In this edition, find the latest news on the extension of certain Covid-19 flexibilities, the release of another round of frequently asked questions from the DOL’s Office of Foreign Labor Certification, the DHS’s designation of Ethiopia for Temporary Protected Status, and more.
USCIS Extends Certain COVID-19-Related Flexibilities Through January 23, 2023
U.S. Citizenship and Immigration Services (USCIS) announced that it is extending certain COVID-19-related flexibilities through January 24, 2023, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023:
- Requests for Evidence
- Continuations to Request Evidence (N-14)
- Notices of Intent to Deny, Revoke, Rescind, Terminate (regional centers), or Withdraw Temporary Protected Status
- Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant
In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:
- The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
- USCIS made that decision between November 1, 2021, and January 24, 2023.
Reproduced-signature flexibility announced in March 2020 became permanent policy on July 25, 2022.
- USCIS alert, Oct. 24, 2022. https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-0
OFLC Releases Round 2 FAQ on Job Order Filing and Processing Under H-2A Final Rule
On October 25, 2022, the Department of Labor’s Office of Foreign Labor Certification (OFLC) issued a set of frequently asked questions (FAQs), “Round 2: Job Order Filing and Processing,” associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.
The FAQ notes:
- Employers and their authorized attorneys or agents must submit H-2A job orders (H-2A Agricultural Clearance Order, Form ETA-790/790A) using the electronic method designated by the OFLC Administrator, unless a specific exemption applies. Currently, the Foreign Labor Application Gateway (FLAG) System is the OFLC Administrator’s designated electronic filing method, the FAQ states. Only employers that the OFLC Administrator authorizes to file by mail due to lack of internet access, or authorizes to file using a reasonable accommodation due to a disability, would be permitted to file using those other means.
- How-to content, including videos posted on YouTube, is available in the “Support” area of the FLAG homepage to guide users through such system features as creating an account, logging in, and creating and joining a network. In joint-employer situations, the FAQ states, only one job order should be submitted for the job opportunity, with each employer identified in the job order, as explained in the Form ETA-790A General Instructions.
- Employers and their authorized attorneys or agents must submit completed job orders (i.e., Forms ETA-790 and ETA-790A) to the National Processing Center no more than 75 calendar days and no fewer than 60 calendar days before the employer’s first date of need, except in emergency situations that satisfy certain criteria.
The FAQ also includes details on signatures, timeframes, housing inspections, wage rates, collective bargaining, State Workforce Agency processing, and withdrawal requests.
- OFLC Round 2 FAQ. https://bit.ly/3DJNIFY
- H-2A Final Rule, Wage & Hour Division, 87 Fed. Reg. 61660 (Oct. 12, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf
DHS Designates Ethiopia for Temporary Protected Status
The Department of Homeland Security announced the designation of Ethiopia for temporary protected status (TPS) for 18 months. Only individuals who were already continuously residing in the United States as of October 20, 2022, will be eligible for TPS.
This is the first TPS designation for Ethiopia. The 18-month designation will be effective on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and work authorization. TPS applicants must meet all eligibility requirements and undergo security and background checks.
- DHS notice, Oct. 21, 2022. https://www.dhs.gov/news/2022/10/21/dhs-designates-ethiopia-temporary-protected-status-18-months
USCIS Issues Filing Guidance for CW-1 Petitions Seeking to Extend Status
U.S. Citizenship and Immigration Services (USCIS) announced on October 18, 2022, that it will consider certain CW-1 petitions seeking an extension of status for temporary workers present in the Commonwealth of the Northern Mariana Islands (CNMI) to be filed on time, even if USCIS receives them after the worker’s current period of CW-1 petition validity expires.
USCIS said it is providing this limited accommodation to address current temporary labor certification (TLC) processing delays at the Department of Labor (DOL). USCIS is exercising its discretionary authority to excuse late filings of CW-1 petitions (petitions USCIS receives after the current CW-1 status expires) by employers in the CNMI, only if:
- The TLC application was filed with DOL at least 60 days before the requested start date;
- The petition is otherwise properly filed and includes an approved TLC; and
- USCIS receives the petition no later than 30 days after the date of TLC approval, or by November 15, 2022, whichever is earlier.
If an employer files an extension petition meeting these requirements, the CW-1 worker may continue employment with the same employer for up to 240 days beginning on the expiration of the authorized period of stay, pending adjudication of the petition (or, in the case of a non-frivolous petition for extension of stay with change of employer, until USCIS adjudicates the petition).
- USCIS alert, Oct. 18, 2022, https://www.uscis.gov/newsroom/alerts/filing-guidance-for-cw-1-petitions-seeking-to-extend-status
USCIS Clarifies CW-1 Policy on Temporary Departure Requirement
On October 27, 2022, U.S. Citizenship and Immigration Services (USCIS) clarified its implementation of the requirement that Commonwealth of the Northern Mariana Islands (CNMI) workers leave the United States for at least 30 days after two renewals of their CNMI-Only Transitional Worker (CW-1) visa classification.
Effective immediately, USCIS said, the only CW-1 petitions that USCIS will classify as consecutive petitions for purposes of the temporary departure requirement are approved CW-1 petitions that have a starting validity date on or after June 18, 2020. Any extension of CW-1 status granted on or after June 18, 2020, will be considered a consecutive petition if the extension has a starting validity date on or after that date (and not backdated before that date).
USCIS provided an example. If USCIS approved a petition on July 1, 2020, but the petition was backdated to grant status from October 1, 2019, the agency would consider that petition approved as of the earlier validity date of October 1, 2019. Therefore, this petition would not apply toward the temporary departure requirement.
- USCIS alert, https://www.uscis.gov/newsroom/alerts/uscis-will-only-consider-cw-1-petitions-approved-and-with-starting-validity-on-or-after-june-18-2020
- USCIS Policy Update on CW-1 Departure Requirement, https://www.uscis.gov/news/alerts/uscis-policy-update-on-cw-1-departure-requirement