Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:
1. Citizenship and Immigration Services (USCIS) Launched Online Appointment Request Form
On August 21, USCIS launched a new online form for individuals to request in-person appointments at their local field offices. Instead of calling the USCIS Contact Center, individuals can use the online appointment request form to request an in-person appointment at a field office for ADIT stamps, Emergency Advance Parole, and more. However, it is important to note that the requested date and time cannot be guaranteed. USCIS will review the online appointment request form and schedule the individual for an in-person appointment date based on the local field office’s availability.
2. The DOL Office of Foreign Labor Certification (OFLC) Issued New FAQ on Labor Condition Applications and Rescinded All FAQs Issued in Response to COVID-19
OFLC issued a new Frequently Asked Question (FAQ) on Labor Condition Applications (LCAs). On the same day, OFLC announced that the processing centers have resumed normal processing operations and rescinded all COVID-19 FAQs, which include Round 1 (published March 20, 2020); Round 2 (published April 1, 2020); Round 3 (published April 9, 2020); and Round 4 (published June 3, 2020). All other FAQs not related to COVID-19 remain in full effect.
The new FAQ does not materially change the now-rescinded FAQs, but provides additional clarification on LCAs, including the following:
- LCAs must be posted for 10 consecutive calendar days, not business days (unless direct notice is provided such as an e-mail or a Collective Bargaining Agreement).
- Employers that post LCAs electronically may use “any means ordinarily used to communicate with its employees about job vacancies or promotion opportunities, including its website, electronic newsletter, intranet, or e-mail.”
- If employees are provided individual direct notice (i.e., e-mail) of the LCA, notification is only required once and does not have to be provided for 10 calendar days.
- If an H-1B worker works from home and regularly commutes to the worksite listed in the LCA, then this home worksite will generally be considered within the area of intended employment, and thus, no amended petition is generally required. The DOL states that the “area of intended employment is the area within normal commuting distance to the place of employment; there is no rigid measure of distance for ‘normal commuting distance.’”
- DOL reminds employers that they attest with the LCA that employing H-1B, H-1B1 or E-3 nonimmigrant workers will not adversely affect the working conditions of similarly employed U.S. workers. Additionally, these nonimmigrant workers must be afforded working conditions on the same basis as offered to similarly situated U.S. workers. For example, if employers permit H-1B workers to telecommute, then similarly situated U.S. workers must receive that same benefit. Employers must also offer similarly situated U.S. workers the option to relocate outside of the area of intended employment if it allows H-1B workers to do the same.
3. USCIS Conducted a Second H-1B Cap Lottery
On August 1, 2023, USCIS announced that it ran a second lottery due to an insufficient number of filings to meet the 85,000 quota. USCIS selected 110,791 registrations in its initial drawing in March and selected 77,609 registrations in the second round, providing an overall selection rate of 24.8%. Employers must file H-1B petitions for second-round selected registrations between August 2ndand October 31st.
4. USCIS Announced a New Version of Form I-9, Employment Eligibility Verification
USCIS announced that employers may begin using the new Form I‑9 as of August 1, 2023. The new form incorporates an alternative procedure for E-Verify employers to examine employee documents remotely. Employers can find detailed information regarding the alternative procedure on the Federal Register notice published on July 25, 2023.
USCIS noted that employers may continue to use the I-9 dated “10/19/2019” through October 31, 2023. Beginning November 1, 2023, only the new Form I‑9 dated “08/01/23” may be used.
5. Extension and Redesignation of Ukraine and Sudan for TPS
The Department of Homeland Security (DHS) announced the TPS extension and redesignation of Ukraine and Sudan:
- Extension: The extension applies to existing beneficiaries of TPS. The 18-month designation of Ukraine and Sudan for TPS begins on October 20, 2023, and will remain in effect for 18 months, ending on April 19, 2025.
- Re-registration: Re-registrants should timely re-register during the registration period–August 21, 2023 to October 20, 2023—to avoid potential employment authorization gaps.
- Redesignation: The redesignation period will begin on October 20, 2023, and will remain in effect for 18 months, ending on April 19, 2025. The redesignation of Ukraine and Sudan allows certain individuals to file initial applications to obtain TPS.
6. OFLC Issued Hawaii Wildfire Disaster Guidance for Employers Whose Filings Are Affected by the Wildfires in Hawaii
OFLC issued FAQs to support employers who are affected by the wildfires in Hawaii. OFLC provided detailed information on communication methods to employers as well as some flexibilities in terms of filings. For example, OFLC will grant extensions of time and deadlines for employers affected by the wildfires in Hawaii. In addition, OFLC may extend PERM filing deadlines. For employers who initiated their recruitment processes within the 180 days preceding August 21, 2023, OFLC may accept recruitment completed within 60 days after the regulatory deadlines. This flexibility would provide employers with sufficient time to complete the mandatory recruitment and file their PERM applications. OFLC noted that the extension applies only to areas for which a “major disaster declaration” has been made with respect to the wildfires in Hawaii. OFLC may extend deadline flexibility to employers who are outside a Federal Emergency Management Agency-designated “major disaster” area, but are impacted in such a way as to affect their ability to meet OFLC deadlines. Such employers may submit a written request for extension flexibility, following the communication procedures.
7. USCIS Issued Guidance on Evidentiary Requirements for Physician National Interest Waiver
USCIS updated its guidance to confirm the evidentiary requirements for physicians seeking a national interest waiver of the job offer requirement based on work in an underserved area or at a U.S. Department of Veterans Affairs facility.
- If a physician has yet to start the relevant work, the required employment contract or employment commitment letter must be issued and dated within 6 months before the filing date of the petition.
- If a petitioner has yet to start the relevant work, the required public interest letter from a federal agency or state department of public health must be issued and dated within 6 months before the filing date of the petition.
USCIS clarified that the 6-month requirement does not apply to work that the physician has already started or completed before the petition filing date.
Seyfarth will offer more details and insights once more information is available.