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Immigration Update

Jan 17, 2022 | Immigration Updates

In this edition, find out more about the USCIS’ clarifying guidance on classifying O-1 nonimmigrants as a person of extraordinary achievement in Arts or Motion Pictures and Television, the USCIS holding a listening session on L petition adjudications, the USCIS’ plans for an e-Verify records disposal on April 1, 2022, and more.

USCIS Issues Guidance on Classifying O-1 Nonimmigrants in Arts or Motion Pictures and Television

U.S. Citizenship and Immigration Services (USCIS) clarified guidance on how the agency determines whether an O-1B beneficiary will be evaluated as a person of extraordinary ability in the arts or as a person of extraordinary achievement in the motion picture or television industry when a case has elements of both.

USCIS explained that individuals of extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry may be eligible for O-1B classification. The updated guidance “will help officers and petitioners determine whether a beneficiary falls into the arts category or the motion picture and television category” and “will help with cases that have elements of both classifications, such as actors, directors, composers, or set designers who work in both motion pictures and television and live theater. It will also help officers and petitioners understand where streaming internet productions fall in these categories,” USCIS said.

Among other things, the guidance notes that analysis of whether a production is within the motion picture or television industry (MPTV) is not limited to whether it will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. “While static web materials and self-produced video blogs and social media content generally do not fall into the MPTV category, USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview,” USCIS said. Accordingly, USCIS “may properly consider work on such productions to fall under the O-1B (MPTV) classification.”

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USCIS To Hold Listening Session on L Petition Adjudications

U.S. Citizenship and Immigration Services (USCIS) will hold a listening session on Tuesday, January 25, 2022, from 2 to 3:30 p.m. ET. The listening session is for stakeholders to provide feedback on modernizing and simplifying the regulations governing L petition adjudications. USCIS is seeking input on all aspects of L adjudications, including L-1A managers and executives, L-1B specialized knowledge workers, new office petitions, blanket petitions, and evidentiary issues. USCIS said this is part of a series of listening sessions that USCIS will host in the coming months to seek input on business and foreign worker-related policy considerations.

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DHS OIG Finds That Manual Processing Slowed USCIS Benefits Delivery During Pandemic

The Department of Homeland Security’s Office of Inspector General (OIG) released a report on December 28, 2021, finding that continued reliance on manual processing slowed U.S. Citizenship and Immigration Services’ benefits delivery during the COVID-19 pandemic.

OIG found that USCIS had limited capability to electronically process more than 80 types of benefits, which still required some manual workflows and paper files to complete cases. Recurring technology performance issues and equipment limitations further constrained USCIS employees’ productivity, OIG said, attributing the challenges to “funding cuts and lost fee revenue that limited spending during this time.” OIG noted that these challenges “further increased processing times and resulted in a backlog of 3.8 million cases as of May 2021.”

The report includes two recommendations aimed at improving USCIS’s electronic processing of benefits, with which USCIS concurred:

Recommendation 1: Update the USCIS pandemic plan to incorporate additional technology guidance and lessons learned during the COVID-19 pandemic. The estimated completion date is December 30, 2022. OIG considers this recommendation to be “open and resolved.” OIG said a formal closeout letter to be submitted should be accompanied by “evidence of completion of agreed-upon corrective actions and of the disposition of any monetary amounts.”

Recommendation 2: Develop an updated strategy for digitizing all benefits work and tracking the outcome of improving case processing times, including a detailed funding plan, in accordance with the Emergency Stopgap USCIS Stabilization Act. OIG considers this recommendation to be “resolved and closed.”

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EOIR Mandates E-Filing as of February 11, 2022

Effective February 11, 2022, the Executive Office for Immigration Review (EOIR) will require electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals.

Users can view training materials on EOIR’s website, including infographics and videos on how to upload and download documents on its Courts & Appeals System.

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USCIS Plans E-Verify Records Disposal for April 1, 2022

U.S. Citizenship and Immigration Services (USCIS) plans to dispose of E-Verify records that are more than 10 years old on April 1, 2022. (USCIS defined “more than 10 years old” as “those dated on or before Dec. 31, 2011.) E-Verify employers have until March 31, 2022, to download case information from the Historic Records Report if they want to retain information about these E-Verify cases, USCIS said.

USCIS noted that employers must record the E-Verify case verification number on the corresponding Form I-9, Employment Eligibility Verification, or attach a copy of the case details page to the I-9 form. Employers should retain the Historic Records Report with the I-9 forms.

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