ABIL Immigration Insider • March 5, 2023

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In this issue:

1. USCIS Reaches H-2B Cap for Second Half of FY 2023, Announces Filing Dates for Supplemental Visas – U.S. Citizenship and Immigration Services (USCIS) has received enough petitions to meet the H-2B cap for the second half of FY 2023. USCIS also announced the filing dates for supplemental H-2B visas for the remainder of FY 2023 made available under the FY 2023 H-2B supplemental visa temporary final rule.

2. USCIS to Start Collecting Hefty Fees for ‘EB-5 Integrity Fund’ – The fee is $20,000 for regional centers with more than 20 investors and $10,000 for those with 20 or fewer investors.

3. DOS Issues Final Rule Updating Regulation on Signed Photos for Visa Processing – The final rule clarifies that immigrant and nonimmigrant visa applicants may upload digital photographs electronically as part of the online visa application process in lieu of submitting ink-signed photographs.

4. USCIS Updates Guidance on On-Site Inspections for Religious Worker Petitions – For special immigrant and nonimmigrant religious worker petitions, the guidance explains that USCIS randomly selects religious worker petitions for on-site inspections, which normally occur after the approval of the petition, and which include inspections of the work locations to verify the religious worker’s work hours, compensation, and duties.

5. DOL Final Rule Revises AEWR Methodology for H-2A Non-Range Occupations – The Department of Labor issued a final rule effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates for non-range occupations (i.e., all occupations other than herding and production of livestock on the range).

6. USCIS Issues Guidance on Eligibility for O-1B Visa Classification – USCIS clarified how it evaluates evidence to determine eligibility for O-1B nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television industry.

7. Biden Administration Proposes Controversial Rule on ‘Temporary’ Measures to Limit Asylum at Southwest Border – The Biden administration issued a new proposed rule that it called “temporary,” which introduces a “rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.”

8. USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions – U.S. Citizenship and Immigration Services has released policy guidance to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are authorized to work under the SSR provisions.

9. F and M Student Visas Can Be Issued Up To a Year in Advance, State Dept. Says – F and M student visas for new students now can be issued up to 365 days before the start date for a course of study. However, the student cannot enter the United States on a student visa more than 30 days before the start date.

10. DHS Extends Comment Period for Fee Rule; USCIS Releases Fact Sheet on Fee Waivers for Naturalization Applications – The Department of Homeland Security has extended by five days, to March 13, 2023, the comment period for a rule proposing to change the fee schedule for certain immigration benefits.

11. USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on a Blanket L Petition – U.S. Citizenship and Immigration Services seeks comments on a proposed revision of the nonimmigrant petition based on a blanket L intracompany transferee petition.

12. March Visa Bulletin Includes Updates on Visa Availability in Coming Months – The Department of State’s Visa Bulletin for March 2023 includes updates on visa availability in various categories, including possible retrogressions in the coming months.

13. E-Verify Recommends Timeframes to Resolve Certain Social Security Mismatches; Deadline is September 29, 2023 – E-Verify recommends that employees with E-Verify Social Security Administration (SSA) Tentative Nonconfirmation mismatch cases falling within certain timeframes to visit their local SSA offices within preferred date ranges, and that all affected employees must visit SSA to resolve their mismatch by September 29, 2023.

14. Ninth Circuit Agrees to Rehear Temporary Protected Status Case – The U.S. Court of Appeals for the Ninth Circuit has agreed to rehear a case, Ramos v. Mayorkas, filed by temporary protected status (TPS) recipients and their children, thus granting at least a temporary reprieve to an estimated 300,000 affected TPS recipients.

15. Fourth Circuit Affirms Denial of Employer’s Petition for Multinational Executive/Manager – The court noted that to establish whether an employee works or has worked in a managerial or executive role, the sponsoring employer must submit a detailed list of the job-related tasks the putative beneficiary performs or has performed; general or vague descriptions are insufficient.

16. United States, Mexico Sign MOU on Temporary Foreign Workers – The United States and Mexico have signed a memorandum of understanding “to strengthen protections for workers participating in temporary foreign worker programs,” the Department of Labor reported.

17. Chief Administrative Hearing Officer Requests Amicus Briefs on Immigration-Related Document Fraud – The Justice Department has invited interested members of the public to file amicus curiae briefs on the question of whether the knowing use of a forged, counterfeit, altered, or falsely made document to obtain employment and complete the Form I-9 employment eligibility verification form constitutes a “continuing violation” for the duration of employment.

18. State Dept. Plans Pilot to Allow Visa Renewals in United States for H and L Workers – The Department of State plans to launch a pilot program later this year to allow visa renewals in the United States for H and L nonimmigrant workers.

19. 41K+ Individuals Denied Visas Under Trump-Era Travel Ban Can Reapply Without Paying a Fee, Court Says – A district court has ordered the U.S. government to provide relief to approximately 41,000 nonimmigrant visa applicants who were denied a waiver during the Trump administration’s travel ban under Presidential Proclamation 9645 and who have not subsequently been granted a visa.

20. Biden Administration Expects Title 42 Will End in May – The Biden administration told the Supreme Court that “[a]bsent other relevant developments, the end of the public health emergency [PHE] will (among other consequences) terminate the Title 42 orders and moot this case.” The Department of Health and Human Services is planning for the expiration of the PHE for COVID-19 “at the end of the day on May 11, 2023.”

21. SAVE Enables New Initial Verification Response – Systematic Alien Verification for Entitlements (SAVE) enabled a new initial verification response, “Unable to Create Case,” on February 20, 2023. SAVE will provide this response when a user tries to submit a duplicate case via a web browser.

22. ETA Updates Allowable Charges and Reimbursements for H-2A and H-2B Workers – The Department of Labor’s Employment and Training Administration has announced the annual updated dollar amount per day that H-2A employers may charge certain workers for providing meals, and the maximum and minimum rate per day at which H-2A and H-2B workers must be reimbursed for travel-related subsistence expenses.

23. USCIS Issues Documentation Reminder for Permanent Residence/Adjustment Applications – U.S. Citizenship and Immigration Services issued a reminder to applicants to file all required initial evidence and supporting documentation listed under the Checklist of Required Initial Evidence heading when they file Form I-485, Application to Register Permanent Residence or Adjust Status.

24. ABIL Global: Australia – Australia grants thousands of refugees permanent visas after a decade of uncertainty.

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 – March 2023

1. USCIS Reaches H-2B Cap for Second Half of FY 2023, Announces Filing Dates for Supplemental Visas

U.S. Citizenship and Immigration Services (USCIS) announced on March 2, 2023, that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2023. USCIS also announced the filing dates for supplemental H-2B visas for the remainder of FY 2023 made available under the FY 2023 H-2B supplemental visa temporary final rule.

H-2B Cap for Second Half of FY 2023

February 27, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2023, and before October 1, 2023. USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including petitions for:

  • Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • 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 (until December 31, 2029).

Filing Dates for Supplemental Visas

The Departments of Homeland Security (DHS) and Labor (DOL) jointly published a temporary final rule on December 15, 2022, increasing the numerical limit (cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of FY 2023. These supplemental visas are available only to “U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition,” USCIS said, as attested by the employer on DOL Form ETA 9142-B-CAA-7. These supplemental H-2B visas are for U.S. employers seeking to petition for additional workers at certain periods of the fiscal year before September 15, 2023.

The USCIS alert details the filing start dates for each of the remaining supplemental visa allocations under the temporary final rule.

USCIS previously announced that it had received enough petitions to reach the cap for the additional 18,216 H-2B visas made available for returning workers for the first half of FY 2023 with employment start dates on or before March 31, 2023.

Details:

“Temporary Increase in H-2B Nonimmigrant Visas for FY 2023,” USCIS webpage (updated Mar. 2, 2023). https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2023

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2. USCIS to Start Collecting Hefty Fees for ‘EB-5 Integrity Fund’

The Department of Homeland Security (DHS) published a Federal Register notice on March 2, 2023, announcing annual fees to be collected for the “EB-5 Integrity Fund.” U.S. Citizenship and Immigration Services (USCIS) said it will use the fund primarily to administer the EB-5 Regional Center Program. As required under the EB-5 Reform and Integrity Act of 2022, the fee is $20,000 for regional centers with more than 20 investors and $10,000 for those with 20 or fewer investors.

The fee payment for fiscal year (FY) 2023 is due by April 1, 2023, and regional centers must pay the fee online directly at Pay.gov, a system managed by the U.S. Department of the Treasury. Starting in FY 2024 (October 2023), the fee will be due at the start of each fiscal year between October 1 and October 31.

In addition, DHS said, the filing fee for Form I-526E, Immigrant Petition by Regional Center Investor, increased by $1,000 on October 1, 2022, to incorporate the Integrity Fund fees.

USCIS said it will not impose late fees for payments that were due in FY 2023. The agency will start imposing a late fee in October 2023 for any payments made more than 30 days later than the due date. USCIS said it will announce the amount of the late penalty and the process for collecting it “in a future publication before we collect it or it is due.”

Per the new EB-5 law, USCIS must terminate the designation of any regional center that does not pay the fee within 90 days of the due date. Termination will not be automatic, and USCIS will provide a notice of intent to terminate and the opportunity to prove that the fee was paid in the proper amount within 90 days of the due date before sending a notice of termination.

Details:

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3. DOS Issues Final Rule Updating Regulation on Signed Photos for Visa Processing

Effective April 5, 2023, the Department of State (DOS) is updating its regulation regarding visa applicants’ furnishing of signed photographs as required under Immigration and Nationality Act § 221(b). DOS said the updates reflect changes in technology, including the ability to upload digital photographs electronically as part of the online visa application process.

The final rule clarifies that immigrant and nonimmigrant visa applicants may upload digital photographs electronically as part of the online visa application process instead of submitting ink-signed photographs. The electronic signature on the DS-160, Online Nonimmigrant Visa Application, or the biometric signature for the DS-260, Online Application for Immigrant Visa and Alien Registration, will be “considered as signing the digital photograph and any paper photographs that may be otherwise submitted.” Additionally, the rule amends language concerning the nonimmigrant photograph to clarify that the submitted photograph must meet the specifications prescribed by DOS and deletes language allowing immigrant visa applicants to submit black-and-white photographs.

Details:

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4. USCIS Updates Guidance on On-Site Inspections for Religious Worker Petitions

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in its Policy Manual regarding on-site inspections for special immigrant and nonimmigrant religious worker petitions. To assess the efficacy of on-site inspections for petitioning religious organizations, USCIS conducted a large-scale review of the results of these inspections over the past 12 years. The agency said that although pre-adjudicative religious worker site visits uncovered a significant decline in levels of noncompliance, USCIS has determined that “conducting random on-site inspections to monitor compliance, coupled with the ability of an officer to refer religious worker petitions for a compliance review at any time during the application lifecycle, will add value and program efficiencies to the overall process and help ensure program integrity.”

The guidance:

  • Clarifies that, as a matter of policy, USCIS no longer conducts mandatory pre-approval compliance review on-site inspections of all petitioners for religious workers.
  • Explains that USCIS randomly selects religious worker petitions for compliance review on-site inspections, which normally occur after the approval of the petition, and which include inspections of the work locations to verify the religious worker’s work hours, compensation, and duties.
  • Provides that USCIS may also conduct “for cause” inspections at any time in cases where there is suspected noncompliance with the terms of the religious worker petition or for fraud.
  • Clarifies that, if applicable, USCIS may issue a request for evidence or notice of intent to deny based on the findings of a pre-adjudication inspection, or a notice of intent to revoke based on the findings of a post-adjudication inspection. The petitioner will have an opportunity to respond.

Details:

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5. DOL Final Rule Revises AEWR Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) issued a final rule effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations (i.e., all occupations other than herding and production of livestock on the range). DOL said it believes the new methodology “strikes a reasonable balance between the statute’s competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions” of similarly situated U.S. workers.

For the vast majority of H-2A job opportunities represented by the six Standard Occupational Classification (SOC) codes comprising the field and livestock worker (combined) wages reported by the U.S. Department of Agriculture, DOL will continue to rely on the Farm Labor Survey (FLS) to establish the AEWRs where a wage is reported by the FLS. For all other SOC codes, DOL will use the Occupational Employment and Wage Statistics (OEWS) survey to establish the AEWRs for each SOC code. Additionally, in circumstances in which the FLS does not report a wage for the field and livestock workers (combined) occupational group in a particular state or region, DOL will use the OEWS survey to determine the AEWR for that occupational group.

Details:

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6. USCIS Issues Guidance on Eligibility for O-1B Visa Classification

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance on March 3, 2023, effective immediately, clarifying how it evaluates evidence to determine eligibility for O-1B nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television industry.

The policy updates include a new chart in the USCIS Policy Manual’s appendix describing examples of evidence that may satisfy the O-1B evidentiary criteria, as well as considerations relevant to evaluating such evidence. The chart is also intended to assist petitioners in submitting appropriate evidence that may establish a beneficiary’s eligibility.

USCIS said the guidance also improves readability “to help adjudicators with predictable and transparent application of the O-1B evidentiary requirements, in support of consistent decisions and improvements in efficiency.”

The guidance in the Policy Manual “is controlling and supersedes any related prior guidance on the topic,” USCIS said.

Details:

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7. Biden Administration Proposes Controversial Rule on ‘Temporary’ Measures to Limit Asylum at Southwest Border

The Biden administration issued a new proposed rule that it called “temporary,” which introduces a “rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” The administration said the rule would deter migrants from relying on human smuggling networks, protect against extreme overcrowding in border facilities, and help to ensure that the processing of migrants seeking protection in the United States “is done in an effective, humane, and efficient manner.”

The administration said the proposed rule was being issued in advance of the expected termination of the Centers for Disease Control and Prevention’s (CDC) Title 42 public health order related to the COVID-19 pandemic and a consequent potential surge of migration into the United States via the southwest border. The CDC is expected to terminate its public health order on May 11, 2023, and the administration anticipates returning at that time to processing all noncitizens under Title 8 immigration authorities once Title 42 is terminated.

The proposed rule’s executive summary notes that U.S. officials’ encounters with noncitizens attempting to cross the southwest border into the United States without authorization “have reached an all-time high” even with the Title 42 public health order in place, “driven in large part by an unprecedented exodus of migrants from countries such as Colombia, Cuba, Ecuador, Nicaragua, Peru, and Venezuela.” The summary provides as an example that during a 30-day period ending December 24, 2022, the total daily encounters along the southwest border “consistently fluctuated between approximately 7,100 and 9,700 per day, averaging approximately 8,500 per day, with encounters exceeding 9,000 per day on 12 different occasions during this 30-day stretch.”

A Biden administration official reportedly said the new regulation constituted “temporary measures” and was done “out of necessity.” An administration statement from the Departments of Homeland Security and Justice lamented “the absence of congressional action to update a very broken, outdated immigration system.”

Reaction. Advocates objected to the new regulation. The American Immigration Lawyers Association (AILA) said the “transit ban” is “unworkable and a violation of U.S. asylum law. In a letter to President Biden last month, AILA President Jeremy McKinney and Executive Director Benjamin Johnson urged him to reconsider. They pointed to President Biden’s promise made during his presidential campaign to safeguard America’s commitment to asylum protection. Among other things, Mr. McKinney noted that “the countries through which people are fleeing are not ‘safe third countries’ by any stretch of the imagination, according to the U.S. State Department’s own reporting.” Mr. Johnson said, “This regulation is a clear violation of the rights of migrants under U.S. law to seek protection from persecution, regardless of how they enter the United States. The Biden Administration claims asylum will still be available under this regulation, but the so-called ‘rebuttable presumptions’ they propose will not provide sufficient opportunity for people in dire need to apply. It is absurd to expect asylum applicants who rarely have legal assistance to be able to rebut the presumptive bar set by this new rule and qualify for asylum protection.”

Comments on the proposed rule must be submitted by March 27, 2023.

Details:

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8. USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions

U.S. Citizenship and Immigration Services (USCIS) has released policy guidance to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are authorized to work under the SSR provisions. The guidance applies to all pending and future applications for SSR employment authorization as of February 22, 2023, the date the guidance was published.

The update clarifies that in cases of severe economic hardship due to emergent circumstances, USCIS may grant off-campus SSR employment authorization to an F-1 nonimmigrant student for the duration of the Federal Register notice validity period, which is typically 18 months. The employment authorization may not extend past the student’s academic program end date.

USCIS said that emergent circumstances are “events that affect F-1 nonimmigrant students from a particular region and create severe economic hardship. These events may include, but are not limited to, natural disasters, financial crises, and military conflicts.”

Details:

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9. F and M Student Visas Can Be Issued Up To a Year in Advance, State Dept. Says

The Department of State (DOS) announced that F and M student visas for new students now can be issued up to 365 days before the start date for a course of study. However, the student cannot enter the United States on a student visa more than 30 days before the start date.

F and M student visas for continuing students may be issued at any time, DOS said, as long as the student is currently enrolled at a Student and Exchange Visitor Program-approved school or institution and in the Student and Exchange Visitor Information System. Continuing students may enter the United States at any time before classes start.

Details:

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10. DHS Extends Comment Period for Fee Rule; USCIS Releases Fact Sheet on Fee Waivers for Naturalization Applications

The Department of Homeland Security (DHS) has extended by five days, to March 13, 2023, the comment period for a rule published on January 4, 2023, proposing to change the fee schedule for certain immigration benefits. DHS said the extension was due to technical problems on the General Services Administration’s eRulemaking Portal that prevented some commenters from submitting their comments and supporting documentation.

Separately, U.S. Citizenship and Immigration Services (USCIS) released a fact sheet on requests for fee waivers for Form N-400, Application for Naturalization. The fact sheet includes a checklist of grounds that may be used as a basis for the fee waiver, and information about qualifying for a reduced fee if the applicant does not qualify for a waiver.

Details:

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11. USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on a Blanket L Petition

U.S. Citizenship and Immigration Services (USCIS) seeks comments on a proposed revision of the nonimmigrant petition based on a blanket L intracompany transferee petition.

USCIS explained that employers seeking to classify employees outside the United States as executives, managers, or specialized knowledge professionals, as nonimmigrant intra-company transferees pursuant to a previously approved blanket petition, may file this form. USCIS uses the information provided through the form to assess whether the employee meets the requirements for L-1 classification under blanket L petition approval.

Comments are due by April 24, 2023.

Details:

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12. March Visa Bulletin Includes Updates on Visa Availability in Coming Months

The Department of State’s Visa Bulletin for March 2023 includes updates on visa availability in various categories, including possible retrogressions in the coming months:

  • Visa availability in the EB-2 preference category for all countries (including China and India): Higher than expected number use, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates, will necessitate corrective action in the coming months to hold number use within the maximum allowed under the fiscal year 2023 annual limit.
  • Visa availability in the EB-3 preference category: Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months.
  • Further retrogression in the EB-4 preference category: Number use and demand in this category have continued to increase, which necessitates further retrogression of final action dates and application filing dates.
  • Retrogression of the EB-5 preference category final action date for India: For March, the final action date for the EB-5 Unreserved category for India is set at 01JUN18.

The bulletin also notes that the National Visa Center has provided totals of applicants registered in the various numerically limited categories for processing at overseas posts.

Details:

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13. E-Verify Recommends Timeframes to Resolve Certain Social Security Mismatches; Deadline is September 29, 2023

E-Verify notified employers on February 15, 2023, that it recommends that employees with E-Verify Social Security Administration (SSA) Tentative Nonconfirmation mismatch cases falling within certain timeframes to visit their local SSA offices within preferred date ranges:

E-Verify said these timeframes are “recommended,” and that all affected employees must visit SSA to resolve their mismatch by September 29, 2023, or their cases will receive a Final Nonconfirmation.

Details:

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14. Ninth Circuit Agrees to Rehear Temporary Protected Status Case

The U.S. Court of Appeals for the Ninth Circuit has agreed to rehear a case, Ramos v. Mayorkas, filed by temporary protected status (TPS) recipients and their children, thus granting at least a temporary reprieve to an estimated 300,000 affected TPS recipients.

A statement by the American Civil Liberties Union of Southern California (ACLU SoCal) explained that beneficiaries of TPS and their U.S. citizen children brought the suit in 2018 after former President Trump revoked TPS for individuals from El Salvador, Haiti, Nicaragua, and Sudan, and later for Nepal and Honduras. Although the Biden administration has since redesignated TPS for Haiti and Sudan, the administration has not extended the same protections for the other four countries, ACLU SoCal noted.

Details:

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15. Fourth Circuit Affirms Denial of Employer’s Petition for Multinational Executive/Manager

Elizur International Inc., a company that produces ornamental glass products, filed an employment-based green card petition in 2018 seeking to permanently employ Chuncheng Ren, a Chinese citizen, in the United States as a multinational executive or manager. U.S. Citizenship and Immigration Services (USCIS) denied Elizur’s petition. Rather than file an administrative appeal, Elizur and Mr. Ren sued in federal court and lost. On February 14, 2023, the U.S. Court of Appeals for the Fourth Circuit affirmed the denial.

The court noted that to establish whether an employee works or has worked in a managerial or executive role, the petitioner (sponsoring employer) must submit a detailed list of the job-related tasks the individual performs or has performed; general or vague descriptions are insufficient. But a thorough job description is not enough, the court said. The description must also reveal that the beneficiary’s duties have been or will be primarily managerial or executive in nature. Mere assertions, as in the case here, that the beneficiary “provided managerial and executive leadership to the marketing/product development functions” and “implemented new business acquisition initiatives,” for example, are insufficient. The court noted that the company’s submission was “filled with fluffy descriptions devoid of any real substance. Indeed, it largely reads more like a collection of one-liners useful for resume drafting than a meaningful description of the duties that Ren actually performed.”

The court also found that the agency’s request for supplemental evidence about the employee’s “specific daily duties” and the “percentage of time spent on each duty” was appropriate. “A petitioner’s failure to furnish evidence of specific day-to-day duties forms a common component of both agency denials of Form I-140 petitions and courts’ review of those denials,” the court noted.

This case provides a reminder to employers that the benefits of an I-140 permanent residence petition for a multinational executive or manager are distinct from the benefits of an L-1A temporary nonimmigrant visa for a multinational executive or manager. This includes the fact that for the benefits of I-140 permanent residence, an employer must establish that the beneficiary also held a manager or executive-level position abroad, whereas this is not a criterion for the L-1A status/visa.

Details:

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16. United States, Mexico Sign MOU on Temporary Foreign Workers

The United States and Mexico have signed a memorandum of understanding (MOU) “to strengthen protections for workers participating in temporary foreign worker programs,” the Department of Labor reported.

The MOU includes a variety of measures, including promoting fair recruitment and compliance with laws, rules, and regulations; prohibiting discrimination; fostering and enhancing accountability, labor rights, and transparency, including through improving workers’ awareness about H-2 programs’ structures and application processes and their rights; jointly planning and executing pre-training and post-arrival training on labor and employment antidiscrimination laws and regulations for officials and consular officers; and exploring forms of collaboration for Mexico’s new platform on labor mobility.

The MOU calls for quarterly meetings of the relevant government agencies “to monitor the enforcement of employment laws, rules, and regulations that apply to temporary foreign workers, including through oversight and enforcement of labor laws, to hold employers and their agents accountable for violations and through efforts to connect workers who experienced harm or exploitation to assistance and care in the United States and in Mexico.”

Details:

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17. Chief Administrative Hearing Officer Requests Amicus Briefs on Immigration-Related Document Fraud

The Department of Justice’s Chief Administrative Hearing Officer (CAHO) for immigration-related cases has invited interested members of the public to file amicus curiae briefs on this question:

Does a violation of 8 U.S.C. § 1324c(a)(2) for the knowing use of a forged, counterfeit, altered, or falsely made document in order to obtain employment and complete the employment eligibility verification Form I-9 constitute a “continuing violation” for the duration of employment at the employer to whom the document was presented? Or, does the knowing use occur only at the time the document is presented to obtain employment and complete the employment eligibility verification Form I-9? [Amicus Invitation No. 23-15-02]

Details:

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18. State Dept. Plans Pilot to Allow Visa Renewals in United States for H and L Workers

According to reports, the Department of State (DOS) plans to launch a pilot program later this year to allow visa renewals in the United States for H and L nonimmigrant workers who currently must leave the country to renew their visas at consular offices abroad. The program could expand eventually. Practitioners say such a policy, which was in place until 2004, would help to relieve backlogs and lengthy wait times abroad, and reduce the burden on consular offices and visa holders. The program is expected to benefit tens of thousands of foreign tech professionals in the United States on H-1B visas, among others.

The timeframe for the pilot program remains unclear. It appears that new regulations would not be required, but a new consular division in Washington, DC, would be needed. “That’s not a small endeavor,” said Julie Stufft, Deputy Assistant Secretary for Visa Services in the Bureau of Consular Affairs.

Details:

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19. 41K+ Individuals Denied Visas Under Trump-Era Travel Ban Can Reapply Without Paying a Fee, Court Says

A district court has ordered the U.S. government to provide relief to approximately 41,000 nonimmigrant visa applicants who were denied a waiver during the Trump administration’s travel ban under Presidential Proclamation 9645 and who have not subsequently been granted a visa.

The court said that the government will notify these 41,000+ individuals directly through the Consular Electronic Application Center and indirectly through the Department of State’s website, and will advise them that they may reapply for a nonimmigrant visa without paying a second fee.

The government may set a reasonable time limit for them to reapply, the court said. No refunds will be provided to any individuals who may have already reapplied and paid a second fee.

The government will file by February 17, 2023: (1) a proposed schedule for providing notice; (2) proposed language for the notice; and (3) whether updated materials will be required, and if so, the relevant statutory or regulatory citation for any such materials.

The cases, filed in the U.S. District Court for the Northern District of California, include Emami v. Nielsen (case no. 3:18-cv-01587) and Pars Equality Center v. Pompeo (case no. 3:18-cv-07818).

Details:

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20. Biden Administration Expects Title 42 Will End in May

In a recent filing with the Supreme Court in Arizona v. Mayorkas, the Biden administration told the Court that “[a]bsent other relevant developments, the end of the public health emergency [PHE] will (among other consequences) terminate the Title 42 orders and moot this case.” The Department of Health and Human Services (HHS) is planning for the expiration of the PHE for COVID-19 “at the end of the day on May 11, 2023.”

A “Statement of Administration Policy” from the Executive Office of the President said that “the end of the public health emergency will end the Title 42 policy at the border. While the Administration has attempted to terminate the Title 42 policy and continues to support an orderly lifting of those restrictions, Title 42 remains in place because of orders issued by the Supreme Court and a district court in Louisiana.” The statement argued against ending the PHE earlier and against proposed legislation, such as H.R. 382, aimed at lifting Title 42 immediately. “The number of migrants crossing the border has been cut in half, approximately, since the Administration put in place a plan in early January to deter irregular migration from Venezuela, Cuba, Nicaragua, and Haiti. The Administration supports an orderly, predictable wind-down of Title 42, with sufficient time to put alternative policies in place. But if H.R. 382 becomes law and the Title 42 restrictions end precipitously, Congress will effectively be requiring the Administration to allow thousands of migrants per day into the country immediately without the necessary policies in place,” the statement noted.

Details:

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21. SAVE Enables New Initial Verification Response

Systematic Alien Verification for Entitlements (SAVE) enabled a new initial verification response, “Unable to Create Case,” on February 20, 2023. SAVE will provide this response when a user tries to submit a duplicate case via a web browser.

Instead of creating a duplicate case, the Unable to Create Case response will provide the number for the original case. The user can then use the Case Search function to locate and track the original case. As noted above, SAVE said this implementation applies to the web browser access method. For Web Services (system-to-system connection) agencies, SAVE is continuing to implement a Duplicate Case error code.

SAVE said a case is considered duplicate only if the original case is still open and the following data elements are identical to those in the original case:

  • User submitting the case
  • Applicant’s name, date of birth, and immigration enumerator
  • Benefit(s) for which the case is submitted
  • Any additional information requests (for example, grant date)

Details:

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22. ETA Updates Allowable Charges and Reimbursements for H-2A and H-2B Workers

The Department of Labor’s Employment and Training Administration has announced the annual updated dollar amount per day ($15.46) that H-2A employers may charge workers (other than workers in herding or production of livestock on the range occupations) for providing meals, and the maximum ($59, with documentation of actual expenses) and minimum ($15.46) rate per day at which H-2A and H-2B workers must be reimbursed for travel-related subsistence expenses.

The notice includes a reminder of the continuing obligation of H-2A and H-2B employers to pay certain lodging and travel-related expenses that workers incur while traveling to and from H-2A and H-2B employment.

Details:

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23. USCIS Issues Documentation Reminder for Permanent Residence/Adjustment Applications

U.S. Citizenship and Immigration Services (USCIS) issued a reminder to applicants on February 10, 2023, to file all required initial evidence and supporting documentation listed under the Checklist of Required Initial Evidence heading when they file Form I-485, Application to Register Permanent Residence or Adjust Status. “Submitting all required initial evidence and supporting documentation at the same time [as] you file Form I-485 may eliminate the need for us to issue a Request for Evidence (RFE) to obtain additional evidence and documentation. This may also help avoid adjudication delays if we decide that you do not need to be interviewed,” USCIS said.

In particular, USCIS emphasized submitting Form I-693, Report of Medical Examination and Vaccination Record, when filing the Form I-485. “We generally consider a completed Form I-693 to remain valid for two years after the date the civil surgeon signed Form I-693. Additionally, from Dec. 9, 2021 until March 31, 2023, we are temporarily waiving the requirement that the civil surgeon’s signature be dated no more than 60 days before you file your Form I-485,” the agency said.

USCIS published a new edition of Form I-485 (edition date 12/23/22) on December 23, 2022. Earlier versions will be rejected.

Details:

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24. ABIL Global: Australia

Australia grants thousands of refugees permanent visas after a decade of uncertainty.

On February 12, 2023, the Australian government announced that refugees who arrived in Australia before 2013 can now transition to a permanent Resolution of Status (RoS) visa. Approximately 19,000 refugees who have essentially lived in indefinite limbo over the past decade will now be able to build their lives in Australia with certainty.

The RoS visa allows for immediate Social Security payments, and access to the national disability insurance scheme and higher education loans. Once the residence requirements have been met, these refugees also can apply for Australian citizenship. Being granted a permanent visa also means that applications can be submitted for separated family members to come to Australia.

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New Publications and Items of Interest

USCIS engagement on Haiti TPS. U.S. Citizenship and Immigration Services will hold an engagement on the extension and redesignation of temporary protected status for Haiti, on Tuesday, March 21, 2023, from 2 to 3 p.m. USCIS will provide an overview and a question-and-answer session. https://www.uscis.gov/outreach/upcoming-national-engagements/temporary-protected-status-extension-and-redesignation-for-haiti

Webinar on redesign of permanent resident cards and EADs. E-Verify held a webinar, “Permanent Resident Card and Employment Authorization Document Redesign,” on February 27, 2023. https://www.uscis.gov/outreach/upcoming-national-engagements/permanent-resident-card-and-employment-authorization-document-redesign

Conference on immigration policy. The Cornell Law School Immigration Law and Policy Research Program and the Cornell Migrations Initiative presented “Immigration Reform: Lessons Learned and a Path Forward,” a conference held February 24, 2023, at the National Press Club in Washington, DC. The conference explored targeted legislation and other policy changes that could be enacted in 2023, focusing on work visa changes to help alleviate U.S. labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers and farmworkers. https://cornell.zoom.us/webinar/register/WN_OTXGUSoWSBmn8xpoTmGHmA.

EB-5 stakeholder engagement. U.S. Citizenship and Immigration Services will hold a stakeholder engagement on the EB-5 immigrant investor program on Monday, March 20, 2023, from 1:30 to 3 p.m. ET. The three topics are Direct and Third-Party Promoters, Investment Period, and Regional Center Operations. https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-immigrant-investor-program-eb-5-stakeholder-engagement.

H-1B electronic registration webinar. U.S. Citizenship and Immigration Services held a webinar on the H-1B registration process on February 23, 2023. USCIS representatives provided updates on the online account features for the fiscal year 2024 H-1B electronic registration process and addressed questions. https://www.uscis.gov/outreach/upcoming-national-engagements/h-1b-electronic-registration-process-0

TPS for Ethiopia engagement. U.S. Citizenship and Immigration Services held an engagement on temporary protected status (TPS) for Ethiopia on February 21, 2023. USCIS provided an overview of the designation of Ethiopia for TPS and addressed questions. https://www.uscis.gov/outreach/upcoming-national-engagements/temporary-protected-status-for-ethiopia

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:

ABIL Member / Firm News

Several Gomberg Dalfen, S.E.N.C. lawyers were named in the 2023 edition of the Canadian Legal Lexpert Directory, including Seth Dalfen, Avi Gomberg (bio: https://www.abil.com/abil-lawyers/avi-gomberg/), Genevieve Hénault, and Lisa Middlemiss. They are ranked lawyers based on the Lexpert® peer Survey. This year, the overall national response rate from law firm practitioners to the survey was 76 percent.

IMMpact Immigration Litigation (Joseph & Hall, PC, Kuck Baxter, Siskind Susser PC, and Bless Litigation LLC) announced a call for plaintiffs in prevailing wage determination litigation. IMMpact will represent individuals who filed Forms ETA 9141, Application for a Prevailing Wage Determination (PWD), before October 1, 2022. IMMPact plans to sue the Office of Foreign Labor Certifications (OFLC) and the Department of Labor because “the OFLC is failing to work on these applications in a timely manner.” IMMpact notes that OFLC is currently processing Forms ETA-9141 that were filed in January 2022. “The failure to adjudicate these applications in a timely manner adversely impacts employers’ ability to hire needed employees, threatens those in H-1B classification with losing their status, and adversely affects the ability of institutions of higher education to meaningfully take advantage of the special handling procedures implemented to ensure the most qualified professors are hired,” IMMpact said. https://www.immpactlitigation.com/prevailing-wage-determination-litigation-plaintiff-onboarding/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) authored a new blog post: “The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced to Allow Many More Backlogged Immigrants to File Adjustment of Status Applications.”

Mr. Mehta and Kaitlyn Box co-authored a new blog posting: “Khedkar v. USCIS Affirms That Employee Also Has an Interest in an I-140 Petition Filed by Employer.” http://blog.cyrusmehta.com/2023/02/khedkar-v-uscis-affirms-that-employee-also-has-interest-in-an-i-140-petiiton-filed-by-employer.html

Mr. Mehta and Jessica Paszko co-authored a new blog post: “National Interest Waiver for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization.” http://blog.cyrusmehta.com/2023/02/national-interest-waiver-changes-for-stem-graduates-and-entrepreneurs-along-with-premium-processing-will-benefit-h-4-spouses-seeking-work-authorization.html

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) discussed immigration history, law, politics, and related issues in “Episode 34: Immigration Law: Outspoken Changemaker in a Convoluted Maze,” part of the “Fill to Capacity” podcast series. https://www.nationofimmigrators.com/2023/01/outspoken-changemaker-in-a-convoluted-maze/

Greg Siskind, of Siskind Susser, PC, spoke on an American Bar Association (ABA) Techshow panel recently and was quoted by the ABA Journal on artificial intelligence (AI) tools and platforms for lawyers: “There are lower tech, low-code or no-code platforms available to build automation tools. When we’re talking about AI for lawyers, we’re basically talking about automating tasks in your practice.” He said his firm uses Afterpattern, which allows firms, legal aid organizations and courts to create document and workflow automations. The article notes that Mr. Siskind has used the platform to build an app that screens Ukrainians for Temporary Protected Status eligibility. He has also used it as a drafting tool, which the article says enables him to onboard hundreds of plaintiffs in mass immigration litigation in a short amount of time. “The whole thing happens in a matter of minutes. Before, we put tons and tons of labor into getting that information and drafting the declarations. Now, we can start onboarding for a case and file it two weeks later,” he said. Mr. Siskind added that he has used Afterpattern for Form I-9 digitization and auditing and for generating retainers. In the past few months, he also began to use Casetext’s CoCounsel to conduct research for his mass immigration litigation, the article notes. “Everything that I hate about ChatGPT is like, ‘It’s nice it said that, but what is that based on?’ ” Siskind said. “But this tool basically produced a 20-page memo that had all the cases that discussed a particular issue, links to those cases and summaries under each citation telling us what that particular case was about. It was wonderful for the amount of time it saved.” https://www.abajournal.com/web/article/how-can-lawyers-use-ai-to-improve-their-practice

Mr. Siskind appeared on an MSNBC “Morning Joe” segment with the co-founders of Casetext. https://www.msnbc.com/morning-joe/watch/first-ever-a-i-legal-assistant-makes-its-debut-164266565592

WR Immigration has released a video, “Chatting with Charlie: Understanding the March 2023 Visa Bulletin.” In this month’s episode of Chatting with Charlie, WR Immigration Director of Visa Consulting Charlie Oppenheim, Partner Charina Garcia, and Senior Associate Laura Bloniarz update human resources and global mobility professionals on the latest information from the Department of State’s March 2023 Visa Bulletin. https://www.youtube.com/watch?v=Kgw7Y2cJl24

WR Immigration published “Celebrating Black History Month: WR Recognizes Two Important Figures.” WR showcased two prominent figures in the black immigrant community in the United States “who have made an amazing impact through their civil advocations and humanitarian efforts: Miriam Makeba and Dikembe Mutombo.” https://wolfsdorf.com/celebrating-black-history-month-wr-recognizes-two-important-figures/

For more information or to register for the next Chatting with Charlie webinar, go to https://us02web.zoom.us/webinar/register/9216770213654/WN_3oTIINmkQ8yNSs7UY9mleg

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the New York Times in “In Rare Victory, Immigrants Prevail in Suit Over Meat Plant Raid.” The article reports on a case involving nearly 100 immigrants who were rounded up during a 2018 raid at a meat processing plant in Tennessee and have reached a $1.17 million settlement against the U.S. government and federal agents, who they said used racial profiling and excessive force during the operation. The article notes that the settlement agreement, approved February 27, 2023, in the U.S. District Court for the Eastern District of Tennessee, is likely the first class settlement over an immigration enforcement operation at a work site, according to immigration experts. In the past, only individual immigrants have reached settlements related to immigration raids, the article says, adding that legal experts have called it a rare victory for undocumented immigrants. Mr. Yale-Loehr said, “It is very hard to win a settlement from the U.S. government and agents in immigration enforcement cases. The outcome is particularly important because federal agents were held accountable for overreaching and racial profiling.” https://www.nytimes.com/2023/02/27/us/meat-plant-raid-immigrants-tennessee.html (subscription required)

Mr. Yale-Loehr was quoted by Cornell Law School News in “Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary.” Mr. Yale-Loehr said, “Because of the complexity of immigration law, it is very hard to win asylum for someone. We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.” He also said, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.” Over 20 years, the article notes, about 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated 66 percent of its cases, the article says. https://www.lawschool.cornell.edu/news/clinic_20th_anniversary/

Mr. Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by Univision in ” ‘Cruel,’ ‘Illegal,’ ‘Immoral,’ ‘Disappointment’ … Rain of Criticism Regarding Biden’s New Asylum Immigration Policy at the Border.” Mr. Yale-Loehr said, “The Biden administration is between a rock and a hard place. Congress has failed to reform our broken immigration system, and more and more people are trying to enter the United States for a variety of reasons, including persecution, gang violence, and climate change. The Biden administration hopes its proposed rule will survive a court challenge. I doubt it.”

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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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