Weekly Immigration Update: December 16–23, 2021
December 23, 2021
In immigration news this week:
- Worldwide: Jurisdictions around the world continue to adapt their coronavirus-related travel restrictions and health requirements based on several factors, including fluctuating infection rates and growing vaccination initiatives. Visit Fragomen’s COVID-19 website for the latest immigration updates.
- United States: Due to the ongoing COVID-19 emergency, U.S. Immigration and Customs Enforcement (ICE) is extending its flexible I-9 document inspection policy through April 30, 2022. The Department of Homeland Security (DHS) is withdrawing a final regulation that would have supplanted the H-1B cap lottery with a selection process based on the Department of Labor’s wage level system. Next month, U.S. Citizenship and Immigration Services (USCIS) will accept employment-based adjustment of status applications from foreign nationals with a priority date that is earlier than the Filing Dates listed in the State Department’s January 2022 Visa Bulletin.
- United Kingdom: The Home Office updated the employer right to work checks guidance with upcoming changes applicable from April 2022. The Migration Advisory Committee’s annual report focuses on improved access to the labour market and increased foreign worker protections.
- Ireland: In order to ensure that foreign nationals do not have a lapse in status, the government is automatically renewing all immigration permissions (including Irish Residence Permit (IRP) cards, passport stamps and previously extended permissions) due to expire between January 15, 2022 and May 31, 2022. This includes permissions that have already been extended by the previous eight temporary extensions since March 2020.
- Brexit: Ireland’s deadline for Article 50 registration for non-EEA family members of UK nationals residing in Ireland has been extended to June 30, 2022. Check the consolidated alert for more information.
- Minimum salary updates: Portugal and Turkey will increase their minimum wage in 2022, and Luxembourg will increase its EU Blue Card minimum salary for both regular and shortage occupations. In Colombia, the minimum wage will increase significantly on January 1, 2022, but will not directly affect the hiring of foreign nationals from an immigration perspective. See this consolidated alert for more information.
These items and other news from Bermuda, Ireland, Malaysia, Montenegro, Sweden, and the United States follow in this edition of the Fragomen Immigration Update.
Important updates in immigration this week
United States, December 21, 2021
DHS Withdraws Regulation to Replace H-1B Cap Lottery with Wage Level Selection Process
- The Department of Homeland Security (DHS) is withdrawing a final regulation that would have supplanted the H-1B cap lottery with a selection process based on the Department of Labor’s wage level system.
- The H-1B regulation was vacated by a California district court in September 2021 and DHS is not appealing that decision. The agency is also expected to cease defending a separate district court case challenging the regulation.
- The H-1B lottery system will remain in place for the foreseeable future, but a wage allocation rule remains on the DHS long-term action regulatory agenda. The rule is deprioritized, but a new proposal to impose wage allocation cannot be ruled out.
To view entire article, click here.
United States, December 20, 2021
DHS Will Make Additional H-2B Visas Available for Employment in the First Half of FY 2022
- Employers will soon be able to petition for an additional 20,000 H-2B quota numbers for temporary non-agricultural employment that begins on or before March 31, 2022.
- Of the 20,000 visas, 13,500 will be available to returning H-2B workers and 6,500 will be reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they are H-2B returning workers.
- Employers will likely be required to attest that their business is at risk of irreparable harm without additional H-2B workers.
- DHS is expected to issue petition filing instructions for the additional quota numbers in the coming weeks.
To view entire article, click here.
United Kingdom, December 20, 2021
Migration Advisory Committee Publishes Annual Report
Key recommendations of the Migration Advisory Committee (MAC)’s annual report include:
- Allowing intracompany transferees access to permanent residence in the United Kingdom;
- Adding care workers to the Health and Care Visa route and the Shortage Occupation List;
- Reviewing the ban on employment for asylum seekers;
- Not allowing jobs on the Shortage Occupation List to be paid lower salaries than the market rate; and
- Designing formalised visa routes that can be temporarily accessed.
The Home Office would need to adopt the MAC’s recommendations into law for them to become effective. It is unlikely that the Home Office will take a view on the report before the new year and unclear whether or when they would accept the recommendations.
To view entire article, click here.
United Kingdom, December 17, 2021
Changes to the Right to Work Check Process from April 2022
- The Home Office updated the employer right to work checks guidance with upcoming changes applicable from April 2022.
- The changes will apply to checks currently conducted on holders of a Biometric Residence Card (BRC), a Biometric Residence Permit (BRP) and a Frontier Worker Permit (FWP).
- From April 6, 2022, BRC, BRP and FWP holders will need to evidence their right to work using the Home Office online checking service only. Employers will no longer be able to accept physical biometric cards for these holders’ right to work check.
- Employers will not be required to conduct retrospective checks on biometric card holders who demonstrated their right to work using a physical card on or before April 5, 2022, until the expiry of their biometric card.
To view entire article, click here.
Ireland, December 17, 2021
Further Blanket Extension of Immigration Permissions until May 31, 2022
- Due to processing delays and closures arising from the COVID-19 pandemic, in order to ensure that foreign nationals do not have a lapse in status, the government is automatically renewing all immigration permissions (including Irish Residence Permit (IRP) cards, passport stamps and previously extended permissions) due to expire between January 15, 2022 and May 31, 2022. This includes permissions that have already been extended by the previous eight temporary extensions since March 2020.
- In the interim, residents of Dublin should apply to renew their IRP cards through the online system. A new telephone booking system for first-time registration in Dublin will launch in January 2022. Residents outside Dublin should continue to try to secure in-person appointments with their local registration office.
To view entire article, click here.
United States, December 16, 2021
ICE Extends Interim COVID-19 Flexibility for Form I-9 Compliance Through April 30, 2022
- Due to the ongoing COVID-19 emergency, U.S. Immigration and Customs Enforcement is extending its flexible I-9 document inspection policy through April 30, 2022.
- Eligible employers will continue to be permitted to review I-9 identity and employment authorization documents without conducting a physical inspection until the interim policy expires or until three days after the COVID-19 emergency is over, whichever comes first.
- Employees onboarded on or after April 1, 2021 whose I-9s were completed without physical inspection of their documents must have their documents inspected in person once they begin working non-remotely on a “regular, consistent, or predictable basis.”
To view entire article, click here.
United States, December 16, 2021
January 2022 Visa Bulletin Update – USCIS to Honor Filing Dates for Employment-Based Categories
Next month, USCIS will accept employment-based adjustment of status applications from foreign nationals with a priority date that is earlier than the Filing Dates listed in the State Department’s January 2022 Visa Bulletin.
To view entire article, click here.
Other weekly news briefs
Bermuda: Immigration Department Announces Digitization Plans – The Immigration Department has announced plans to digitize operations, including the use of online platforms to electronically submit immigration applications, pay fees, obtain status updates, and issue approvals and immigration documents, among other processes. The government’s objective is to transition away as much as possible from paper-based processes and towards an end-to-end electronic solution for its operations in order to streamline processes, and avoid service interruptions when staff are out of the office (as was the case during COVID-19-related closures). An implementation timeline has not yet been released but implementation is expected to be in phases throughout 2022.
Ireland: Extension of Residence Permit Deadline for Certain Non-EEA Family Members of UK Nationals Residing in Ireland – The Irish government has extended the deadline to June 30, 2022, from the original date of December 31, 2021, for non-EEA family members of UK nationals residing in Ireland before December 31, 2020 to apply for a residence document under the Withdrawal Agreement. Applications can be filed online. This extension will allow these nationals to continue to live and work in Ireland past December 31, 2021 if they have not already filed their applications.
Malaysia: Work Pass Endorsement Process Eased – Per published process changes, companies registered with the Malaysia Digital Economy Corporation (MDEC) with Work Pass holders who are seeking to endorse their Work Passes can have their employer opt for their endorsement sticker to be delivered to the company's address, as registered on the MDEC’s online portal. Work Passes must be endorsed in order for foreign nationals to be able to start legally working in Malaysia. Companies that opt for the pass sticker to be collected from the MDEC may face longer processing times. Companies registered with the Expatriate Services Division (ESD), however, do not have the option to collect their pass sticker from the MYXpats Centre; they can only have their sticker delivered to the company’s registered correspondence address. Additionally, companies that submit Employment Permit Category I and II, Dependent Category I and II, and Long-term Social Visit Passes via the ESD portal and that employ foreign nationals who are abroad and need to endorse their Work Passes at the ESD Satellite Centre (ESC), can now upload their endorsement-related documents on the government’s online portal. Following approval (which takes approximately three business days), foreign nationals can enter Malaysia, complete the endorsements and start work. Previously, additional steps were required in the process that required a longer wait time for the completion of endorsements after the foreign nationals entered Malaysia.
Montenegro: 2022 Annual Work Permit Quota Redistribution – The national work permit quota remains unchanged for 2022 at 20,454 applications. However, 15,454 permit applications will be redistributed in the following manner: 3,342 for seasonal employment, down 8% from 2021, which granted a 2% increase for other permit types, now at 12,112 applications. The additional 5,000 permits are distributed by the Ministry of Economic Development per labour market requirements. Exemptive groups also remain the same for 2022.
Sweden: Permanent Residence Cards Issued for Shorter Duration – Effective January 1, 2022, permanent residence cards will be issued for three years, down from five, and will have more security features. Although the underlying residence right is valid indefinitely, the card must regularly be renewed to ensure regular identity checks. Foreign nationals will still be required to submit biometric data every three years, prior to the card’s expiration date.
United States: Effective December 23, Certain U.S. Passports Eligible for Online Renewal – Effective December 23, 2021, qualified applicants have the option of submitting U.S. passport renewal applications on-line via the State Department’s Online Passport Renewal (OPR) system as an alternative to the mail in process. Applicants must meet all of the eligibility requirements for using OPR or will be referred to the paper application process. According to the State Department, the first release of the OPR system will be limited and apply to persons in the United States who are submitting an application in the same name, gender marker, date of birth, and place of birth as the most recently issued passport of the same type, with the intent that future releases will permit passport information changes and may be used by persons applying abroad. Applicants using OPR will enter their application information and upload their photos directly into the OPR system and submit their payment through pay.gov. According to the agency, applications received through OPR will automatically enter review queues at the passport agency, thus eliminating the physical application and processing at the Lockbox.
This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen.
