Immigration Update

May 2, 2022 | Immigration Updates

In this edition, find the latest news on filing adjustment of status applications for EB-5 investors, ICE’s announcement of the extension of I-9 flexibilities, OFLC’s announcement of a new submission process for H-2B applications, DHS’s details on the ‘Uniting for Ukraine’ process, and more.  

Concurrent or Subsequent Filing of Adjustment of Status Applications for EB-5 Investors with Pending or Approved Form I-526s 

The EB-5 Reform and Integrity Act of 2022 provides relief for those lawfully admitted into the U.S. to move forward with their green card, even before the Form I-526 is approved.  This is authorized for both new immigrant investors as well as immigrant investors who filed prior to June 30, 2021.    

USCIS has since confirmed that an immigrant investor (and eligible derivative beneficiaries) can now file a Form I-485, Application to Adjust Status, based on a pending or approved Form I-526.  Although the Form I-485 instructions have not yet been updated, we have received credible reports of USCIS issuing Form I-485 receipt notices for immigrant investors with pending Form I-526s.   

This is particularly beneficial for those currently in the U.S. who are running out of time on F-1, OPT, H-1B, E-2, L-1, and other nonimmigrant visas.  It also provides the opportunity to file for an Employment Authorization Document and for Advance Parole – interim benefits – while the adjustment of status application is pending.  Of course, there are issues relating to “immigrant intent” when an adjustment application is filed.  Furthermore, depending on what USCIS allows, the filing of an adjustment application may or may not “freeze” a child’s age under the Child Status Protection Act. 

Due to the highly personal circumstances surrounding an adjustment filing, please contact EB-5 partners Joseph Barnett or Vivian Zhu to discuss the filing of a Form I-485.   

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ICE Announces Extension of I-9 Flexibilities to October 31, 2022 

On April 25, 2022, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 flexibilities until October 31, 2022. The extension relates to deferral of the physical presence requirements of the employment eligibility verification process for certain employees, first announced on March 20, 2020, and updated periodically.  

The requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in person applies only to those employees “who physically report to work at a company location on any regular, consistent, or predictable basis,” ICE said. Employees working exclusively remotely who were hired on or after April 1, 2021, are temporarily exempt from the physical inspection requirements. 


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OFLC Announces New Submission Process for H-2B Applications for Temporary Employment Certification 

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced on April 28, 2022, that the Foreign Labor Application Gateway (FLAG) is implementing technical changes to H-2B filing for the Form ETA-9142B (H-2B Application for Temporary Employment Certification) submission process. OFLC said that FLAG has upgraded the H-2B form fill and submit module, “which is expected to reduce lag time in completing form fields, document uploads, and appendices. All other FLAG H-2B functionality will be available to filers in the upgraded fill and submit module.” 

H-2B submissions must be initiated and submitted in the new form module. Any initiated H-2B cases submitted before 6 p.m. ET on April 28, 2022, will be deleted and a new application using the upgraded module will need to be created, OFLC said. 


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DHS Provides Details on ‘Uniting for Ukraine’ Process 

On April 27, 2022, the Department of Homeland Security (DHS) issued a notice providing details on the new “Uniting for Ukraine” process. Under the new process, available since April 25, 2022, DHS will offer certain Ukrainian citizens and their immediate family members recently displaced by Russia’s invasion of Ukraine an opportunity to travel to the United States to seek humanitarian parole for up to two years. Qualifications include passing biometric and biographic vetting, having sufficient financial support in the United States, and meeting other eligibility requirements listed in the DHS notice.  

DHS noted that as of April 10, 2022, nearly 12 million people had fled their homes as a result of the war in Ukraine, including seven million displaced inside Ukraine. DHS noted that this was due to ongoing violence and resulting widespread electricity outages, a lack of water and food, infrastructure and residential building damage, medical supply issues, hospital shortages, and ongoing displacement and fatalities of civilians. 


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CBP Continues Vaccination Requirements at U.S. Borders With Canada, Mexico 

U.S. Customs and Border Protection will continue to require non-U.S. travelers entering the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated against COVID-19 and provide related proof of vaccination upon request. These requirements continue to apply to non-U.S. travelers who are traveling both for essential and non-essential reasons, but do not apply to U.S. citizens, lawful permanent residents, or U.S. nationals, the Department of Homeland Security (DHS) said. 

Non-U.S. travelers entering the United States via land ports of entry and ferry terminals, whether for essential or non-essential reasons, must: 

  • Verbally attest to their COVID-19 vaccination status; 
  • Provide, upon request, proof of a CDC-approved COVID-19 vaccination; 
  • Present a valid Western Hemisphere Travel Initiative (WHTI)-compliant document, such as a valid passport, Trusted Traveler Program card, or Enhanced Tribal Card; and 
  • Be prepared to present “any other relevant documents” requested by a U.S. Customs and Border Protection (CBP) officer during a border inspection. 

COVID-19 testing is not required to enter the United States via a land port of entry or ferry terminal, DHS said. 


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