ABIL Immigration Insider • October 2, 2022

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In this issue:

1. Agencies Release Hurricane Ian-Related Guidance – The Department of Labor’s Office of Foreign Labor Certification and the Department of Homeland Security, including U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, released guidance related to the effects of Hurricane Ian.

2. USCIS Extends Green Card Validity to 24 Months for Renewals – Lawful permanent residents who properly file Form I-90, Application to Replace Permanent Resident Card, to renew an expiring or expired green card may receive this extension.

3. Draft FAQs Released on H-2A Temporary or Seasonal Need Assessments, Comments Requested – The draft guidance pertains to the Office of Foreign Labor Certification’s assessment of the temporary or seasonal nature of an employer’s need for agricultural labor or services during review of the Form ETA-9142A, H-2A Application for Temporary Employment Certification.

4. Temporary Protected Status Extended and Redesignated for Burma (Myanmar) – The Department of Homeland Security is extending TPS for Burma (Myanmar) for an additional 18 months, from November 26, 2022, through May 25, 2024. DHS also redesignated Burma for TPS for the same reason, granting eligibility to Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of September 25, 2022.

5. Temporary Waiver of 60-Day Rule Extended for Civil Surgeon Signatures on Form I-693 – The waiver, which was effective until September 30, 2022, has been extended to March 31, 2023.

6. USCIS Stops Accepting CW-1 Petitions From Employers Under Disaster Recovery Workforce Act – Starting October 1, 2022, construction and extraction occupations are prohibited under the CW-1 program, except for long-term workers. USCIS said it continues to accept CW-1 petitions other than those seeking approval under the Disaster Recovery Workforce Act.

7. Biden Plans Executive Action to Protect DACA Recipients – According to reports, President Biden plans to take executive action to protect Deferred Action for Childhood Arrivals (DACA) “Dreamers” from removal if the Fifth Circuit Court of Appeals rules against DACA, which appears imminent.

8. USCIS Director, CIS Ombudsman Hold ‘Fireside Chat’ – The conversation included discussion of processing times; backlog reduction efforts; customer service; funding and congressional appropriations; the Ombudsman’s 2022 Annual Report to Congress; recommendations on USCIS’s fee-for-service funding model; and types of assistance the Ombudsman’s office provides to the public.

9. Problems Reported With Emergency ‘Satisfactory Departure’ Requests – According to reports, U.S. Citizenship and Immigration Services (USCIS) has told some practitioners that their ability to grant multiple satisfactory departure requests ended in April, but the agency has acknowledged that their public website has not yet been updated.

10. E-Verify Restores Client Company Enrollments – E-Verify employer agents can once again create and submit client enrollments.

11. COVID-Related Restrictions Expected to Ease at Canadian Border – According to unofficial reports, by the end of September, Canada may drop its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. Canada may also end COVID-19 for airport arrivals and no longer require filling out the ArriveCan app.

12. DHS Publishes Final Rule Implementing Court’s Vacatur of Two Rules on Asylum Applications, Interviews, and Work Authorization – The court decision requires U.S. Citizenship and Immigration Services to process all initial employment authorization document applications from asylum applicants within 30 days.

13. DOJ Secures Settlements With Four Companies for Discriminatory Job Advertising on College Recruiting Platforms – DOJ said that during its investigation, the agency learned about dozens of “facially discriminatory advertisements employers posted on Georgia Tech’s job recruiting platform as well as other platforms operated by colleges across the United States.”

14. USCIS Is Reviewing Policy Changes Related to Military Naturalization – USCIS will soon provide guidance and instructions for Calixto class members who may be eligible to apply for military naturalization.

15. Congress Passes Bill to Conduct Employment-Related Study of Foreign-Credentialed Immigrants and Refugees – Congress passed the “Bridging the Gap for New Americans Act” (S. 3157) to require the Department of Labor to submit to Congress a study on the factors affecting employment opportunities for certain individuals with professional credentials obtained in a non-U.S. country, specifically individuals who are lawfully present noncitizens or naturalized U.S. citizens. The study will include policy recommendations for better enabling such individuals to obtain skill-appropriate employment in the United States.

16. Indian Green Card Seekers Ask Court to End Federal Policy Placing Applications in ‘Legal Limbo’ – Plaintiffs argue that U.S. Citizenship and Immigration Services’ and the Department of State’s requirement that a visa must be available at both the time of filing and of approval of the application is wrong.

17. USCIS Implements Next Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions – This premium processing expansion only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver.

18. USCIS Reaches H-2B Cap for First Half of FY 2023 – U.S. Citizenship and Immigration Services announced that it has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2023.

19. Witnesses Testify at Senate Hearing on Importance of Immigrant Workers to U.S. Health Care System – One witness urged Congress to pass two pending bills: the Conrad State 30 and Physician Access Reauthorization Act, S. 1810 (H.R. 3541), and the Healthcare Workforce Resilience Act, S. 1024 (H.R. 2255).

20. Visa Bulletin for October Includes Several Retrogressions, Other Updates – The Department of State’s Visa Bulletin for October 2022 includes several updates, including retrogressions in the China-mainland born EB-5 unreserved categories and in the India employment second preference (E2) final action and application filing dates.

21. DHS Issues Final Rule on Public Charge Ground of Inadmissibility – DHS “will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

22. USCIS Releases Revised Forms I-589 and I-765 – U.S. Citizenship and Immigration Services is releasing revised editions of Form I-589, Application for Asylum and for Withholding of Removal, and Form I-765, Application for Employment Authorization.

23. DHS Announces Extension and Re-Registration Process for Current Venezuela TPS Beneficiaries, Special Student Relief – The Department of Homeland Security has taken several actions to provide relief for Venezuelans in the United States.

24. USCIS Releases FY 2023 Employment-Based Adjustment of Status FAQs – U.S. Citizenship and Immigration Services released updated fiscal year 2023 frequently asked questions on employment-based adjustment of status.

25. ETA Requests Comments on Proposed Revisions to Prevailing Wage Determination Application Forms – The Department of Labor’s Employment and Training Administration is requesting comments by October 11, 2022, on proposed revisions to the ETA-9141 and ETA-9165 forms.

26. Arlington Immigration Court Relocating to Annandale; EOIR to Open Court in Sterling – The Executive Office for Immigration Review announced several immigration court developments.

27. ABIL Global: Peru – This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.

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 – October 2022

1. Agencies Release Hurricane Ian-Related Guidance

The Department of Labor’s Office of Foreign Labor Certification (OFLC) and the Department of Homeland Security (DHS), including U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), released guidance related to the effects of Hurricane Ian.

OFLC

OFLC issued disaster guidance on September 29, 2022, regarding reasonable case accommodations in light of the damage done by Hurricane Ian.

Among other things, the guidance notes that the most effective means of communicating with OFLC is through the Foreign Labor Application Gateway (FLAG) or PERM Case Management System for each OFLC program. For employers or authorized attorneys or agents who are unable to communicate with OFLC through FLAG or the PERM system, the guidance provides alternative methods of contacting OFLC.

DHS

DHS issued guidance on September 28, 2022, reminding the public that ICE and CBP provide emergency assistance to individuals regardless of immigration status, and that DHS officials do not pose as individuals providing emergency-related information as part of any enforcement activity. Further, sites providing emergency response and relief are considered “protected areas.” DHS said that to the fullest extent possible, ICE and CBP “do not conduct immigration enforcement activities at protected areas such as along evacuation routes, sites used for sheltering or the distribution of emergency supplies, food or water, or registration sites for disaster-related assistance or the reunification of families and loved ones.”

Details:

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2. USCIS Extends Green Card Validity to 24 Months for Renewals

Effective September 26, 2022, U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of permanent resident cards (green cards) to 24 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card.

Lawful permanent residents who properly file Form I-90 to renew an expiring or expired green card may receive this extension. Form I-90 receipt notices had previously provided a 12-month extension of the validity of a green card. USCIS said it has updated the language on Form I-90 receipt notices to extend this validity to 24 months for individuals with a newly filed Form I-90.

On September 26, 2022, USCIS began printing amended receipt notices for individuals with a pending Form I-90. These receipt notices can be presented with an expired green card as evidence of continued status, USCIS said.

Details:

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3. Draft FAQs Released on H-2A Temporary or Seasonal Need Assessments, Comments Requested

The Department of Labor’s (DOL) Employment and Training Administration (ETA) published draft frequently asked questions (FAQs) for the H-2A temporary agricultural program, “Round 17: Temporary or Seasonal Need Assessments; Relevant Information or Factors Related to H-2A Labor Contractors (H-2ALCs) Operating in an Area of Intended Employment (AIE) Where Agricultural Production May Occur Year-Round.”

The draft guidance pertains to the Office of Foreign Labor Certification’s (OFLC) assessment of the temporary or seasonal nature of an employer’s need for agricultural labor or services during review of the Form ETA-9142A, H-2A Application for Temporary Employment Certification.

ETA invites written comments from the public by October 26, 2022, on the draft FAQs to further inform the development of guidance regarding OFLC’s assessment of temporary or seasonal need for the H-2A program.

Details:

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4. Temporary Protected Status Extended and Redesignated for Burma (Myanmar)

The Department of Homeland Security (DHS) is extending temporary protected status (TPS) for Burma (Myanmar) for an additional 18 months, from November 26, 2022, to May 25, 2024, due to a military coup in 2021 that has resulted in “extraordinary and temporary conditions in Burma that prevent individuals from safely returning.” DHS also redesignated Burma for TPS for the same reason, allowing eligibility to Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of September 25, 2022.

Current beneficiaries re-registering under the extension of TPS for Burma must do so during the 60-day re-registration period that began September 27, 2022, and runs through November 26, 2022, to ensure they keep their TPS and work authorization without a gap. DHS said it recognizes that not all re-registrants may receive new employment authorization documents (EADs) before their current EADs expire on November 25, 2022, so the agency is automatically extending the validity of EADs previously issued under the TPS designation of Burma through November 25, 2023.

Details:

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5. Temporary Waiver of 60-Day Rule Extended for Civil Surgeon Signatures on Form I-693

U.S. Citizenship and Immigration Services (USCIS) has extended its temporary waiver of the 60-day rule for civil surgeon signatures on Form I-693, Report of Medical Examination and Vaccination Record. The waiver, which was effective until September 30, 2022, has been extended to March 31, 2023.

The waiver applies to all Forms I-693 associated with applications for underlying immigration benefits that have not been adjudicated, regardless of when the application was submitted to USCIS or when a civil surgeon signed the Form I-693.

USCIS said the waiver will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes delayed immigration medical examinations, as well as applicants, including Afghan nationals evacuated under Operation Allies Welcome, who completed immigration medical examinations but could not apply for adjustment of status within 60 days of a civil surgeon signing their Form I-693.

Details:

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6. USCIS Stops Accepting CW-1 Petitions From Employers Under Disaster Recovery Workforce Act

U.S. Citizenship and Immigration Services (USCIS) said it will no longer accept CW-1 petitions filed by employers in the Commonwealth of the Northern Mariana Islands (CNMI) under the Disaster Recovery Workforce Act as of October 1, 2022.

Starting October 1, 2022, construction and extraction occupations are prohibited under the CW-1 program, except for long-term workers. USCIS said it will continue to accept CW-1 petitions other than those seeking approval under the Disaster Recovery Workforce Act.

Details:

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7. Biden Plans Executive Action to Protect DACA Recipients

According to reports, President Biden plans to take executive action to protect Deferred Action for Childhood Arrivals (DACA) “Dreamers” from removal if the Fifth Circuit Court of Appeals rules against DACA, which appears imminent. Such an order may take the form of allowing DACA recipients to remain in the United States if they pose no public safety or security threat.

A longer-term solution would require Congress to pass legislation, which is unlikely in the near term. Almost 700,000 DACA recipients could lose their work authorization otherwise.

Details:

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8. USCIS Director, CIS Ombudsman Hold ‘Fireside Chat’

U.S. Citizenship and Immigration Services (USCIS) Director Ur Jaddou and Citizenship and Immigration Services (CIS) Ombudsman Phyllis Coven held a “fireside chat” on September 21, 2022. They discussed challenges and accomplishments from fiscal year (FY) 2022 and looked ahead to FY 2023.

The conversation included discussion of processing times; backlog reduction efforts; customer service; funding and congressional appropriations; the Ombudsman’s 2022 Annual Report to Congress; recommendations on USCIS’s fee-for-service funding model; and types of assistance the Ombudsman’s office provides to the public.

Details:

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9. Problems Reported With Emergency ‘Satisfactory Departure’ Requests

According to reports, U.S. Citizenship and Immigration Services (USCIS) has told some practitioners that the ability to grant multiple “satisfactory departure” requests ended in April but acknowledged that the agency’s public website has not yet been updated. The website still says that “if an emergency (such as COVID-19) prevents the departure of a VWP [Visa Waiver Program] entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days.” For those who were already granted satisfactory departure but were unable to depart within the 30-day period because of COVID-19-related issues, “USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center,” the website says.

Practitioners state that this issue has been raised with USCIS and U.S. Customs and Border Protection liaisons.

Details:

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10. E-Verify Restores Client Company Enrollments

E-Verify announced on September 26, 2022, that it has resolved technical issues with client enrollments. According to E-Verify, employer agents can once again create and submit enrollments, and they will not experience any change in the process to enroll a new client.

For client enrollments pending registration, employer agents will need to re-send the Memorandum of Understanding (MOU) email to the previously identified MOU signatory or upload a signed signature page on the client’s behalf to complete the enrollment process.

Details:

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11. COVID-Related Restrictions Expected to Ease at Canadian Border

Canada has dropped its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. That border crossing handles more than 40,000 travelers each day, including commuters, truck drivers, and tourists. Canada is also ending COVID-19 vaccine requirements for airport arrivals and no longer requires filling out the ArriveCan app. Some provinces or individual businesses may continue to limit discretionary activities, such as visits to restaurants, bars, gyms, and retail shops, to individuals who can provide proof of COVID-19 vaccination.

It is unclear whether the United States will also drop similar land-border vaccine requirements. At present, all nonimmigrant, non-U.S. citizen air travelers to the United States must be fully vaccinated and provide proof of vaccination status before boarding an airplane to the United States. Fully vaccinated foreign nationals may enter the United States at land ports of entry (POEs) and ferry terminals. Fully vaccinated travelers do not need to provide a pre-entry COVID-19 test result to enter the United States by air, land, or sea. Fully vaccinated foreign travelers can travel to the United States across the Northern and Southwest borders with Canada (and Mexico). U.S. citizens and lawful permanent residents do not need to provide proof of vaccination status at land POEs and ferry terminals.

A group of Canadian legislators and border-area mayors from both countries published a letter on September 20, 2022, to Prime Minister Justin Trudeau and President Joe Biden asking them to remove the border restrictions.

Details:

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12. DHS Publishes Final Rule Implementing Court’s Vacatur of Two Rules on Asylum Applications, Interviews, and Work Authorization

The Department of Homeland Security published a final rule on September 22, 2022, that removes changes to regulatory text resulting from two final rules issued in June 2020, which were vacated by a federal district court in February 2022 in Asylumworks v. Mayorkas. The court decision requires U.S. Citizenship and Immigration Services (USCIS) to process all initial employment authorization document (EAD) applications from asylum applicants within 30 days. The decision vacated a June 22, 2020, rule that removed that requirement.

Details:

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13. DOJ Secures Settlements With Four Companies for Discriminatory Job Advertising on College Recruiting Platforms

On September 21, 2022, the Department of Justice (DOJ) announced that it entered into another four settlements to resolve claims that companies discriminated against non-U.S. citizens by posting job opportunities with unlawful citizenship status restrictions on college job recruiting platforms. The four agreements add to DOJ’s recent settlements with 16 other companies to resolve similar claims, bringing the total civil penalty amount for all 20 employers to over $1.1 million. The latest four companies include CarMax, Axis Analytics, Capital One Bank, and Walmart.

DOJ said its involvement began after a Georgia Institute of Technology (Georgia Tech) student, who was a lawful permanent resident at the time, filed a discrimination complaint with the Civil Rights Division’s Immigrant and Employee Rights Section. The student’s complaint alleged that Capital One Bank restricted a paid internship opportunity only to U.S. citizens when it posted the job on a Georgia Tech job recruitment platform. DOJ said that during its investigation, the agency learned about “dozens of other facially discriminatory advertisements employers posted on Georgia Tech’s job recruiting platform as well as other platforms operated by colleges across the United States.”

Details:

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14. USCIS Is Reviewing Policy Changes Related to Military Naturalization

On September 22, 2022, U.S. Citizenship and Immigration Services (USCIS) was notified of a settlement agreement between the U.S. Army and class members of the civil action in Calixto v. Department of the Army, Civ. A. No. 18-1551 (PLF) (D.D.C.). The Calixto settlement agreement affects USCIS’s military naturalization policies, and USCIS said it is reviewing policy changes based on the terms of this settlement agreement. USCIS will soon provide guidance and instructions for Calixto class members who may be eligible to apply for military naturalization.

Details:

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15. Congress Passes Bill to Conduct Employment-Related Study of Foreign-Credentialed Immigrants and Refugees

On September 19, 2022, Congress passed the “Bridging the Gap for New Americans Act” (S. 3157) to require the Department of Labor to submit to Congress a study on the factors affecting employment opportunities for certain individuals with professional credentials obtained in a non-U.S. country, specifically individuals who are lawfully present noncitizens or naturalized U.S. citizens. The study will include policy recommendations for better enabling such individuals to obtain skill-appropriate employment in the United States.

The study is to include: (1) an analysis of the employment history of applicable immigrants and refugees admitted to the United States during the five-year period immediately preceding the date of enactment; (2) an assessment of any barriers that prevent applicable immigrants and refugees from using occupational experience obtained outside the United States to obtain employment in the United States; (3) an analysis of available public and private resources assisting applicable immigrants and refugees who have professional experience and qualifications obtained outside of the United States to obtain skill-appropriate employment in the United States; and (4) policy recommendations for better enabling applicable immigrants and refugees who have professional experience and qualifications obtained outside of the United States to obtain skill-appropriate employment in the United States.

Details:

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16. Indian Green Card Seekers Ask Court to End Federal Policy Placing Applications in ‘Legal Limbo’

A group of green card seekers from India filed a motion for a temporary restraining order on September 15, 2022, in Datta v. Jaddou, asking a U.S. district court in the state of Washington to end a federal policy that pushes their applications into a “legal limbo.”

They argue that U.S. Citizenship and Immigration Services’ and the Department of State’s requirement that a visa must be available at both the time of filing and of approval of the application is wrong. Brad Banias, an attorney for the plaintiffs, said, “If there is a visa available at the time they filed for adjustment of status, that’s all that matters.”

Details:

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17. USCIS Implements Next Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on September 15, 2022, that it is implementing the next phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

This phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS explained.

USCIS is now accepting Form I-907, Request for Premium Processing Service, requests for:

  • E13 multinational executive and manager petitions received on or before January 1, 2022; and
  • E21 NIW petitions received on or before February 1, 2022.

USCIS has 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications.

Details:

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18. USCIS Reaches H-2B Cap for First Half of FY 2023

U.S. Citizenship and Immigration Services (USCIS) announced on September 14, 2022, that it has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year (FY) 2023. September 12, 2022, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2023. USCIS said it will reject new cap-subject H-2B petitions received after September 12, 2022, that request an employment start date before April 1, 2023.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
  • Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

USCIS alert, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

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19. Witnesses Testify at Senate Hearing on Importance of Immigrant Workers to U.S. Health Care System

On September 14, 2022, several witnesses testified at a hearing held by the Senate Subcommittee on Immigration, Citizenship, and Border Safety, “Flatlining Care: Why Immigrants Are Crucial to Bolstering Our Health Care.” Among them were Sarah K. Peterson, Principal Attorney, SPS Immigration PLLC, who testified about “smart immigration reform” to allow International Medical Graduates (IMGs,) international nurses, and other healthcare professionals to help address the United States’ “ongoing shortage of access to medical care, ensuring that all Americans are able to access basic, primary medical care regardless of where they live in the United States.”

Among other things, Ms. Peterson urged Congress to pass two pending bills: the Conrad State 30 and Physician Access Reauthorization Act, S. 1810 (H.R. 3541), and the Healthcare Workforce Resilience Act, S. 1024 (H.R. 2255). She said that passage of these bills would increase access to medical care and bring relief to underserved populations, and to J-1 physicians and international nurses. She noted, for example, that the Conrad bill would provide “cap gap” relief for J-1 trainees, similar to that provided to F-1 students working in Optional Practical Training status, whose work authorization expires before October 1 and whose employers have filed a cap-subject H-1B petition selected in the registration period. “Expanding this relief to physicians would provide employers with quicker access to necessary health care and allow these foreign national physicians to change status in the United States, without having to depart the United States, obtain a visa, and only be permitted to re-enter the U.S. months later. Cap gap work-authorization for U.S.-trained physicians would add a quarter of a year or more of badly needed physician coverage and is smart immigration reform,” she said.

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20. Visa Bulletin for October Includes Several Retrogressions, Other Updates

The Department of State’s (DOS) Visa Bulletin for October 2022, the first month of the new fiscal year, includes several updates:

  • Scheduled expiration of employment fourth preference (SR) Religious Workers category. Unless Congress extends this category, no SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight September 29, 2022. Visas issued before that date will be valid only until that date, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight September 29, 2022.
  • Retrogression of China-mainland born final action date and imposition of India final action date in the employment-based fifth preference unreserved categories (including C5, T5, I5, and R5). The final action date for the China-mainland born EB-5 unreserved categories for immigrant investors will retrogress in October due to heavy demand for numbers. Also, due to India demand, a final action date for October will be imposed in the EB-5 unreserved categories.
  • Retrogression of India employment second preference (EB-2) final action and application filing dates for October. Rapid forward movements of the India EB-2 final action and application filing dates during FY 2022 were made to maximize number use under the unprecedented high employment limit of 281,507. As a result, heavy applicant demand has materialized. Coupled with significantly lower visa number availability for India EB-2 for FY 2023 as compared with FY 2022, DOS said corrective action was required to keep number use within the maximum allowed under the FY 2023 annual limits.
  • Visa availability in the employment fourth category. High demand in this category may necessitate the establishment of a worldwide final action date in the coming months, DOS said.

Details:

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21. DHS Issues Final Rule on Public Charge Ground of Inadmissibility

The Department of Homeland Security (DHS) is amending its regulations, effective December 23, 2022, regarding determinations of whether noncitizens are inadmissible to the United States because they are likely at any time to become a public charge.

Secretary of Homeland Security Alejandro Mayorkas said DHS “will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.” These benefits include Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

Under the final rule, DHS will determine that a noncitizen is likely to become a public charge if the noncitizen is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

On August 14, 2019, DHS issued a different rule on this topic, which is no longer in effect.

Details:

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22. USCIS Releases Revised Forms I-589 and I-765

U.S. Citizenship and Immigration Services (USCIS) is releasing revised editions of Form I-589, Application for Asylum and for Withholding of Removal, and Form I-765, Application for Employment Authorization.

Effective November 7, 2022, USCIS will only accept editions of these forms dated 07/26/22. Until then, applicants can submit either the new or previous editions of these forms. USCIS cautioned, however, that “previous editions contain various instructions that have been rendered obsolete in light of the Asylumworks vacatur.” In that case, a U.S. district court vacated two rules.

Details:

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23. DHS Announces Extension and Re-Registration Process for Current Venezuela TPS Beneficiaries, Special Student Relief

The Department of Homeland Security (DHS) has taken several actions to provide relief for Venezuelans in the United States.

TPS extended. DHS has extended the designation of Venezuela for temporary protected status (TPS) for 18 months, effective September 10, 2022, through March 10, 2024. Existing TPS beneficiaries who wish to extend their status must re-register during the 60-day re-registration period that began on September 8, 2022, and runs through November 7, 2022.

DHS noted that re-registrants should re-register timely and not wait until their employment authorization documents expire because delaying re-registration could result in gaps in work authorization documentation.

Special student relief. DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Venezuela, regardless of country of birth (or individuals having no nationality who last habitually resided in Venezuela), and who are experiencing severe economic hardship as a direct result of the humanitarian crisis in Venezuela. Such students who were in lawful F-1 nonimmigrant student status on April 22, 2021, and are currently maintaining F-1 nonimmigrant student status may request work authorization, work an increased number of hours while school is in session, and reduce their courseloads while continuing to maintain status.

DHS said it will deem an F-1 nonimmigrant student who receives such employment authorization to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum courseload requirement described in the notice.

Details:

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24. USCIS Releases FY 2023 Employment-Based Adjustment of Status FAQs

U.S. Citizenship and Immigration Services (USCIS) released updated fiscal year (FY) 2023 frequently asked questions on employment-based (EB) adjustment of status. The introduction to the FAQs notes that the EB annual limit for FY 2023 will be higher than was typical before the pandemic but lower than in FYs 2021 and 2022. USCIS reiterated that it is “dedicated to ensuring we use as many available employment-based visas as possible in FY 2023,” which ends on September 30, 2023.

The FAQs note that the Department of State currently estimates that the FY 2023 employment-based annual limit will be approximately 200,000 due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

Details:

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25. ETA Requests Comments on Proposed Revisions to Prevailing Wage Determination Application Forms

The Department of Labor’s Employment and Training Administration is requesting comments by October 11, 2022, on proposed revisions to the Application for Prevailing Wage Determination (Form ETA-9141) and Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OES Survey) (Form ETA-9165).

Details:

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26. Arlington Immigration Court Relocating to Annandale; EOIR to Open Court in Sterling

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced on September 9, 2022, that the Arlington Immigration Court in Virginia will end normal operations at noon on October 6, 2022, to prepare for the court’s relocation to Annandale, Virginia. Staff will remain on site to accept phone calls and filings at the Arlington Immigration Court until October 17, 2022. However, all hearings scheduled at the Arlington Immigration Court after October 5 will be rescheduled to the Annandale Immigration Court.

EOIR said it will notify parties whose cases are affected. On October 17, 2022, hearings will start at the Annandale Immigration Court, the Annandale filing window and phone lines will open, and the Arlington Immigration Court will close.

Also, EOIR is opening a new immigration court in Sterling, Virginia, on October 3, 2022. The Sterling Immigration Court will include 19 immigration judges.

Details:

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27. ABIL Global: Peru

This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.

Now that concerts and artistic events are now being held again globally following the lifting of COVID-19 pandemic-related restrictions in many areas, the Artist visa for foreigners coming to perform artistic activities in Peruvian territory should once again be considered.

The appropriate migratory status to authorize foreigners to perform artistic activities in Peru is called “Temporary-Artistic.” This status allows the foreigner to carry out paid activities linked to artistic, cultural, or other similar pursuits, by virtue of a contract executed in accordance with current Peruvian legislation. This contract must be signed before the artist enters the country and extends to the artist’s entourage.

The process must begin in MIGRACIONES’ offices in Lima before the artist and entourage enter. Once the file is approved, within 30 business days according to MIGRACIONES’ regulations (it takes longer nowadays in reality), the applicant and team must go to the Peruvian consulate abroad, where the visas are stamped in their passports.

Qualifications for this migratory status include:

  • Their entry must not represent a risk to national security, internal order, or public order.
  • Applicants must remain abroad until they obtain their visas granted by MIGRACIONES at the Peruvian consulate chosen abroad and indicated in their file.
  • There must be a signed contract executed according to current regulations to support the visa of the artist and entourage.
  • Competent authorities must verify that the foreign persons will only carry out what is established in their contract.

This visa is valid for a single entry with a maximum of 90 calendar days of stay and is not renewable.

The administrative procedure for the Temporary-Artistic Visa Application with Consular Phase is the one through which the artistic migratory status/visa will be granted. The visa, approved by MIGRACIONES, will be authorized at the corresponding Peruvian consulate at the discretion of the Peruvian state.

Required documents and requisites to be complied with to obtain this kind of visa are indicated in the MIGRACIONES’ T.U.P.A. See https://www.gob.pe/institucion/migraciones/informes-publicaciones/2770424-texto-unico-de-procedimientos-administrativos-tupa

For the approval of the visa procedure, MIGRACIONES can verify compliance with the conditions established in the related regulations applicable to migratory status. Application requests must be made for each artist/person, not as a group. Any document in a foreign language (not Spanish) must be officially translated in Peru and be apostilled or contain the corresponding legalization chain, if applicable.

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New Publications and Items of Interest

Engagement on USCIS immigrant investor program. U.S. Citizenship and Immigration Services (USCIS) announced a stakeholder engagement for the EB-5 immigrant investor program to be held Wednesday, October 19, 2022, from 2 to 3 pm ET. USCIS will share updates on the program and hold a question-and-answer session. Questions can be submitted by 4 pm Friday, September 16, 2022, via email to [email protected], with the subject line “Question: EB-5 Engagement October 19, 2022.” To register, go to https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_676, provide your email address, and select “Submit.”

USCIS public charge national stakeholder engagement. U.S. Citizenship and Immigration Services (USCIS) held a virtual public stakeholder engagement on September 29, 2022 on the recently published public charge final rule. USCIS provided updates on key provisions and was be joined by several federal agencies that manage benefits and other supplemental government services. https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-public-charge-national-stakeholder-engagement

E-Verify website redesigned. The redesigned E-Verify website is now live. The redesign includes a news widget highlighting program updates, a new social media widget sharing Tweets, content changes to “provide a better user experience for both employers and employees,” a more powerful search engine, and a new feedback feature for users to share their experiences, among other updates. https://www.e-verify.gov/e-verifygov-redesigned

U.S. citizenship fact sheet and updates. U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet and updates as part of its Citizenship Day 2022 celebration. USCIS said it “has taken a wide range of actions since then to help prospective applicants overcome barriers to citizenship and to promote naturalization, and has documented progress in reports, fact sheets, and accomplishment highlights.” https://www.uscis.gov/sites/default/files/document/fact-sheets/USCIS_Celebrates_Citizenship_Day.pdf (fact sheet); https://www.uscis.gov/promotingnaturalization (website).

Engagement on DACA final rule. U.S. Citizenship and Immigration Services (USCIS) announced a national stakeholder engagement on the Deferred Action for Childhood Arrivals (DACA) final rule, held September 22, 2022. https://www.uscis.gov/outreach/upcoming-national-engagements/deferred-action-for-childhood-arrivals-final-rule-national-stakeholder-engagement

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

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Foster LLP announced that Elizabeth LaRocca has joined Foster as a Partner in Foster’s expanding Dallas office. Dana Delott also has joined the Dallas office as a Senior Attorney. Both concentrate their practices in business immigration law. https://www.fosterglobal.com/blog/foster-llp-welcomes-elizabeth-larocca-and-dana-delott/

Klasko Immigration Law Partners announced:

  • Ronald Klasko, William A. Stock (https://www.abil.com/abil-lawyers/william-stock/), and Elise A. Fialkowski are included in the 29th edition of The Best Lawyers in America in the area of immigration law.
  • Natalia Gouz, Michele Madera, Maria Mihaylova, and Karuna Simbeck are recognized in the 2023 Edition of Best Lawyers: Ones to Watch for their outstanding professional excellence in immigration law.

Klasko Immigration Law Partners released a new podcast in their “Statutes of Liberty” series. In “Episode 30: EB-5 Litigation Victory,” Mr. Klasko and Dan Lundy talk with Anu Nair about a major litigation victory on which they were co-counsel. Klasko ILP said the litigation “is significant because USCIS had put restrictions on the EB-5 regional center program that went beyond what Congress intended when it reinstated the program in March 2022, which would have killed the program for years.” Ms. Nair asks Mr. Klasko and Dan Lundy to explain the importance and the details of the settlement and what it means for regional centers and investors moving forward.

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) authored “DACA Immigrants Could Help Solve Georgia’s Workforce Shortage,” which was published by Global Atlanta as part of its annual advertising partnership with Kuck Baxter Immigration. https://www.globalatlanta.com/daca-immigrants-could-help-solve-georgias-workforce-shortage/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Jessica Paszko co-authored a new blog posting: “Solutions for the Family Member Who Did Not Get the Employment Based Green Card with the Principal Family Member on September 30, 2022.”

Mr. Mehta and Kaitlyn Box co-authored a new blog posting: “Asylum Seekers Are Legally in the U.S. Notwithstanding the Political Stunts of Governors Abbott and DeSantis.”

Mr. Mehta authored a new blog posting: “Will USCIS Waste Precious Employment Based Green Cards as it Announces Push to Use as Many as Possible by September 30?”

Wolfsdorf Rosenthal LLP has published a new blog posting: “Demystifying the Complicated October 2022 Visa Bulletin—What Does It Mean for EB-5 Investors?” https://wolfsdorf.com/demystifying-the-complicated-october-2022-visa-bulletin-what-does-it-mean-for-eb-5-investors/

Bernard Wolfsdorf (https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) was quoted by Bloomberg in “Controversial U.S. Visa Draws Rich From China to India After Reset.” Mr. Wolfsdorf said his firm, Wolfsdorf Rosenthal LLP, has been working overtime and hiring new staff to adjust to demand from countries like India, which has eclipsed the number of petitions filed from China. Drawing such investors could help prevent a brain drain because many wealthy emigrants’ children study at top U.S. schools, he said. https://bloom.bg/3Sxd0M8

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was featured by the “Rational Middle” podcast series in “Stephen Yale-Loehr and the Stories of Immigrants.” He discussed his work in immigration law and research on refugees in the United States. https://rationalmiddle.com/podcast/episode-143-stephen-yale-loehr-and-the-stories-of-immigrants/

Mr. Yale-Loehr, faculty director of the immigration law and policy research program at Cornell Law School, announced that the Law School has hired two postdoctoral research associates, Janine Prantl and Jacob Hamburger, and two distinguished visiting scholars, Charles Kamasaki and Randel Johnson, to expand on its research capabilities in this area. In 2021, Cornell Law School received a grant of $1.6 million from the Charles Koch Foundation for a two-year project to study ways to improve immigration law and policy. Mr. Yale-Loehr said, “Cornell Law School already had a strong immigration scholar base. Adding these four new people will make us even more preeminent in this important area.” https://www.lawschool.cornell.edu/news/cornell-law-school-welcomes-new-immigration-postdocs-and-scholars/

Mr. Yale-Loehr was quoted by the Gothamist in “For Asylum Seekers, Manhattan is Only Part of a Harrowing Journey.” Regarding asylum seekers who have come from Venezuela to New York City, Mr. Yale-Loehr said, “It is too soon to tell what percentage of Venezuelans will qualify for asylum. Because of backlogs in the asylum process, it could be years before we will know.” https://gothamist.com/news/for-asylum-seekers-manhattan-is-only-part-of-a-harrowing-journey

Mr. Yale-Loehr was quoted by the Daily Caller in “Will DeSantis Be Convicted for Kidnapping Over Martha’s Vineyard Flights? Experts Say It’s Unlikely.” Mr. Yale-Loehr said he thought claiming Republican governors were guilty of human trafficking for sending migrants out of state was an “exaggeration,” adding that “illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law. The bottom line: It is a stretch to claim that Republican governors are violating human trafficking laws or laws that bar illegal transportation of migrants.” https://dailycaller.com/2022/09/20/desantis-human-trafficking-migrants/

Mr. Yale-Loehr was interviewed by NBC LatinX about migrants being transported from the southern United States to Martha’s Vineyard, Massachusetts. The six-minute video is at https://www.lx.com/social-justice/thousands-of-migrants-are-being-transported-north-to-democrat-led-cities/58045/

Mr. Yale-Loehr was quoted by the New York Daily News in “NYC Asks Feds to Fast-Track Work Papers for Migrants and Busing Crisis.” Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services was “decimated” under former President Donald Trump’s administration. “[The Biden administration is] making huge efforts to adjudicate work permit applications for asylum seekers more quickly. But it is going to take some time to improve the processing times because of the deep hole that the prior administration put them into,” he said

Mr. Yale-Loehr was quoted by Yahoo News in “After 10 Years of DACA, Dreamers Still Live in Legal Limbo.” The article discusses a new Biden administration rule designed to fortify the Deferred Action for Childhood Arrivals Program (DACA). The article quotes an op-ed Mr. Yale-Loehr co-authored about the program, published in Slate: “Because the Biden administration chiefly focused on its battle with the courts, the new rule fails to adopt any substantive measures to expand or strengthen the DACA program. Most conspicuously, the government declined to extend the date that a young immigrant must have arrived in the United States to apply for DACA. … [It] effectively set an expiration date for DACA regardless of what the courts decide.” https://news.yahoo.com/after-10-years-of-daca-dreamers-still-live-in-legal-limbo-224145492.html

Mr. Yale-Loehr was quoted by Boundless in “With DACA Program Frozen in Time, Dreamers Await Court Ruling.” The article quotes an op-ed Mr. Yale-Loehr co-authored about the program, published in Slate: “By keeping the original eligibility date, the administration effectively set an expiration date for DACA regardless of what the courts decide.” https://www.boundless.com/blog/dreamers-await-court-ruling/

Mr. Yale-Loehr was quoted by Newsweek in “Did DeSantis and Abbott Break Law with Migrant ‘Stunt’? Experts Weigh In.” Mr. Yale-Loehr said the situation was unlikely to meet the grounds for a credible human trafficking case under either state or federal laws. “Each law varies, but many laws define human trafficking as recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. As such, I think it is an exaggeration to claim that governors in Republican states are engaging in human trafficking by sending migrants to other states. In most cases that I have heard about, migrants have been happy to accept bus or plane tickets, even if they don’t know where they are going.” Mr. Yale-Loehr argued that while federal law prohibiting illegal transportation of migrants presented theoretically steadier grounds for criminal prosecutions, the chances of even that sticking were vanishingly thin. “That presents a closer case than the human trafficking argument. Still, illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law. The bottom line is that it is an exaggeration to claim that Republican governors are violating human trafficking laws or violating laws that bar illegal transportation of migrants.” https://www.newsweek.com/did-desantis-abbott-break-law-migrant-stunt-experts-weigh-1743910

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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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