ABIL Immigration Insider • January 2, 2022

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In this issue:

1. USCIS Extends Flexibilities for Responding to Certain Agency Requests – The flexibilities apply if the issuance date listed on the request, notice, or decision is between March 1, 2020, and March 26, 2022, inclusive. USCIS said it will consider a response to such requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

2. State Dept. Proposes Raising Consular Service Fees for Nonimmigrant and Special Visas – The Department of State has proposed raising fees for consular services for several nonimmigrant visa application processing fees, the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee for certain J exchange visitors.

3. Restrictions on Travelers From Southern African Countries Lifted – Affected countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.

4. Certain Healthcare Workers Can Request Expedited Work Permits, USCIS Says – Qualified healthcare workers who have pending employment authorization document (EAD) renewal applications and EADs that will expire in 30 days or less, or that have already expired, can request expedited processing of the EAD application.

5. Labor Dept. Issues H-2A FAQ on Wage Disclosure and Calculation Requirements for Agricultural Clearance Orders – The Department of Labor’s Employment and Training Administration has released a set of frequently asked questions related to the wage disclosure and calculation requirements for agricultural clearance orders, including in the H-2A temporary labor certification program.

6. State Dept. Expands Waivers of In-Person Interviews for Certain Temporary Nonimmigrant Visa Applicants – The Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved USCIS.

7. Restrictions on Travelers From Southern African Countries Lifted December 31 – In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe.

8. For First Time, DHS to Supplement H-2B Cap With Additional Visas in First Half of Fiscal Year – The Departments of Homeland Security (DHS) and Labor (DOL) announced a forthcoming joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas for FY 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.

9. OFLC Reminds Employers That H-2B Filing Window Started January 1 – The filing window opened on January 1, 2022, for employers of H-2B workers to submit Form ETA-9142B, Application for Temporary Employment Certification, with appendices, requesting work start dates of April 1, 2022, or later. OFLC warned that H-2B applications requesting an April 1, 2022, work start date will be denied if they were filed before January 1, 2022.

10. State Dept. Updates Guidance on F-1, M-1 Student Intent to Depart and Residence Abroad Requirements – The Department of State updated its Foreign Affairs Manual on intent to depart and residence abroad requirements for F-1 and M-1 students. The guidance may also be useful for J-1 exchange visitors and Afghan scholars.

11. DHS Withdraws H-1B Selection Final Rule – Following a related action by the Department of Labor in response to a court order, the DHS withdrew a rule that would have changed the way USCIS selects H-1B registrations submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

12. U.S. Passport Fees Rose December 27 – The fee for a U.S. passport book increased by $20, the Department of State announced.

13. CBP Confirms Lifting of Temporary Travel Restrictions Between the United States and Canada, Mexico – U.S. Customs and Border Protection published notices on December 23, 2021, announcing the lifting on November 8, 2021, of temporary restrictions that applied to non-essential travel by fully vaccinated travelers with proof of COVID-19 vaccination status entering via land ports and ferry service along the U.S. borders with Canada and Mexico.

14. Immigration Provisions of Social Spending Bill in Limbo as Senate Democrats Struggle With Parliamentarian Rejections, Uncertainties – Lawmakers struggled to consider their options, including revisions to the immigration provisions or simply moving ahead without parliamentarian approval.

15. DHS Extends I-9 Flexibility to April 30, 2022 – DHS extended the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification, until April 30, 2022.

16. USCIS Releases Fourth-Quarter Data Showing Persistent Backlogs, Some Progress – USCIS released fourth-quarter fiscal year (FY) 2021 reports offering a snapshot of statistics for the entire fiscal year.

17. State Dept. Changes DV-2022 Document Submission Processing Requirements – Once the DS-260 immigrant visa application is received for all applicants associated with a case, that case will be eligible to be scheduled for a visa interview.

18. Smuggling, Forced Labor Ring Busted in Indictment – Two dozen defendants were indicted on federal conspiracy charges after a transnational, multi-year investigation into an alleged human smuggling and labor trafficking operation that illegally imported agricultural workers from Mexico, Guatemala, and Honduras, fraudulently using the H-2A visa program, and kept them in brutal conditions on Georgia farms.

19. Labor Dept. Issues Final Rule on Adjudication of H-2A Applications for Temporary and Seasonal Range Workers for Herding and Production of Livestock – Effective January 18, 2022, the Department of Labor is amending its regulations regarding the adjudication of temporary need for employers seeking to employ nonimmigrant workers for herding or production of livestock on the range.

20. Labor Dept. Issues 2022 Adverse Effect Wage Rates for H-2A Range, Non-Range Occupations – The Department of Labor published the 2022 Adverse Effect Wage Rates for the employment of temporary or seasonal workers to perform range (herding or production of livestock) and non-range agricultural labor or services.

21. Justice Dept. Adjusts Certain Immigration-Related Penalties on Employers – The Department of Justice has adjusted for inflation the civil monetary penalties assessed after December 13, 2021, for violations occurring after November 2, 2015.

22. Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule – The vacated rule amended regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.

23. USCIS Temporarily Waives 60-Day Rule for Civil Surgeon Signatures – USCIS is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit.

24. Labor Dept. Provides Guidance on Employers’ H-2B Visa Program Overtime Pay Obligations – The Department of Labor’s Wage and Hour Division provided guidance on employers’ overtime obligations related to the H-2B visa program.

25. USCIS Extends Transitional Parole for Certain CNMI Long-Term Resident Status Applicants – U.S. Citizenship and Immigration Services will automatically extend parole and employment authorization, if applicable, to current parolees who timely applied for Commonwealth of the Northern Mariana Islands long-term resident status and whose applications remain pending on December 30, 2021.

26. E-Verify Consolidates User Profile Screen – The consolidated elements include user profile information, updating/changing a password, and updating/changing password challenge questions and answers.

27. ABIL Global: Italy – The Italian government announced the number of non-European Union workers allowed into Italy.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – January 2022

1. USCIS Extends Flexibilities for Responding to Certain Agency Requests

U.S. Citizenship and Immigration Services (USCIS) is extending the flexibilities it originally announced on March 30, 2020, to assist applicants, petitioners, and requestors who are responding to certain requests.

The flexibilities apply if the issuance date listed on the request, notice, or decision is between March 1, 2020, and March 26, 2022, inclusive. USCIS said it will consider a response to such requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

The flexibilities cover responses to Requests for Evidence; Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and 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 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 issuance of a decision USCIS made, and the agency made that decision between November 1, 2021, and March 26, 2022, inclusive.

Details:

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2. State Dept. Proposes Raising Consular Service Fees for Nonimmigrant and Special Visas

The Department of State (DOS) has proposed raising fees for consular services for several nonimmigrant visa (NIV) application processing fees, the Border Crossing Card (BCC) for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee for certain J exchange visitors. Specifically, the Department proposes:

  • To increase the non-petition-based NIV fee from $160 to $245 per application. Non-petition-based NIVs include a variety of nonimmigrant visas, such as those for business and tourist travel (B1/B2); students and exchange visitors (F, M, and J); crew and transit visas (C and D); representatives of foreign media (I), and other country-specific visa classes, as well as BCCs for applicants age 15 or older who are citizens of and resident in Mexico.
  • To increase fees for all petition-based NIVs related to employment in the United States from $190 to $310. Petition-based NIVs include categories for temporary workers and trainees (H); intracompany transferees (L); aliens of extraordinary ability (O); athletes, artists, and entertainers (P); international cultural exchange participants (Q); and religious workers (R).
  • To increase the E category NIV fee from $205 to $485.
  • To increase the J waiver fee from $120 to $510.

DOS will accept comments on the proposed rule until February 28, 2022.

Details:

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3. Restrictions on Travelers From Southern African Countries Lifted

Temporary travel restrictions the Biden administration imposed in November on foreign travelers from South Africa and seven other countries in the region, due to the spread of the Omicron variant of COVID-19, were lifted on December 31, 2021, following recommendations from the Centers for Disease Control and Prevention. In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. A related Presidential Proclamation noted, among other things, that “scientific experts have determined that people who are vaccinated against COVID-19 are protected against severe disease and hospitalization from the Omicron variant. Moreover, the Omicron variant has now spread to more than 100 countries, and it is prevalent in the United States.”

People traveling from South Africa and the other seven countries will now need to meet the same requirements as other foreign travelers to the United States: be fully vaccinated and obtain a negative COVID-19 test within a day before their departure to the United States. All travelers, including U.S. citizens, lawful permanent residents, and foreign nationals, must show to the airline documentation of a negative viral test result taken within one day of the flight’s departure before boarding. The CDC recently shortened the testing time period from within three days before travel to within one day.

The Department of State (DOS) noted that the rescission of the travel ban does not necessarily mean that a local U.S. embassy or consulate can immediately schedule all affected applicants for visa interviews. DOS recommended that travelers check the embassy or consulate website for information on what services they are offering and instructions on how to apply for a visa.

Details:

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4. Certain Healthcare Workers Can Request Expedited Work Permits, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced that qualified healthcare workers who have pending employment authorization document (EAD) renewal applications and EADs that will expire in 30 days or less, or that have already expired, can request expedited processing of the EAD application.

Workers should check the related DHS advisory memorandum to determine whether they qualify. Workers requesting expedited processing of their EADs must provide evidence of their profession or current employment as a healthcare workers. To request expedited processing, workers should call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833).

Details:

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5. Labor Dept. Issues H-2A FAQ on Wage Disclosure and Calculation Requirements for Agricultural Clearance Orders

The Department of Labor’s Employment and Training Administration (ETA) has released a set of frequently asked questions (FAQ) related to the wage disclosure and calculation requirements for agricultural clearance orders, including in the H-2A temporary labor certification program.

The FAQ reminds State Workforce Agencies that they must check an employer’s piece rate offer, estimated in hourly wage rate equivalents for each activity and unit size, when reviewing the Forms ETA-790A and 790B (collectively referred to as “agricultural clearance orders”) and to clarify related wage disclosure and calculation requirements of these forms for employers.

Details:

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6. State Dept. Expands Waivers of In-Person Interviews for Certain Temporary Nonimmigrant Visa Applicants

The Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved by U.S. Citizenship and Immigration Services.

The new authorization applies to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions, including that they are applying for a visa in their country of nationality or residence, the Department of State (DOS) said. In addition, the Secretary extended previously approved policies to waive the visa interview for certain students, professors, research scholars, short-term scholars, and specialists (F, M, and academic J visa applicants) through the end of 2022.

Additionally, the Secretary of State has extended consular officers’ ability to waive the in-person interview through December 31, 2022, for the following other categories of nonimmigrant visas: temporary agricultural and non-agricultural workers (H-2 visas), students (F and M visas), and student exchange visitors (academic J visas).

One change to the previous policy, DOS noted, is that applicants eligible for the waiver authority because they are citizens or nationals of a Visa Waiver Program (VWP) participating country must have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization to qualify.

DOS said it encourages applicants to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview. Embassies and consulates may still require an in-person interview on a case-by-case basis and depending on local conditions, the agency noted.

Details:

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7. Restrictions on Travelers From Southern African Countries Lifted December 31

Temporary travel restrictions the Biden administration imposed in November on foreign travelers from South Africa and seven other countries in the region, due to the spread of the Omicron variant of COVID-19, were lifted on December 31, 2021, following recommendations from the Centers for Disease Control and Prevention. In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe.

Those traveling from South Africa and the other seven countries now need to meet the same requirements as other foreign travelers to the United States: be fully vaccinated and obtain a negative COVID-19 test within a day of their departure to the United States.

Details:

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8. For First Time, DHS to Supplement H-2B Cap With Additional Visas in First Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced on December 20, 2021, the forthcoming publication of a joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022, DHS said.

The agency said, “This supplemental cap marks the first time that DHS is making additional
H-2B visas available in the first half of the fiscal year. Earlier this year, USCIS received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.”

The supplemental H-2B visa allocation consists of 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years, DHS noted. The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti and the Northern Triangle countries of Honduras, Guatemala, and El Salvador.

Details:

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9. OFLC Reminds Employers That H-2B Filing Window Started January 1

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers and other stakeholders that the filing window for employers of H-2B workers opened on January 1, 2022, to submit Form ETA-9142B, Application for Temporary Employment Certification, with appendices, requesting work start dates of April 1, 2022, or later. OFLC warned that H-2B applications requesting an April 1, 2022, work start date would be denied if they were filed before January 1, 2022.

OFLC said it would randomly order for processing all H-2B applications requesting a work start date of April 1, 2022, that were filed during the initial three calendar days (January 1-3, 2022) using randomization procedures. Each day, from January 2 through January 4, 2022, OFLC planned to publish on the Foreign Labor Application Gateway System the number of H-2B applications received to date and the total number of requested worker positions on those applications.

Details:

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10. State Dept. Updates Guidance on F-1, M-1 Student Intent to Depart and Residence Abroad Requirements

The Department of State (DOS) updated its Foreign Affairs Manual (FAM) on intent to depart and residence abroad requirements for F-1 and M-1 students. The guidance may also be useful for J-1 exchange visitors and Afghan scholars.

The guidance states that student visa applicants must possess a present intent to depart the United States at the conclusion of their approved activities, but that such intentions may be subject to, or even likely to, change and that this is not a sufficient reason to deny a visa. Further, the guidance notes, the present intent to depart does not imply a need to return to the country from which they hold a passport; it only means that they must intend to leave the United States upon completion of studies. A student can be considered as maintaining a residence abroad if he or she intends to return to reside with parents or guardians.

The guidance notes that students, who are typically young, are at a phase in life where they are not expected to necessarily have long-range plans or be able to fully explain what their plans are after they finish their studies. The guidance notes that the context of the residence abroad requirement for student visas inherently differs from the context for B visitor or other short-term visas: “It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.”

Details:

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11. DHS Withdraws H-1B Selection Final Rule

The Department of Homeland Security (DHS) published a final rule on December 22, 2021, that withdrew the “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” final rule, also known as the H-1B Selection Final Rule, issued January 8, 2021. That rule was vacated by the U.S. District Court for the Northern District of California.

On September 15, 2021, the court in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. March 19, 2021) vacated the H-1B Selection Final Rule. The rule would have changed the way USCIS selects H-1B registrations (or petitions, if registration is suspended) submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

DHS’s action follows a similar final rule from the Department of Labor, effective December 13, 2021.

Details:

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12. U.S. Passport Fees Rose December 27

The fee for a U.S. passport book increased by $20 on December 27, 2021, the Department of State (DOS) announced, attributing the rise to a need “to ensure we continue to produce one of the most secure travel and identity documents in the world.”

As examples, the fee for renewing a U.S. passport book by mail was $110; as of December 27, that fee rose by 18.2% to $130.

DOS also said it plans to launch its long-awaited online passport renewal system by fall 2022. The system is undergoing pilot-testing by federal employees and contractors. President Biden issued an executive order on December 13, 2021, requiring a system that does not require physical documents to be mailed.

Details:

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13. CBP Confirms Lifting of Temporary Travel Restrictions Between the United States and Canada, Mexico

U.S. Customs and Border Protection (CBP) published notices on December 23, 2021, announcing the lifting on November 8, 2021, of temporary restrictions that applied to non-essential travel by fully vaccinated travelers with proof of COVID-19 vaccination status entering via land ports and ferry service along the U.S. borders with Canada and Mexico.

Details:

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14. Immigration Provisions of Social Spending Bill in Limbo as Senate Democrats Struggle With Parliamentarian Rejections, Uncertainties

After the Senate parliamentarian rejected a plan that included work permits and protection from deportation favored by Democrats for inclusion in the “social spending” budget reconciliation bill, lawmakers struggled to consider their options, including revisions to the immigration provisions or simply moving ahead without parliamentarian approval. Several Democratic senators issued a joint statement: “We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act.”

The parliamentarian has not yet addressed other immigration provisions included in the social spending bill, such as green card backlog relief, and their fate remains uncertain.

Details:

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15. DHS Extends I-9 Flexibility to April 30, 2022

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification. The flexibility policy was set to expire December 31, 2021, but because of ongoing pandemic issues, DHS extended it until April 30, 2022.

DHS said that eligible employees working exclusively in remote settings are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If employees are physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation.

Employers are advised to monitor the DHS and ICE workforce enforcement announcements for updates on ending the extension and resuming normal operations. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire, DHS said.

Details:

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16. USCIS Releases Fourth-Quarter Data Showing Persistent Backlogs, Some Progress

U.S. Citizenship and Immigration Services (USCIS) released fourth-quarter fiscal year (FY) 2021 reports offering a snapshot of statistics for the entire fiscal year. The agency noted:

  • Employment-based adjustments: USCIS said it faced an unprecedented challenge of processing more than 237,000 employment-based permanent residence (green card) applications—which 122,000 immigrant visa numbers that the Department of State was unable to process in FY 2020 due to COVID-19 pandemic restrictions. By the end of FY 2021, USCIS had approved more than 172,000 employment-based adjustment of status applications, which the agency said was 50% above the typical baseline.
  • Processing delays: Across the agency, the volume of pending cases increased as well as associated processing times. To address the backlogs, USCIS said it reused biometrics for 2.5 million applicants since March 2020; reduced the number of pending biometrics appointments from 1.4 million in January 2021 to 155,000 as of the end of September; and fully eliminated the “front-log” of cases awaiting intake processing (which was more than 1 million receipts in January 2021 and was eliminated in July) by expanding staffing and overtime at USCIS Lockbox facilities.

The USCIS table below shows approved employment-based petitions awaiting visa availability by preference category and country of birth as of September 2021. The grand total was 438,377, with the most from India at 357,720.

Details:

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17. State Dept. Changes DV-2022 Document Submission Processing Requirements

The Department of State (DOS) announced that as of December 9, 2021, individuals who were randomly selected to participate in the diversity visa (DV) program for fiscal year (FY) 2022 only need to submit to the Kentucky Consular Center (KCC) the DS-260 immigrant visa application form for themselves and any accompanying family members. Once the DS-260 is received for all applicants associated with a case, that case will be eligible to be scheduled for a visa interview.

DOS said that DV-2022 selectees no longer must submit to the KCC any other required supporting documents for DV-2022 to be eligible for an in-person interview at an embassy or consulate. Rather, all supporting documents for DV-2022 selectees will be collected in connection with the interview and evaluated at the embassy or consulate where the visa application is made. DOS said it is treating this as a “pilot program” and will assess the costs and benefits later in the program year.

Details:

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18. Smuggling, Forced Labor Ring Busted in Indictment

Two dozen defendants were indicted on federal conspiracy charges after a transnational, multi-year investigation into an alleged human smuggling and labor trafficking operation that illegally imported agricultural workers from Mexico, Guatemala, and Honduras, fraudulently using the H-2A visa program, and kept them in brutal conditions on Georgia farms, the U.S. Attorney’s Office for the Southern District of Georgia announced.

The newly unsealed, 54-count indictment in USA v. Patricio et al. details felony charges resulting from “Operation Blooming Onion,” an Organized Crime Drug Enforcement Task Forces (OCDETF) investigation. The multi-agency investigation, led by Homeland Security Investigations and other federal agencies, spanned at least three years. The 53-page indictment documents dozens of victims of “modern-day slavery” brought to the United States as contract agricultural laborers.

According to a statement from the U.S. Attorney’s Office, exploitation of the workers included “being required to dig onions with their bare hands, paid 20 cents for each bucket harvested, and threatened with guns and violence to keep them in line. The workers were held in cramped, unsanitary quarters and fenced work camps with little or no food, limited plumbing and without safe water. The conspirators are accused of raping, kidnapping and threatening or attempting to kill some of the workers or their families, and in many cases [the conspirators] sold or traded the workers to other conspirators. At least two of the workers died as a result of workplace conditions.” The perpetrators are alleged to have received more than $200 million from the scheme, which also included money laundering and witness intimidation and tampering.

Details:

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19. Labor Dept. Issues Final Rule on Adjudication of H-2A Applications for Temporary and Seasonal Range Workers for Herding and Production of Livestock

Effective January 18, 2022, the Department of Labor (DOL) is amending its regulations regarding the adjudication of temporary need for employers seeking to employ nonimmigrant workers for herding or production of livestock on the range. Consistent with a court-approved settlement agreement, the final rule rescinds a regulatory provision that governed the period of need for such jobs under the H-2A visa classification to ensure that DOL’s adjudication of temporary or seasonal need is conducted in the same manner for all applications for temporary agricultural labor certification.

Specifically, in this final rule, DOL is eliminating a presumptive period of need for employment involving range herding and an absolute restriction on the period of need for employment involving range livestock activities. Instead, all employers applying for H-2A temporary agricultural labor certifications under the final rule must individually demonstrate that their need for workers is temporary or seasonal, regardless of occupation.

Details:

  • DOL final rule, 86 Fed. Reg. 71373 (Dec. 16, 2021),

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20. Labor Dept. Issues 2022 Adverse Effect Wage Rates for H-2A Range, Non-Range Occupations

The Department of Labor published notices with the 2022 Adverse Effect Wage Rates (AEWR) for the employment of temporary or seasonal workers to perform range (herding or production of livestock) and non-range agricultural labor or services.

  • The AEWR for range occupations is effective January 1, 2022. The notice states that employers of range workers must pay each worker a wage that is at least the highest of the monthly AEWR of $1,807.23, the agreed-upon collective bargaining wage, or the applicable minimum wage.
  • The AEWR for non-range occupations is effective December 29, 2021. A state-by-state chart shows non-range AEWRs by state, from a low of $11.99 in Alabama to a high of $17.51 in California.

Details:

  • DOL notice (non-range), 86 Fed. Reg. 71282 (Dec. 15, 2021),

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21. Justice Dept. Adjusts Certain Immigration-Related Penalties on Employers

The Department of Justice has adjusted for inflation the civil monetary penalties assessed after December 13, 2021, for violations occurring after November 2, 2015. The adjustments made by the final rule are based on the Bureau of Labor Statistics’ Consumer Price Index for October 2020.

The final rule includes a table showing the old and new penalties. For example:

  • In 2016, “unlawful employment of aliens, first order (per unauthorized alien)” the penalty was a minimum of $539 to a maximum of $4,313. Now the minimum is $590 and the maximum is $4,722.
  • For a second such violation, the minimum in 2016 was $4,313 and the maximum was $10,781; now the minimum is $4,722 and the maximum is $11,803.

Details:

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22. Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule

The Department of Labor’s Employment and Training Administration (ETA) published a final rule, effective December 13, 2021, implementing a federal district court order vacating a controversial January 14, 2021, final rule that was initially promulgated in October 2020. The rule amended ETA regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.

The new final rule removes the regulatory text that DOL initially promulgated and restores the regulatory text to appear as it did before.

Details:

  • “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021),

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23. USCIS Temporarily Waives 60-Day Rule for Civil Surgeon Signatures

U.S. Citizenship and Immigration Services (USCIS) is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit (including Form I-485, Application to Register Permanent Residence or Adjust Status).

USCIS said this temporary waiver “will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes caused delays in completing the immigration medical examination.” The temporary waiver will benefit many applicants, USCIS noted, “including Afghan nationals evacuated under Operation Allies Welcome who have completed immigration medical examinations at government-run facilities but were not able to apply for adjustment of status within 60 days of the completed examination.”

Details:

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24. Labor Dept. Provides Guidance on Employers’ H-2B Visa Program Overtime Pay Obligations

The Department of Labor’s Wage and Hour Division (WHD) disseminated a field assistance bulletin on December 7, 2021, providing enforcement guidance on employers’ overtime obligations related to the H-2B visa program.

Among other things, the bulletin notes that the H-2B visa program does not mandate the payment of an overtime premium for hours worked exceeding a certain number in the day, week, or pay period. However, employers participating in the H-2B visa program are required by the Fair Labor Standards Act (FLSA) to pay an overtime premium of not less than one and one-half times the worker’s regular rate of pay for hours worked exceeding 40 hours in a workweek. There are exemptions from the overtime requirements, WHD noted, but these exemptions do not usually apply to industries represented in the H-2B visa program. An employer who is employing workers who are exempt from the FLSA overtime requirements must still comply with any state or local laws requiring overtime pay, WHD said.

Details:

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25. USCIS Extends Transitional Parole for Certain CNMI Long-Term Resident Status Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on December 8, 2021, that it will automatically extend parole and employment authorization, if applicable, to current parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status and whose applications remain pending on December 30, 2021.

Parole will be extended without interruption through June 30, 2022, or the date on which USCIS makes a final decision on their Forms I-955, Application for CNMI Long-Term Resident Status, and I-765, Application for Employment Authorization, whichever is earlier.

Details:

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26. E-Verify Consolidates User Profile Screen

On December 7, 2021, E-Verify notified users via email that they can now view and complete several actions from a consolidated user profile screen, which “allows users to view all of their account information quickly and easily, without having to navigate to multiple pages.”

The consolidated elements include user profile information, updating/changing a password, and updating/changing password challenge questions and answers.

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27. ABIL Global: Italy

The Italian government announced the number of non-European Union (EU) workers allowed into Italy for the year 2021. New quotas are expected to be issued in early 2022.

The government set 69,700 quotas allocated for the year 2021 for different categories of non-EU citizens intending to work in the country:

  • 42,000 were reserved to entries for seasonal work
  • 27,700 were reserved for subordinate work, but only for specific sectors of activity and for certain nationalities
  • 2,000 were reserved to permit conversion for foreign citizens who already possessed a residence permit in Italy or the EU (study, seasonal work, permanent) intending to change status, i.e., to convert the existing permit into a permit for employment/self-employment
  • 500 quotas were for self-employment work (entrepreneurs, start-ups, professionals, well-known artists, chairpersons/CEOs, members of boards of directors, auditors in an Italian company active for at least three years)

Details:

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New Publications and Items of Interest

Nonprofit merger announced. New American Economy is merging with the American Immigration Council. The new nonprofit organization will also be called the American Immigration Council. According to a statement released December 6, 2021, “By combining the legal and litigation work, federal policy expertise, and innovative work on belonging from the American Immigration Council with the research, state and local policy work, and arts and culture programming from the New American Economy, the newly combined organization will have a broad suite of advocacy tools to better expand and protect the rights of immigrants, more fully ensure immigrants’ ability to succeed economically, and help make the communities they settle in more welcoming.”

Agency Twitter accounts:

  • EOIR: @DOJ_EOIR
  • ICE: @ICEgov
  • Study in the States: @StudyinStates
  • USCIS: @USCIS

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Charles Kuck (https://www.abil.com/abil-lawyers/charles-kuck/) was quoted by Bloomberg Law in “Skilled Worker Visa Lottery Fraud Suit Survives Dismissal Effort.” Commenting on Liu v. Mayorkas, Mr. Kuck said, “We believed from the beginning that USCIS clearly violated the governing statute in setting up an H-1B lottery that allows for the abuse of submitting multiple applications from different employers with no verification that those offered positions are real. We will now seek a final order from the court forcing USCIS to change the lottery and disallow any such abusive and frivolous findings, thereby giving each applicant a fair chance at these limited number[s] of visas.” (subscription required)

Mr. Kuck was quoted by NBC News in “Feds Bust ‘Modern-Day Slavery’ Ring Amid New Immigration Enforcement Effort.” He said the raid and indictment were both “unusual, when we know that the conditions for workers that they described are not unusual. This is just people getting caught.” He noted that although there are many H-2A employers who follow the rules and do everything right, “there are a lot of bad apples out there.” Mr. Kuck said he thinks “it’s a sign that the [Biden] administration takes seriously the problem of human trafficking and mistreatment of workers that come on visas, and things that may not have been priorities under the prior administration, even though they began the investigation as such.” https://www.nbcnews.com/news/us-news/feds-bust-modern-day-slavery-ring-new-effort-immigration-enforcement-rcna8273

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) authored several new blog postings: “2021 In Perspective From the Insightful Immigration Blog,” http://blog.cyrusmehta.com/2021/12/2021-in-perspective-from-the-insightful-immigration-blog.html; “State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student Nonimmigrant Intent,” http://blog.cyrusmehta.com/2021/12/state-department-holiday-gifts-expanded-interview-waivers-and-student-nonimmigrant-intent.html; and “The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?,”

Greg Siskind, of Siskind Susser, PC, and Mr. Mehta were quoted by Roll Call in “Limited Operations at U.S. Consulates Keep Visa Holders on Edge.” The article was published before the Department of State announced the expansion of interview waivers at consulates. Mr. Siskind said, “People have been afraid to travel because they know that if they leave, and they don’t have a current visa, they could be stuck for months on end, almost indefinitely, without being able to get back into the U.S. I’m still advising people: Don’t travel, unless you’re prepared to be working remotely for a year.” Mr. Mehta said he hoped the Department would extend the renewal-by-mail flexibility: “It’s less burdensome on the consulates and it’s more convenient for applicants who need to travel, and then they don’t have to get stuck. Because people need to travel for all kinds of reasons, and there are emergencies with parents and other family members contracting COVID.” https://www.rollcall.com/2021/12/22/limited-operations-at-us-consulates-keep-visa-holders-on-edge/

Wolfsdorf Rosenthal LLP expanded its northern California practice and appointing two new managing partners. Effective January 1, 2022, attorney Melissa Harms joined the firm in the Bay Area, and at WR’s office in Boston, Massachusetts, Amanda Brown and Miki Matrician are serving as co-managing partners. https://wolfsdorf.com/press-release-wr-immigration-expands-northern-california-practice-appoints-two-new-managing-partners/

Wolfsdorf Rosenthal LLP has published several new blog postings: “”H-1B Cap Season Begins, What to Expect”; “Can a Conditional Green Card Holder Marry a U.S. Citizen and Get a New Green Card in the U.S. Via Adjustment of Status When Investment Fails to Create Sufficient Jobs?”; “Another Failure by the EB-5 Immigrant Investor Program Office”; “EB-5 I-829 Receipt Notices Extended to 24 Months, But Extensions Don’t Go Far Enough”; “E-Verify Update for HR Managers: Final Responses Will Resume on TNCs”; “EB-5 I-829 Receipt Notices Extended to 24 Months, But Extensions Don’t Go Far Enough”; “Frequently Asked Questions on the EB-5 Regional Center Program in December 2021”; “E-Verify Update for HR Managers: Final Responses Will Resume on TNCs”; “U.S. to Impose New Travel Restrictions on Certain African Countries”; and “What Does the December 2021 Visa Bulletin Mean for New ‘Direct’ EB-5 Investors?.” https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by several Brazilian newspapers about President Biden’s immigration reform plans. As an example, Mr. Yale-Loehr was quoted by Diario do Grande ABC Internacional in “Biden Faces Pressure From Companies to Reform Immigration System.” Mr. Yale-Loehr said, “Companies cannot remain competitive in a global economy or meet consumer demand if they cannot hire and retain the workers they need. This is especially true given the current labor shortages and pandemic delays in visa applications and renewals.” https://www.dgabc.com.br/Noticia/3823241/biden-enfrenta-pressao-de-empresas-para-reformar-sistema-imigratorio (in Portuguese, with English translation available)

Mr. Yale-Loehr was quoted by Marketplace in “Will Employers Need Newly Available Seasonal Visas?.” Mr. Yale-Loehr said the additional H-2B visas could help the labor shortage a little. ” ‘A little bit’ is the operative word, you know. An additional 20,000 visas is not a lot, in the greater scheme of things.” https://www.marketplace.org/2021/12/21/will-employers-need-newly-available-seasonal-visas/

Mr. Yale-Loehr was quoted by Politico Magazine in “Biden’s H-1B Conundrum: The Administration’s Efforts to Reform the Visa Program Could Put Him at Loggerheads With Key Factions of His Own Party.” Mr. Yale-Loehr said the Biden administration has been trying to navigate a “political conundrum for the administration.” https://www.politico.com/news/magazine/2021/12/19/biden-h-1b-visa-conundrum-524254

Mr. Yale-Loehr was quoted by Die Zeit in “USA: Texas Begins Building Its Own Wall.” Mr. Yale-Loehr said, “Although states can do certain things about immigration under state law, putting up barriers along the border or arresting migrants is, in my opinion, beyond what is permitted.” https://www.zeit.de/politik/ausland/2021-12/usa-mexiko-texas-mauer-grenze (in German with English translation available)

Mr. Yale-Loehr was quoted by Univision in “Rejection of ‘Plan C’ Complicates Immigration Reform in Congress: What Path Could Democrats Take Now?” Mr. Yale-Loehr noted that the budget bill passed by the House of Representatives included important immigration provisions, “including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States.” He said the bill would also give the Department of Homeland Security “$2.8 billion to help process immigration applications and reduce backlogs in case processing…and would recover employment- and family-based green cards that have not been used and that otherwise would expire at the end of each year.” https://www.univision.com/noticias/inmigracion/rechazo-parlamentarian-plan-c-complica-reforma-migratoria-estas-son-las-claves (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by Voice of America (Russia) in “Migrants at the Border: You Can’t Stay Running.” He said, “The measures taken by the Biden administration have been blocked by federal courts, so in the short term it needs to comply with the decisions. The White House may try to come up with a different approach, but I’m sure that any of them will be challenged again in federal courts by Texas and other conservative states. The administration is between a rock and a hard place, trying to be more humane. Texas and other conservative states will not allow anything but the ‘Stay in Mexico’ policy. This is a crisis that has long been growing; it cannot be solved overnight. It is necessary to improve the economy and living conditions in Central America so that people do not suffer from the terrible poverty that forces them to leave. Something needs to be done about gangs in Central America. We must try to eradicate corruption so that people feel safer. And we need to fight climate change so that farmers in Central America can grow crops and feed their families. Migration is an issue for every country in the world. To some extent, the United States has been isolated from it for a long time. Now we face the same problems that other countries have faced for decades.” https://www.golosameriki.com/a/us-mexico-immigration-court/6354802.html (in Russian, with English translation available)

Mr. Yale-Loehr authored an op-ed published in The Hill, “With This Immigration Fix, Employers Can Hire the Workers They Need.” https://thehill.com/opinion/immigration/585322-with-this-immigration-fix-employers-can-hire-the-workers-they-need

Mr. Yale-Loehr was quoted by Bloomberg Tax in “Immigration Agency in Line for Billions in Fees in Spending Bill.” He noted that if the Senate passes the social spending bill, the question will become how quickly USCIS can make the necessary investments with the revenue boost to adjudicate the rush of new applications. “A lot will depend on how quickly the agency can ramp up,” he said. https://news.bloombergtax.com/payroll/immigration-agency-in-line-for-billions-in-fees-in-spending-bill

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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