such as viewing
an employee’s identity and work authorization documents over
video link, via fax or email, or other remote viewing, when
completing the Form I-9 verification process for remote workers. An
employer is expected to complete the in-person document
verification of employees who physically report to work at a
company location on any regular consistent or predicable basis.

If the employment relationship ended before the employer is able
to inspect and verify in-person the employee’s documents of
identity and work authorization, the employer may add a note of the
circumstances to the Form I-9.

Since November 7, 1986, newly hired employees are required to
complete a Form I-9, Employment Eligibility
Verification, on their first day of hire, and within three
business days provide documentation of their identity and
employment eligibility following a list of acceptable documents. Failure to
comply with the Form I-9 requirements subjects an employer to
possible fines and penalties should a government audit occur.

USCIS also announced that the current version of the
Form I-9, which states in the upper right corner an expiration date
of October 31, 2022, may continue to be used while USCIS is working
on a new version of the form. We will update you when an updated
version of the Form I-9 is released.

The Number of H-2B Temporary Nonagricultural Worker Visas to be
Increased for FY2023

DHS recently announced that it will soon be issuing a regulation
to allow an additional 64,716 H-1B visas for fiscal year (FY) 2023
(October 1, 2022 to September 30, 2023). With this new allocation,
20,000 visas will be reserved for workers from El Salvador,
Guatemala, Haiti, and Honduras and the remaining 44,718 visas will
be available to workers who had an H-2B visa or H-2B status during
the last three fiscal years. Generally, H-2B visas are capped at
66,000 in a fiscal year.

The H-2B visa is available to a foreign worker who would hold a
seasonal position or work in a position having a one-time
occurrence or intermittent need. Before sponsoring a foreign worker
for an H-2 visa or status, the employer must demonstrate to the
U.S. Department of Labor (DOL) that there are insufficient U.S.
workers willing, able, qualified, or available for the position,
and the hiring of a foreign worker will not adversely affect wages
and working conditions of U.S. workers in a similar position. The
H-2B visa classification is often used by the hospitality and
tourism, landscaping, and seafood processing industries.

The Biden Administration has created an H-2B Worker Protection
Taskforce to review the H-2B program. It is anticipated that
recommendations from the taskforce to improve safeguards in the
H-2B program for both foreign workers and U.S. workers will be
noted in the forthcoming regulation.

Warnings in the November Visa Bulletin Update

The U.S. Department of State (DOS) recently issued the Visa Bulletin for November 2022. The Visa
Bulletin is issued on a monthly basis and summarizes the
availability of immigrant visas (a/k/a “Green Cards”) for
both family and employment-based cases for a given month. Notable
changes in the employment-based categories include the
following:

D. EMPLOYMENT FOURTH PREFERENCE (SR) RELIGIOUS WORKERS CATEGORY
EXTENDED H.R. 6833, enacted on September 30, 2022, extended the
Employment Fourth Preference Certain Religious Workers (SR)
category until December 16, 2022. No SR visas may be issued
overseas, or final action taken on adjustment of status cases,
after midnight December 15, 2022. Visas issued prior to
that date will be valid only until December 15, 2022, and all
individuals seeking admission in the non-minister special immigrant
category must be admitted (repeat admitted) into the United States
no later than midnight December 15, 2022. The SR category is
subject to the same final action dates as the other Employment
Fourth Preference categories per applicable foreign state of
chargeability.

Persons in this category must adjust or receive their immigrant
visa overseas before December 16, 2022.

E. VISA AVAILABILITY IN THE EMPLOYMENT SECOND CATEGORY (EB-2).
Increased demand in the Employment Second category may
necessitate the establishment of a worldwide final action
date in the coming months to hold number used within the
maximum allowed under the Fiscal Year 2023 annual limit. This
situation will be continually monitored, and any necessary
adjustments will be made accordingly.

Please note that if this occurs, the EB2 World category, which
has been “Current” for many years, would become limited
by a final action date and only those with priority dates before
the listed date would be able to adjust or be issued an immigrant
visa.

Further information about a retrogression in the EB-2 World
category will be contained in future Masuda Funai Business
Immigration Updates when it becomes available.

U.S. Court of Appeals for the D.C. Circuit approves the
Continuation of STEM OPT

The U.S. Court of Appeals for the D.C. Circuit recently
confirmed that DHS has the power to determine the time and
conditions for an F-1 student’s stay in the United States,
including periods of employment authorization, called Optional
Practical Training (OPT). The appellate court recognized that the
Immigration and Nationality Act (INA), as amended, specifically
allows post-completion practical training and DHS has the authority
to determine the duration and conditions of an OPT program,
including an OPT extension for graduates of science, technology,
engineering, or mathematics (STEM) programs.

After the Obama Administration extended the length of the STEM
OPT program from 17 months to 24 months, the plaintiffs in the
lawsuit challenged DHS’s authority to grant OPT contending such
program “requires employers to provide foreign guest workers
OPT mentoring without requiring that such program be provided to
American workers.” The court noted OPT is an opportunity for
foreign students “to achieve the objectives of their courses
of study by allowing them to gain valuable knowledge and skills
through on-the-job training that may be unavailable in their home
countries” and students have been authorized to “work at
jobs related to their studies since at least 1947”.

Under OPT, some F-1 students may be authorized to work up to
three years — an initial one-year period of regular OPT
authorization is available to certain F-1 students; then students
who received a degree in a designated (STEM) field and whose employer is
registered in E-Verify may be eligible for an additional
24-month extension of OPT.

It’s Time for the “Green Card” Lottery!

The DOS has released its instructions for the Diversity Immigrant
Visa “Green Card” Lottery Program (DV-2024) for fiscal
year 2024 (October 1, 2023, through September 30, 2024). The
Lottery Program for DV-2024 registration will be open for only 34
days from October 5, 2022, at noon (EST) through close at noon
(EST) on November 8, 2022. Applicants from eligible countries are
encouraged to apply. While there is no fee to apply for the Lottery
Program, only one application per individual is permitted.

The DOS makes 55,000 “Green Cards” available annually
to persons from countries having low rates of immigration to the
United States and who have either completed a 12-year course of
formal elementary and secondary education, or who within the past
five years have two years of work experience in an occupation that
requires at least two years of work experience to perform.
Applicants for Diversity Visas are chosen by a computer-generated
random lottery drawing. Beginning in May 2023, applicants can check
the status of their registration online via Entry Status Check at
to determine
whether they were selected (a/k/a “winning the lottery”).
The Entry Status Check is the ONLY manner in which entrants will be
notified of their selection. The DOS will NOT mail or email any
selection notification or correspondence to the lottery winners.
Furthermore, the Entry Status Check will be the only way in which
selected individuals will be provided further instructions on
Immigrant Visa procedures – how to convert the lottery win to
a Green Card.

Additional detailed information on the FY2024 Diversity
Immigrant Visa Lottery is available in a Masuda Funai Client Alert
– https://www.masudafunai.com/articles/dv-2024-green-card-lottery-open-from-october-5th-to-november-8th-for-eligible-applicants.

USCIS Extends Temporary Validity of “Green Card”
Renewals due to Processing Delays

As noted in the 2022 Annual Report of the USCIS Ombudsman,
as of December 31, 2021, U.S. Citizenship & Immigration
Services (USCIS) had 725,418 applications to renew or correct a
Permanent Resident Card (“Green Card”) to process. USCIS
processed only 82,609 of such applications in the first quarter of
FY2022. Noting heavy backlogs and limited processing capacities,
USCIS is automatically extending the validity of the cards to 24
months for Lawful Permanent Residents (LPR) who apply to have filed
a Form
I-90, Application to Replace Permanent Resident
Card.

An LPR who properly filed a Form I-90 to replace the Green Card
receives a receipt notice which grants an interim extension of the
validity of the Green Card. These receipt notices can be presented
with an expired Green Card as evidence of continued permanent
resident status for employment and international travel.

Previously, the Form I-90 receipt notice provided a 12-month
extension of the validity of the Green Card. Now, with newly filed
Forms I-90, the USCIS is extending the validity of a Green Card for
24 months. For those LPRs whose Form I-90 remains pending as of
September 26, 2022, USCIS will be mailing out amended receipt
notices indicating the Green Card is valid for 24 months post
expiration. This extension is expected to help the applicants
affected by longer USCIS processing times by providing them with
proof of lawful permanent resident status as they await their
renewed Green Card.

An LPR who no longer has the Green Card (lost, stolen, or for
other reasons) and needs evidence of
permanent resident status while awaiting the issuance of the
replacement Green Card, may request an appointment with a USCIS
Field Office by contacting the USCIS Contact Center for issuance of an
Alien Documentation, Identification, and Telecommunication (ADIT)
stamp.

Extension of Temporary Waiver of “60-Day Rule” for
Physician Signature on a Report of Medical Examination and
Vaccination Record (Form I-693)

Individuals applying for Permanent Resident status (“Green
Card”) while in the United States via a process called
“adjustment of status” are required to provide USCIS with
results of a medical examination to demonstrate they are free from
any public health grounds that render the applicant inadmissible
under INA 232 and INA 212(a)(1). A USCIS-approved
physician/civil surgeon must sign the completed Report of
Medical Examination and Vaccination Record (Form
I-693), no more than 60-days prior to the submission of the
Green Card application to USCIS.

To accommodate applicants’ difficulties in completing the
medical examination during the COVID pandemic and related
processing delays by the USCIS, on December 9, 2021, USCIS waived
the requirement that the medical examination results be signed by
the physician within 60 days of submission. USCIS is now extending
this temporary waiver until March 31, 2023.

The medical examination results continue to only be valid for
two years from the date the physician/civil surgeon signs the Form
I-693. If USCIS is unable to approve the adjustment of status
application before the medical examination expires, the adjustment
of status applicant is required to complete a new medical
examination.

Special Immigration Process for Venezuelan Nationals

DHS recently launched a program for nationals of Venezuela to come
to the United States under a humanitarian process.

To qualify, the Venezuelan national must not be a permanent
resident or dual national in any other country; not have been
ordered removed from the United States within the past 5 years or
be subject to an inadmissibility bar based upon a prior removal;
not have unlawfully crossed the Mexican or Panamanian borders after
October 19, 2022; not have crossed irregularly into the United
States between ports of entry after October 19, 2022; and satisfy
U.S. security vetting. The spouse or common-law partner and their
unmarried children under age 21 of the Venezuelan national may also
qualify for this humanitarian process. Children under the age of 18
must be traveling with their parent or legal guardian.

The process to request the travel authorization is commenced by
a U.S.-based supporter filing a Declaration of Support
(Form
I-134) on-line for each individual with U.S.
Citizenship & Immigration Services. The U.S. supporter must be
a U.S. citizen or national, lawful permanent resident, asylee, or
hold Temporary Protected Status or be a recipient of deferred
action, such as DACA, or Deferred Enforced Departure (DED). The
U.S. supporter must demonstrate sufficient financial and other
resources to support the Venezuelan national during the parole
period of up to two years, and also satisfy U.S. security vetting.
Additional non-financial support to be contemplated may include
arranging for safe and appropriate housing, assisting with access
to education, English language studies, ensuring healthcare needs
are met and facilitating the completion of required paperwork to be
able to work in the United States.

If Department of Homeland Security deems the I-134 is
sufficient, it will contact the Venezuelan national via email with
instructions on the next steps. Each Venezuelan national must
attest to having been vaccinated for measles, polio and the first
dose of a COVID-19 vaccine or is eligible for an exception to the
vaccine requirements. Also, each traveler must have a valid,
unexpired passport. Arrival to the United States must be to a U.S.
airport, not a land border.

Upon arriving in the United States, the Venezuelan national may
apply for work authorization. The authorization to remain in the
United States is limited to two years. Separate authorization is
needed for any international travel.

MFEM NEWS

Kathleen Gaber Speaking at the Alliott Alliance Worldwide
Conference

Ms. Kathleen Gaber, a partner in the Masuda Funai Immigration
Group, will be speaking on a panel at the Alliott Alliance
Worldwide Conference being held in Washington, D.C. from November
6-9, 2022. The Alliott Global Alliance is one of the world’s
fastest-growing global alliances with 215 law and accounting member
firms in 95 countries. Ms. Gaber will be speaking on a panel with
Mary Katherine Ham, a nationally prominent journalist, author, and
CNN political commentator, about how American Populism influences
and affects global policy and trends.

Bob White Presented on an H-1B Panel and Coordinated Government
Sessions during the NAFSA Region V Conference

Mr. Bob White, a partner in the Masuda Funai Immigration Group,
participated in a session on H-1B Current Trends during the NAFSA:
Association of International Educator’s Region V Conference in
Milwaukee, Wisconsin. As part of the session, Mr. White discussed
the current issues with the H-1B program, including increased
prevailing wages, qualifying occupations, audits, and consular
processing delays.

Additionally, Mr. White is one of the Regulatory Liaisons for
NAFSA Region V. As such, Mr. White coordinated the government
sessions for the Conference with numerous representatives from the
USCIS Ombudsman’s Office, DOS Visa Office/Consular Affairs, DHS
Student and Exchange Visitor Program (SEVP), Customs and Border
Protection (CBP) and the Commerce Department. A record number of
government speakers participated in this year’s Conference as
it was the first in-person conference since prior to the COVID
pandemic.

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