ABIL Immigration Insider • September 1, 2022

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In this issue:

1. Visa Bulletin for September Notes ‘Steady Increase’ in Demand for Employment-Based Visas – Beginning September 1, 2022, U.S. Citizenship and Immigration Services will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 applications or petitions with related forms.

2. E-Verify Updates Initial Enrollment Process – The updates include new screens and requirements to ensure consistency with other pages in E Verify.

3. COVID-19 Vaccination Requirements Updated for Ukraine Parolees – All beneficiaries under the Uniting for Ukraine program aged 6 months and older must submit an attestation that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States, unless they are eligible for an exception.

4. DHS, DOL Publish Semiannual Regulatory Agendas – The agendas give an overview of what the agencies are considering during the upcoming one-year period.

5. EOIR Warns of Scammers Spoofing Agency Phone Number – In this scam, fraudulent callers posing as Executive Office for Immigration Review employees or officers advise individuals that their social security number has been compromised and request money from the victims.

6. DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification – The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.

7. Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers – Visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.

8. USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers – U.S. Citizenship and Immigration Services issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).

9. OFLC Releases Public Disclosure Data, Statistics, Foreign Labor Recruiter List and FAQ – The Department of Labor’s Office of Foreign Labor Certification has released new information.

10. DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy – The rule, effective October 31, 2022, continues the Deferred Action for Childhood Arrivals policy announced in a 2012 memorandum that DACA recipients should not be a priority for removal.

11. USCIS Reaches FY 2023 H-1B Cap – U.S. Citizenship and Immigration Services has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for FY 2023.

12. DV-2023 Selectees Only Need to Submit Application Form to Kentucky Consular Center, Not Supporting Docs, DOS Says – For DV-2023, selectees only need to submit to the Kentucky Consular Center the DS-260 immigrant visa application form for themselves and any accompanying family members, not supporting documentation.

13. E-Verify Reports System Outages During Case Creation – Users may experience system timeouts and increased processing times when creating and submitting cases.

14. Labor Dept. Reports FLAG System Issues – The Department of Labor recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

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

Download:

ABIL Immigration Insider – September 2022 – 1
ABIL Immigration Insider – September 2022 – 2

ABIL Immigration Insider – September 2022 – 3

1. Visa Bulletin for September Notes ‘Steady Increase’ in Demand for Employment-Based Visas

The Department of State’s (DOS) Visa Bulletin for September notes a steady increase in both U.S. Citizenship and Immigration Services and Department of State demand patterns for employment-based visas during the fiscal year. As a result, the Department expects that most employment-based preference category limits and/or the overall employment-based preference limit for FY 2022 to be reached during September. If the annual limit were reached, “it would be necessary to immediately make the preference category ‘unavailable,’ and no further requests for numbers would be honored,” the bulletin states.

For adjustment of status filing dates for September 2022, the Final Action Dates chart in the Visa Bulletin must be used for employment-based preference categories.

The bulletin also notes that the worldwide employment-based preference numerical limit for FY 2022 is 281,507.

Details:

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2. E-Verify Updates Initial Enrollment Process

E-Verify notified users via email on August 11, 2022, that it has updated the Initial Enrollment process. The updates include new screens and requirements to ensure consistency with other pages in E‑Verify. As a result, several changes affect users:

  • Anyone enrolling a company in E‑Verify will have to set up a temporary user account to complete the enrollment process. This person is called the Enrollment Point of Contact (POC). The Enrollment POC is a different role from the POC on the E‑Verify account and can only access E‑Verify to complete a company enrollment.
  • The person identified as the Memorandum of Understanding (MOU) signatory will become the E‑Verify POC. Program Administrators added during enrollment will not become E‑Verify POCs.
  • Corporate Administrators are not required to sign an MOU. As a result, the Corporate Administrator user will be the E‑Verify POC.
  • Only one Corporate Administrator user can be added during the enrollment process.
  • Corporate Administrators who add a new child company location (employer) must add an MOU signatory and at least one Program Administrator for the child company they are enrolling in E‑Verify.

 

 

Details:

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3. COVID-19 Vaccination Requirements Updated for Ukraine Parolees

The Department of Homeland Security (DHS) has updated the COVID-19 vaccination requirements for beneficiaries paroled into the United States under the “Uniting for Ukraine” program. Effective August 10, 2022, all beneficiaries aged 6 months and older must submit an attestation that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States, unless they are eligible for an exception.

Previously, beneficiaries younger than five years old qualified for an exception to the COVID-19 vaccination requirement because the vaccine was not approved or licensed for use in that age group.

Details:

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4. DHS, DOL Publish Semiannual Regulatory Agendas

On August 8, 2022, the Departments of Homeland Security (DHS) and Labor (DOL) published their semiannual regulatory agendas, which summarize projected and existing regulations. The agendas give an overview of what the agencies are considering during the upcoming one-year period. Below are selected highlights:

  • Among other things, DHS plans to propose adjusting the fees charged by U.S. Citizenship and Immigration Services (USCIS) for immigration and naturalization benefit requests. On August 3, 2020, DHS adjusted the fees, imposed new fees, revised certain fee waiver and exemption policies, and changed certain application requirements via a rule. DHS was preliminarily enjoined by court order from implementing that rule. This rule would rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees.
  • Also, DOL’s Employment and Training Administration and Wage and Hour Division, and DHS/USCIS, plan to jointly propose to amend H-2B nonimmigrant visa program regulations. The proposed rule would establish standards and procedures for employees seeking to hire foreign temporary nonagricultural workers for certain itinerant job opportunities, including entertainers and carnivals and utility regulation management.

Details:

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5. EOIR Warns of Scammers Spoofing Agency Phone Number

The Executive Office for Immigration Review (EOIR) announced that it has recently been notified of phone calls that spoof the Arlington Immigration Court as part of a misinformation campaign. The callers often “spoof,” or fake, the immigration court’s main line, 703-305-1300, so the calls appear to be coming from EOIR on the recipient’s caller ID.

In this scam, fraudulent callers posing as EOIR employees or officers advise individuals that their social security number has been compromised and request money from the victims.

Questions about individual immigration court cases may be directed to the Automated Case Information Hotline at 1-800-898-7180, the Automated Case Information System, or the Immigration Court Online Resource.

Details:

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6. DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification

On August 18, 2022, the Department of Homeland Security (DHS) proposed a rule to allow for alternative document verification procedures for Form I-9, Employment Eligibility Verification. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.

According to the notice of proposed rulemaking (NPRM), such procedures could be implemented as part of a pilot program; upon the Secretary’s determination that such procedures offer an equivalent level of security; or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services under the Public Health Service Act, or a national emergency declared by the President under the National Emergencies Act.

The NPRM notes that in light of advances in technology and remote work arrangements, the Department of Homeland Security (DHS) is exploring alternative options, including making permanent some of the COVID-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I–9. The rule would not create such alternatives but would instead formalize the authority for the DHS Secretary “to extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option (in addition to the procedures set forth in regulations) for some or all employers, regardless of whether their employees physically report to work at a company location.” DHS said it would introduce any such alternative procedure in a future Federal Register notice.

Details:

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7. Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers

According to reports, visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.

For example, excluding student and visitor visas, wait times for visas in Istanbul, Turkey, exceed 16 months; in New Delhi, India, wait times hover at nine months for the thousands of highly skilled temporary workers coming to the United States on H-1B and L-1 visas. Business visa processing in Chile can take up to three years.

The delays are thought to be at least partly the result of increased travel demand related to the COVID-19 pandemic, staffing issues at embassies and consulates, and a two-year shutdown of processing guestworker visas by the Trump administration. Some business groups and immigration attorneys advocate measures such as allowing remote interviews or permitting those with expiring visas to renew in the United States rather than requiring them to leave the country as a way of relieving backlogs. Reportedly, the Department of State (DOS) is considering such options. Meanwhile, DOS said it has doubled hiring of consular staff in fiscal year (FY) 2022 over FY 2021, and noted that “[n]early all U.S. embassies and consulates have resumed full visa services.”

Details:

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8. USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers

On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).

The update does not make changes to existing policy or create new policy. The update consolidates and updates guidance previously included in the Adjudicator’s Field Manual, Chapter 32, as well as related appendices and policy memoranda.

Details:

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9. OFLC Releases Public Disclosure Data, Statistics, Foreign Labor Recruiter List and FAQ

The Department of Labor’s Office of Foreign Labor Certification has released:

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10. DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy

The Department of Homeland Security (DHS) announced a final rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children. DACA allows beneficiaries an opportunity to receive a renewable, two-year work permit. DHS said that DACA has allowed more than 800,000 young people, dubbed “Dreamers,” to remain in the United States.

The rule, effective October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It continues the DACA policy announced in a 2012 memorandum from Janet Napolitano, then-Secretary of Homeland Security, that DACA recipients should not be a priority for removal. DHS received more than 16,000 comments during the public comment period. The final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:

  • Maintains the existing threshold criteria for DACA;
  • Retains the existing process for DACA requestors to seek work authorization; and
  • Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

DHS noted that it may grant DACA renewal requests under the final rule but cannot grant initial DACA requests and related employment authorization due to a court injunction that remains in partial effect.

Advocates, including representatives from the American Immigration Lawyers Association and the American Immigration Council, hailed the Biden administration’s “positive step” but called for Congress to act also.

Details:

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11. USCIS Reaches FY 2023 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

USCIS said it has completed sending non-selection notifications to registrants’ online accounts. The status of such registrations will show as “Not Selected.” USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, are exempt from the FY 2023 H-1B cap. USCIS said it will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

Details:

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12. DV-2023 Selectees Only Need to Submit Application Form to Kentucky Consular Center, Not Supporting Docs, DOS Says

The Department of State (DOS) announced on August 25, 2022, that for the Diversity Visa (DV) program for fiscal year 2023 (DV-2023), selectees 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 a DS-260 is received from the selectee, KCC will next review it for completeness, after which the case will be eligible to be scheduled for a visa interview if the selectee’s visa case number is current as reflected in the Visa Bulletin, DOS said. The agency noted that this continues the practice that began during the last program year, and said a “data-driven decision” would be made later for future program years.

DOS said that selectees should not submit to the KCC any other required supporting documents; instead, “all supporting documents for DV-2023 selectees will be collected and evaluated in connection with the interview at the embassy or consulate where the visa application is made.”

Details:

  • “Diversity Visa 2023 Update: Document Submission to KCC for DV-2023,” Dept. of State, Aug. 25, 2022,

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13. E-Verify Reports System Outages During Case Creation

E-Verify reported that it is experiencing intermittent system outages. As a result, “users may experience system timeouts and increased processing times when creating and submitting cases,” E-Verify said, adding that it is working to resolve the issue.

Employers must continue to complete and retain a Form I-9 for every person hired to work for pay in the United States within the required timeframes, E-Verify noted.

Details:

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14. Labor Dept. Reports FLAG System Issues

The Department of Labor announced on August 24, 2022, that the Foreign Labor Application Gateway (FLAG) system “continues to experience intermittent issues when creating certain application forms, appendices, or other decision documents through Adobe PDF.” DOL recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

DOL said users should contact the FLAG Technical Help Desk Team if any decision document appears incomplete or otherwise contains inaccuracies.

Details:

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New Publications and Items of Interest

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

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 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 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

Kristin Peresta, of Klasko Immigration Law Partners, LLP (KILP), was recently awarded the Lisa Felix Award. Lisa Felix was an attorney at KILP who died in 2020 after a long illness. Ms. Peresta, KILP’s Director of Client Communications & Workload, was awarded the inaugural Lisa Felix Award “for her innate ability to spread unconditional, unwavering, and selfless kindness among the KILP community.”

Alison Li has joined Klasko Immigration Law Partners, LLP, as an associate attorney. She has nearly a decade of immigration law experience and works with regional centers, developers, and investors who seek to use foreign investment capital under the EB-5 program to fund job-creating projects. In addition to her work in EB-5, Ms. Li has assisted numerous clients in obtaining E, H, and L visas, among others. She has experience in consular processing through U.S. embassies and consulates worldwide. https://chambers.com/articles/klasko-immigration-law-partners-welcomes-associate-alison-li

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored a new blog post, “Will Head of Team Anywhere and Other New Fangled Jobs That Have Popped Up During the Pandemic Be Able to Fit Under Existing Visa Categories?”

Mr. Mehta and Kaitlyn Box co-authored a new blog post, “A Practical Guide to Spending the 3 and 10 Year Bars in the United States.” http://blog.cyrusmehta.com/2022/07/a-practical-guide-to-spending-the-3-and-10-year-bars-in-the-us.html

Charina Garcia and Melissa Harms, of Wolfsdorf Rosenthal LLP, will moderate two programs at the Worldwide ERC’s Global Workforce Symposium in October 2022. Ms. Garcia will moderate “Relationship Building Through Tech – How Immigration Tech Can Focus on a Workforce’s Well-Being,” a discussion on immigration management technologies and the relationship between mobility technologies, well-being, and human connection. Ms. Harms will moderate “DEIA Global Mobility Playbook: Issues Facing the LGBTQ+, Transgender and Gender Diverse Employee,” a discussion on the emergence of LGBTQ+ inclusive global mobility programs, issues related to relocating internationally to locations that criminalize transgender or sexual preference diversity; the process and impact of changing name or gender markers on national identity documents; and traveling and screening procedures for transgender and gender-diverse/fluid people. https://wolfsdorf.com/wr-immigration-honored-to-lead-two-groundbreaking-discussions-at-wercs-global-workforce-symposium/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored a new blog post: “Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo.” http://blog.cyrusmehta.com/2022/08/justice-barrett-and-the-fate-of-the-mayorkas-prosecutorial-discretion-memo.html

Wolfsdorf Rosenthal Immigration and Banias Law filed a complaint in the U.S. District Court for the District of Columbia on August 5, 2022, on behalf of hundreds of Chinese foreign national plaintiffs. The complaint asks the court to compel the Department of State to authorize FY 2022 EB-5 immigrant visa numbers to be allocated to all plaintiffs and their families by September 30, 2022, and to process their immigrant visa applications promptly. https://wolfsdorf.com/press-release-wr-immigration-files-lawsuit-to-stop-wastage-of-eb-5-investor-visas/

Charles Foster and Avalyn Langemeier will present a Foster LLP webinar, “Is Immigration Good for America?,” on Wednesday, August 31, 2022. The webinar will highlight the benefits of immigration to the United States. HR professionals can expect to learn about the contributions immigrants have made to the United States and the benefits they bring. https://register.gotowebinar.com/register/962752597448065803

Foster LLP announced that 16 Foster immigration attorneys were included in the 2023 Best Lawyers in America list. The guide honored firm lawyers in Austin, Dallas, and Houston, Texas, with a concentrated focus on immigration law. The Foster attorneys listed were:

Charles C. Foster

Andres Zamberk

Avalyn Castillo Langemeier

Brenda G. Hicks

Elise A. Healy

Florence L. Luk

Helene N. Dang

John W. Meyer

José R. Pérez, Jr.

Layla Panjwani

Nestor A. Rosin

Philip A. Eichorn

Robert F. Loughran (https://www.abil.com/abil-lawyers/robert-f-loughran/)

Sandra I. Dorsthorst

Two Foster attorneys were listed as Best Lawyers: “Ones to Watch”: Diana Dominguez and Vi Nguyen.

A new video from Wolfsdorf Rosenthal Immigration features Managing Partner Bernard Wolfsdorf (https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) describing the culture and success of his firm and how it has grown over the years. https://wolfsdorf.com/managing-partner-bernie-wolfsdorf-on-the-culture-and-success-of-wr-immigration/

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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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