ABIL Immigration Insider • April 3, 2023

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In this issue:

1. H-1B Electronic Registration Selection Process Completed – U.S. Citizenship and Immigration Services has received enough electronic registrations during the initial registration period to reach the fiscal year 2024 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap).

2. USCIS Removes 60-Day Rule for Civil Surgeon Signatures on Form I-693 – U.S. Citizenship and Immigration Services is removing the requirement that civil surgeons sign Form I-693, Report of Immigration Medical Examination and Vaccination Record, no more than 60 days before an individual applies for an underlying immigration benefit.

3. DOS to Raise Most Consular Service Fees – Effective May 30, 2023, a Department of State final rule raises most consular service fees, although the fee increases are smaller than those proposed in the notice of proposed rulemaking due to revised projections.

4. DOS Eliminates Separate Column for El Salvador, Guatemala, Honduras in Visa Bulletin Employment-Based Charts – As announced in its April Visa Bulletin, the Department of State is no longer including a separate column covering applicants chargeable to El Salvador, Guatemala, or Honduras in certain employment-based charts.

5. DOS to Allow J-1 Sponsors to Digitally Sign Form DS-2019 and Submit It Electronically – Effective April 27, 2023, a Department of State interim rule will give J-1 sponsors two new options: using digital signature software to sign Certificates of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) and transmitting the form electronically.

6. USCIS Updates Policy on Timeframes for Paper-Based Filings/Responses – U.S. Citizenship and Immigration Services has updated policy guidance to address situations when the last day to file a benefit request or respond to a USCIS action falls on a Saturday, Sunday, or federal holiday.

7. New Filing Address Announced for Courier Delivery Services to USCIS Phoenix Lockbox – U.S. Citizenship and Immigration Services has changed the filing location for courier delivery services to the Phoenix, Arizona, lockbox. The facility has moved to Tempe, Arizona.

8. New HART Center to Focus on Humanitarian Cases – U.S. Citizenship and Immigration Services announced the opening of the virtual Humanitarian, Adjustment, Removing Conditions, and Travel Documents (HART) Service Center, the first to focus on humanitarian and other cases, such as visas for crime and domestic violence victims.

9. April Visa Bulletin Shows Worldwide EB-4 Backlog of 5+ Years, EB-2 Retrogression – The EB-4 category, which includes special immigrant religious workers, now has a worldwide backlog of 5+ years. Also, the EB-2 final action dates for Rest of World, India, Mexico, and the Philippines have retrogressed several months to keep number use within the FY 2023 annual limit.

10. USCIS Ends Certain COVID-19 Flexibilities – Certain flexibilities first introduced in March 2020 to address the COVID-19 pandemic ended on March 23, 2023.

11. CBP Issues Reminder About New EADs – The redesigned work permit cards will be issued concurrently with existing card stock until it is depleted. All previously issued cards remain valid until their printed expiration dates.

12. CDC Terminates COVID-19 Testing Requirements for Entry by Air Passengers From China – The Centers for Disease Control and Prevention is no longer requiring a negative pre-departure COVID-19 test result or documentation of recovery from COVID-19 for air passengers traveling to the United States from the People’s Republic of China, including the Special Administrative Regions of Hong Kong and Macau.

13. Many Travelers No Longer Receive Admission Stamps in Passports – U.S. Customs and Border Protection (CBP) expanded a pilot program to eliminate entry stamps (the ink stamp, not the visa stamp) upon admission to the United States. Records of admission are now documented online at CBP’s I-94 website.

14. Mobile Passport Control Available at Canadian Preclearance Locations – U.S. Customs and Border Protection has expanded its Mobile Passport Control (MPC) program to include the Montréal, Toronto, and Vancouver Preclearance locations in Canada.

15. June 23 is Deadline for Employers to Download Old E-Verify Case Info – On June 24, 2023, U.S. Citizenship and Immigration Services will dispose of E Verify records that are more than 10 years old (those last updated on or before December 31, 2012).

16. USCIS Issues Policy Alert on Evidence for Employers’ Ability to Pay Proffered Wage – U.S. Citizenship and Immigration Services has updated its guidance to discuss in more detail various types of evidence and explain how it reviews all evidence relevant to the employer’s financial strength and the significance of its business activities.

17. LPRs May Receive Temporary Evidence of Status by Mail, USCIS Says – Certain lawful permanent residents may receive temporary evidence of their status by mail rather than physically visiting a field office to receive an Alien Documentation, Identification and Telecommunication (ADIT) stamp (also known as an I-551 stamp).

18. Biometrics Requirement Removed for Regional Center Investor Petitioners – As of March 15, 2023, U.S. Citizenship and Immigration Services has removed the biometrics submission requirement and related $85 fee for petitioners filing Form I-526E, Immigrant Petition by Regional Center Investor.

19. DHS Announces Extension for Certain Paroled Ukrainians – The Department of Homeland Security will consider, on a case-by-case basis, an estimated 25,000 Ukrainian nationals and immediate family members who were paroled into the United States at a land border before the Uniting for Ukraine program began, for a one-year extension of their parole period and employment authorization, if applicable.

20. USCIS Lockbox to Relocate From Phoenix to Tempe, Arizona – U.S. Citizenship and Immigration Services said it will forward to Tempe any applications, petitions, or requests received via courier delivery services at Phoenix between March 31 and April 28. After April 28, the agency will not accept courier delivery services at the previous address.

21. USCIS Releases New Guidance, Resources for International Entrepreneurs – U.S. Citizenship and Immigration Services has issued comprehensive guidance on parole for international entrepreneurs, and new entrepreneur resources.

22. DHS Extends and Redesignates Somalia for TPS, Announces Student Relief – The Department of Homeland Security (DHS) plans to publish a Federal Register notice extending and redesignating Somalia for temporary protected status. DHS also announced special student relief for certain F-1 nonimmigrant Somali students.

23. USCIS Announces Premium Processing, New Online Filing Procedures for Certain F-1 Students Seeking OPT or STEM OPT Extensions – U.S. Citizenship and Immigration Services announced the expansion of premium processing for certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking science, technology, engineering, and mathematics (STEM) OPT extensions who have a pending Form I-765, Application for Employment Authorization, and wish to request a premium processing upgrade.

24. DOL Releases FAQs on Final Rule Revising AEWR Methodology for H-2A Non-Range Occupations – The Department of Labor released frequently asked questions on a final rule published February 28, 2023, and effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates for non-range agricultural occupations (i.e., all occupations other than herding and production of livestock on the range).

25. DHS Extends Enforcement Date for REAL ID – A new final rule extends the date for card-based enforcement of the REAL ID regulations to May 7, 2025. Beginning on that date, federal agencies are prohibited from accepting a state-issued driver’s license or identification card for official purposes unless it is REAL ID compliant and issued by a state that DHS has determined is in full compliance.

26. USCIS Issues Guidance on Mobile and Remote Biometrics Collection – U.S. Citizenship and Immigration Services issued policy guidance to address mobile biometrics collection and the biometrics collection of benefit requestors in remote locations.

27. USCIS To Propose ‘Frontlog’ Rule To Eliminate Backlogs – As part of its modernization program, U.S. Citizenship and Immigration Services announced on April 1, 2023, that it plans to propose a “Frontlog Rule” soon to eliminate and reverse backlogs.

28. ABIL Global: Mexico – This article provides a summary of the non-lucrative Temporary Resident Visa.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – April 2023

1. H-1B Electronic Registration Selection Process Completed

U.S. Citizenship and Immigration Services (USCIS) announced on March 27, 2023, that it has received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2024 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap). USCIS said it randomly selected registrations to reach the cap and has notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the registration.

H-1B cap-subject petitions for FY 2024, including petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2023, if based on a valid, selected registration.

USCIS noted that an H-1B cap-subject petition must be properly filed at the correct USCIS service center and within the filing period indicated on the relevant registration selection notice. The period for filing the H-1B cap-subject petition is at least 90 days. Online filing is not available for H-1B petitions, so petitioners filing H-1B petitions must do so by paper, the agency noted. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2024 H-1B cap-subject petition.

Details:

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2. USCIS Removes 60-Day Rule for Civil Surgeon Signatures on Form I-693

U.S. Citizenship and Immigration Services (USCIS) announced on March 31, 2023, that it is removing the requirement that civil surgeons sign Form I-693, Report of Immigration Medical Examination and Vaccination Record, no more than 60 days before an individual applies for an underlying immigration benefit, including Form I-485, Application to Register Permanent Residence or Adjust Status. The requirement had been subject to a temporary waiver since December 9, 2021.

USCIS said that this policy update will allow it to adjudicate cases with immigration medical examinations that previously would have been considered invalid. Rather than issuing a Request for Evidence (RFE) in the case of a Form I-693 signed more than 60 days before the filing of the I-485, but otherwise valid, USCIS can now accept I-693s for adjudicative purposes for up to two years after the date the civil surgeon signed the form.

Details:

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3. DOS to Raise Most Consular Service Fees

Effective May 30, 2023, a Department of State (DOS) final rule raises most consular service fees, although the fee increases are smaller than those proposed in the notice of proposed rulemaking due to revised projections for fiscal year (FY) 2022-2024 demand, DOS said.

Below are the adjustments that DOS will implement under the final rule:

  • The application processing fee for non-petition-based nonimmigrant visas (NIVs) (except the E category) will increase from $160 to $185.
  • The application processing fee for H, L, O, P, Q, and R category NIVs will increase from $190 to $205.
  • The processing fee for Border Crossing Cards for Mexican citizens age 15 and over will increase from $160 to $185.
  • The fee for E category NIVs will increase from $205 to $315.
  • The fee for the exchange visitor waiver of two-year residency requirement will stay at $120, instead of the proposed $510.

Details:

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4. DOS Eliminates Separate Column for El Salvador, Guatemala, Honduras in Visa Bulletin Employment-Based Charts

As announced in its April Visa Bulletin, the Department of State (DOS) is no longer including a separate column covering applicants chargeable to El Salvador, Guatemala, or Honduras in the charts titled, “Final Action Dates for Employment-Based Preference Cases” and “Dates for Filing of Employment-Based Visa Applications,” for applicants who are seeking an immigrant visa in the EB-4 category. Final action and filing dates for applicants from these three countries are now provided in the column headed “All Chargeability Areas Except Those Listed.”

DOS has now published a notice in the Federal Register confirming the change and explaining its rationale.

Details:

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5. DOS to Allow J-1 Sponsors to Digitally Sign Form DS-2019 and Submit It Electronically

Effective April 27, 2023, a Department of State (DOS) interim rule will give J-1 sponsors two new options: using digital signature software to sign Certificates of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019), and transmitting the form electronically.

DOS said that the sponsor community “has long sought the ability to digitally sign and electronically transmit (e.g., via email) Forms DS-2019, i.e., the Student and Exchange Visitor Information System- (SEVIS-) generated documents that prospective exchange visitors and their spouses and dependents, if any, must present at U.S. embassies or consulates to apply for J visas.”

Comments on the interim rule are due May 30, 2023.

Details:

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6. USCIS Updates Policy on Timeframes for Paper-Based Filings/Responses

U.S. Citizenship and Immigration Services (USCIS) has updated policy guidance to address situations when the last day to file a benefit request or respond to a USCIS action falls on a Saturday, Sunday, or federal holiday. In these situations, effective immediately, USCIS will consider a filing or response submitted on paper timely if the agency receives it by the end of the next business day. While the receipt date for these cases will continue to reflect the date USCIS physically received the request, USCIS will consider the benefit request timely filed.

USCIS said it is pursuing several ways to increase flexibility related to filing deadlines, including this policy update. The update applies to all benefit requests or responses to a USCIS action that the agency receives on paper on or after March 29, 2023. The update does not affect electronic filings or responses submitted electronically, which USCIS considers received immediately upon submission. USCIS is not applying this policy retroactively.

Details:

USCIS alert (Mar. 29, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-on-time-frames-for-paper-based-filings-and-responses-ending-on-saturdays

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7. New Filing Address Announced for Courier Delivery Services to USCIS Phoenix Lockbox

U.S. Citizenship and Immigration Services (USCIS) has changed the filing location for courier delivery services to its Phoenix, Arizona, lockbox. The facility has moved to Tempe, Arizona, and the filing location for courier delivery services for UPS, FedEx, and DHL has also changed to Tempe. The filing location remains the same when using the U.S. Postal Service.

USCIS said it will forward any applications, petitions, or requests received in Phoenix via courier delivery services to Tempe between March 30 and April 28, 2023. After April 28, USCIS will not accept courier delivery at the previous address.

Details:

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8. New HART Center to Focus on Humanitarian Cases

On March 30, 2023, U.S. Citizenship and Immigration Services (USCIS) announced the opening of the virtual Humanitarian, Adjustment, Removing Conditions, and Travel Documents (HART) Service Center, the sixth service center within its Service Center Operations directorate and the first to focus on humanitarian and other cases, such as visas for crime and domestic violence victims.

“One of my biggest visions for USCIS is to ensure that this backlog—this unprecedented backlog—is something that, by the time I depart the agency, is well on its way to recovery,” USCIS Director Ur Jaddou said. “The backlog has stopped growing and it’s starting to peer downward. My goal is to continue that slide downward.” The virtual center will accept paper and electronic applications, Ms. Jaddou said.

“HART’s workforce will improve the quality and efficiency of our humanitarian caseload processing. These applications and benefits affect vulnerable populations, and this center will make a positive impact in the quality and scale of our humanitarian processing abilities,” USCIS tweeted.

Details:

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9. April Visa Bulletin Shows Worldwide EB-4 Backlog of 5+ Years, EB-2 Retrogression

According to the Department of State’s (DOS) Visa Bulletin for April 2023, the EB-4 category, which includes special immigrant religious workers, now has a worldwide backlog of 5+ years. Also, the EB-2 final action dates for Rest of World, India, Mexico, and the Philippines have retrogressed several months to keep number use within the FY 2023 annual limit.

EB-4 Backlog

Previously, DOS was applying the per-country limit to the EB-4 subcategory, which made the “North Central American” (NCA) countries of El Salvador, Guatemala, and Honduras oversubscribed, but preserved religious worker current priority dates for all other chargeability areas. DOS has now announced that it interprets the limit to apply to the family/employment-based system as a whole and not within each category, meaning that because the NCA countries are not oversubscribed in the total family/employment system, DOS cannot set a cutoff for them just in the EB-4 category.

DOS is no longer including a separate column covering applicants chargeable to El Salvador, Guatemala, or Honduras in the charts titled, “Final Action Dates for Employment-Based Preference Cases” and “Dates for Filing of Employment-Based Visa Applications,” for applicants who are seeking an immigrant visa in the EB-4 category. Final action and filing dates for applicants from these three countries are now provided in the column headed “All Chargeability Areas Except Those Listed.”

EB-2 Retrogression

The Rest of World, Mexico, and Philippines EB-2 final action dates retrogressed to 01JUL22, and the India EB-2 final action date retrogressed to 01JAN11. “This situation will be continually monitored, and any necessary adjustments will be made accordingly,” the bulletin states.

Details:

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10. USCIS Ends Certain COVID-19 Flexibilities

U.S. Citizenship and Immigration Services (USCIS) announced that certain flexibilities first introduced in March 2020 to address the COVID-19 pandemic ended on March 23, 2023. USCIS previously notified the public that barring any changes presented by the pandemic, the extension of these flexibilities announced on January 24, 2023, would be the last.

USCIS said it “retains discretion to provide certain flexibilities on a case-by-case basis upon request, for applicants or petitioners affected by an emergency or unforeseen circumstance, such as natural catastrophes (hurricanes, wildfires, severe weather, etc.), national emergencies (public health emergencies), or severe illness (including COVID).”

USCIS also noted that flexibilities regarding reproduced signatures first announced on March 20, 2020, became policy as announced on July 25, 2022.

Details:

“Immigration Relief in Emergencies or Unforeseen Circumstances,” USCIS. https://www.uscis.gov/newsroom/immigration-relief-in-emergencies-or-unforeseen-circumstances

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11. CBP Issues Reminder About New EADs

U.S. Customs and Border Protection’s (CBP) Carrier Liaison Program recently issued a reminder that U.S. Citizenship and Immigration Services (USCIS) began producing redesigned employment authorization documents (EADs) on January 30, 2023. CBP said that the redesigned work permit cards will be issued concurrently with existing card stock until it is depleted.

All previously issued cards remain valid until their printed expiration dates, CBP said.

Details:

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12. CDC Terminates COVID-19 Testing Requirements for Entry by Air Passengers From China

The Centers for Disease Control and Prevention (CDC) is no longer requiring a negative pre-departure COVID-19 test result or documentation of recovery from COVID-19 for air passengers traveling to the United States from the People’s Republic of China, including the Special Administrative Regions of Hong Kong and Macau. The previous requirement also applied to passengers who had been in China, Hong Kong, or Macau in the past 10 days and were traveling to the United States from Incheon International Airport (ICN) in Seoul, South Korea; Toronto Pearson International Airport (YYZ) in Canada; and Vancouver International Airport (YVR) in Canada.

The CDC said the PRC’s COVID-19 surge has returned to a baseline level. According to World Health Organization data, daily cases peaked at 7 million cases per day on December 23, 2022, then declined 99% by January 24, 2023, leveling off around 20,000 cases per day from January 24 through February 21, 2023. In addition, no variants of concern have been identified as emerging from the PRC now, the CDC said.

Details:

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13. Many Travelers No Longer Receive Admission Stamps in Passports

According to reports, U.S. Customs and Border Protection (CBP) expanded a pilot program to eliminate entry stamps (the ink stamp, not the visa stamp) upon admission to the United States, begun in December 2021. Records of admission are now documented online at CBP’s I-94 website.

Ports of entry participating in the pilot program to eliminate entry stamps include:

  • Atlanta (Hartsfield-Jackson Atlanta International Airport (ATL))
  • Boston-Logan International Airport (BOS)
  • Calgary International Airport (YYC)
  • Chicago O’Hare International Airport (ORD)
  • Dallas/Ft. Worth International Airport (DFW)
  • Dublin Airport (DUB)
  • Houston (George Bush Intercontinental Airport (IAH))
  • Los Angeles International Airport (LAX)
  • Montréal Pierre Elliott Trudeau International Airport (YUL)
  • New York (John F. Kennedy International Airport (JFK))
  • Newark Liberty International Airport (EWR)
  • San Francisco International Airport (SFO)
  • Seattle-Tacoma International Airport-SeaTac (SEA)
  • Toronto Pearson International Airport (YYZ)
  • Washington-Dulles International Airport (IAD)
  • Land ports of entry at Buffalo, Detroit, El Paso, Laredo, San Diego, Seattle, and Tucson

The admission stamp may be used during secondary processing, when appropriate, and in limited circumstances in primary processing, such as when processing immigrant visas or upon the specific request of a traveler, CBP said. Travelers experiencing difficulties in retrieving their I-94 form as proof of admission through the CBP website or mobile application can contact their local CBP port of entry for assistance.

Travelers must still obtain visas, unless exempt.

Details:

“CBP Expands Pilot Program Eliminating Entry Stamps on Admission to the United States,” National Law Review. https://www.natlawreview.com/article/cbp-expands-pilot-program-eliminating-entry-stamps-admission-to-united-states

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14. Mobile Passport Control Available at Canadian Preclearance Locations

U.S. Customs and Border Protection (CBP) has expanded its Mobile Passport Control (MPC) program to include the Montréal, Toronto, and Vancouver Preclearance locations in Canada. This brings MPC availability to 38 air and seaport locations, CBP said. The MPC mobile app, available to U.S. citizens and Canadian B1/B2 visitors, allows travelers to submit their passport and travel information using a mobile device and to store their information for future international travel.

Details:

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15. June 23 is Deadline for Employers to Download Old E-Verify Case Info

On June 24, 2023, U.S. Citizenship and Immigration Services (USCIS) will dispose of E‑Verify records that are more than 10 years old (those last updated on or before December 31, 2012). E‑Verify employers have until June 23, 2023, to download case information from the Historic Records Report if they want to retain information about these E-Verify cases.

Employers who have not already done so must record the E‑Verify case verification number on the corresponding Form I‑9, Employment Eligibility Verification, or attach a copy of the case details page to the Form I‑9. Employers should retain the Historic Records Report with the Forms I‑9, USCIS said.

Details:

CBP announcement (scroll to Improving Traveler Experience). https://www.cbp.gov/newsroom/national-media-release/cbp-highlights-top-2022-accomplishments

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16. USCIS Issues Policy Alert on Evidence for Employers’ Ability to Pay Proffered Wage

U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on March 15, 2023, on employers’ ability to pay the proffered wage to prospective beneficiaries of certain I-140 immigrant petitions. This is important in many employment-related green card petitions. USCIS said it is updating its guidance to discuss in more detail various types of evidence and explain how it reviews all evidence relevant to the employer’s financial strength and the significance of its business activities. Among other things, the new guidance explains that an employer must submit one of three forms of initial required evidence, but may also include other types of relevant evidence.

USCIS explained that employers must submit annual reports, federal tax returns, or audited financial statements for each available year from the case’s priority date. If the employer has 100 or more workers, it may instead include a financial officer statement attesting to the petitioner’s ability to pay the proffered wage. An employer may also submit additional evidence, the agency said, such as profit and loss statements, bank account records, or personnel records. USCIS noted that many employers satisfy the ability to pay requirement by also submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage indicated on the Immigrant Petition for Alien Workers (Form I-140).

Details:

USCIS policy alert, PA-2023-08 (Mar. 15, 2023). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230315-AbilityToPay.pdf

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17. LPRs May Receive Temporary Evidence of Status by Mail, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced on March 16, 2023, that certain lawful permanent residents (LPRs) may receive temporary evidence of their status by mail rather than physically visiting a field office to receive an Alien Documentation, Identification and Telecommunication (ADIT) stamp (also known as an I-551 stamp).

USCIS said LPRs are entitled to evidence of status and may require temporary evidence of their status in the form of an ADIT stamp if:

  • They do not have their green card; or
  • Their Form I-90, Application to Replace Permanent Resident Card (green card), Form I-751, Petition to Remove Conditions on Residence, or Form N-400, Application for Naturalization, is still pending adjudication and their green card and extension notice have expired.

This alternate Form I-94 with an ADIT stamp is an acceptable List A receipt for Form I-9 and E-Verify purposes, USCIS said. Some lawful permanent residents will still need to appear in person at a USCIS field office to receive temporary evidence of their status, including those who have urgent needs, do not have a useable photo in USCIS systems, or whose address or identity cannot be confirmed.

When an LPR calls the USCIS Contact Center (800-375-5283 or 800-767-1833 [TDD for the hearing impaired]) to request temporary evidence of status, an immigration services officer will verify their identity, physical mailing address, and whether that address can receive UPS or FedEx express mail. The officer will then either create an in-person appointment if needed or submit a request to the field office to initiate the creation of the temporary evidence. If an in-person appointment is not needed, a USCIS field office will review the request for temporary evidence and mail the applicant a Form I-94 with ADIT stamp, Department of Homeland Security (DHS) seal, and a printed photo of the LPR obtained from USCIS systems.

Details:

I-94 webpage, U.S. Customs and Border Protection. https://i94.cbp.dhs.gov/I94/#/home

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18. Biometrics Requirement Removed for Regional Center Investor Petitioners

As of March 15, 2023, U.S. Citizenship and Immigration Services (USCIS) has removed the biometrics submission requirement and related $85 fee for petitioners filing Form I-526E, Immigrant Petition by Regional Center Investor. USCIS said it may still request the submission of biometrics from a Form I-526E petitioner as necessary. The agency said it will refund biometrics fees paid by about 980 petitioners since the form’s release in 2022. Petitioners do not need to contact USCIS to request a refund.

Effective May 15, 2023, USCIS will accept only the 03/15/23 edition of Form I-526E. Until then, petitioners can submit either the new edition or the previous edition of Form I-526E (dated 06/01/22). The previous edition still contains instructions about the biometrics submission requirement that are no longer accurate.

Details:

USCIS alert (Mar. 15, 2023). https://www.uscis.gov/newsroom/alerts/uscis-removes-biometrics-requirement-for-form-i-526e-petitioners

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19. DHS Announces Extension for Certain Paroled Ukrainians

The Department of Homeland Security DHS) will consider, on a case-by-case basis, a one-year extension of parolee status for the estimated 25,000 Ukrainian nationals and immediate family members who were paroled into the United States at a land border before the Uniting for Ukraine program began.

Specifically, individuals paroled into the United States at a port of entry between February 24, 2022, and April 25, 2022, will be considered for the one-year extension. DHS said it is considering these individuals, on a case-by-case basis, for the one-year extension to align with the two-year parole period provided under Uniting for Ukraine. DHS estimates that it will take approximately four weeks to consider and vet all the individuals in the group. The agency will review cases based on the date of parole.

Details:

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20. USCIS Lockbox to Relocate From Phoenix to Tempe, Arizona

U.S. Citizenship and Immigration Services (USCIS) announced that on March 31, applicants and petitioners filing at the Phoenix, Arizona, lockbox will see a new filing location for courier delivery services such as UPS, FedEx, and DHL. USCIS will move its Phoenix lockbox to Tempe for courier delivery services. When using the U.S. Postal Service, the filing location will remain the same.

USCIS said it will forward to Tempe any applications, petitions, or requests received via courier delivery services at Phoenix between March 31 and April 28. After April 28, the agency will not accept courier delivery services at the previous address.

Details:

USCIS alert (Mar. 17, 2023). https://www.uscis.gov/newsroom/alerts/uscis-relocates-lockbox-from-phoenix-to-tempe-arizona-for-courier-delivery-services

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21. USCIS Releases New Guidance, Resources for International Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) has issued comprehensive guidance on parole for international entrepreneurs, and new entrepreneur resources.

Guidance

USCIS explained that the International Entrepreneur Rule, published in January 2017, provided a framework for the Department of Homeland Security to use its parole authority to grant a period of authorized stay, on a case-by-case basis, to noncitizen entrepreneurs who possess a substantial ownership interest in a start-up entity and who can demonstrate that their stay in the United States would provide a significant public benefit through that start-up entity’s potential for rapid business growth and job creation.

USCIS said that after fully implementing the rule in 2021, it has received a growing number of applications and “continues to adjudicate them as expeditiously as possible.” The agency has now published guidance in the Policy Manual that includes information about:

  • The criteria for consideration for the applicant, the start-up entity, and the qualified investment or government award or grant;
  • Evidence and documentation;
  • The discretionary nature of the entrepreneur parole adjudication;
  • Conditions on parole and bases for termination;
  • The criteria for consideration for an additional parole period; and
  • Options available to the entrepreneur’s family to join the entrepreneur as parolees and, if eligible, to obtain employment authorization.

USCIS noted that although an individual who is paroled into the United States has not been admitted into the United States for purposes of immigration law, parolees may enter and remain in the United States and may be authorized to work.

New Resources

USCIS announced on March 9, 2023, that it has published additional online resources to provide an overview of some of the temporary and permanent pathways for noncitizen entrepreneurs to work in the United States. Included are “some of the most important immigration-related considerations for entrepreneurs contemplating starting or managing a business in the United States,” USCIS said.

The new pages include:

Details:

“New Entrepreneur Resources Available on USCIS Website,” USCIS alert (March 9, 2023). https://www.uscis.gov/newsroom/alerts/new-entrepreneur-resources-available-on-uscis-website

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22. DHS Extends and Redesignates Somalia for TPS, Announces Student Relief

The Department of Homeland Security (DHS) plans to publish a Federal Register notice on March 13, 2023, extending and redesignating Somalia for temporary protected status (TPS). DHS also announced special student relief for certain F-1 nonimmigrant Somali students.

TPS Extension

The extension of Somalia TPS is for 18 months, from March 18, 2023, through September 17, 2024. Current beneficiaries under TPS for Somalia must re-register in a timely manner during the 60-day re-registration period from March 13, 2023, through May 9, 2023, to ensure they keep their TPS and work authorization.

All individuals who want to request TPS under Somalia’s designation must apply, DHS said. Re-registration is limited to individuals who previously registered for and were granted TPS under Somalia’s prior designation. DHS said it recognizes that not all re-registrants may receive a new employment authorization document (EAD) before their current EAD expires and is automatically extending through March 17, 2024, the validity of certain EADs previously issued under Somalia’s TPS designation. U.S. Citizenship and Immigration Services will continue to process pending applications filed under Somalia’s previous TPS designation.

TPS Redesignation

Under the redesignation of Somalia, eligible individuals who do not have TPS may submit an initial Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from March 13, 2023, through September 17, 2024. Applicants may also apply for TPS-related EADs and for travel authorization. Applicants can request an EAD by submitting a completed Form I-765, Application for Employment Authorization, with their Form I-821, or separately later, DHS said.

Special Student Relief

Effective March 18, 2023, through September 17, 2024, DHS is also suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Somalia, regardless of country of birth (or individuals having no nationality who last habitually resided in Somalia), and who are experiencing severe economic hardship as a direct result of the current crisis in Somalia. DHS said it is taking action to provide relief to these Somali students who are lawful F-1 nonimmigrant students “so the students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status.”

DHS will deem an F-1 nonimmigrant student granted employment authorization by means of the notice to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in the notice.

Details:

DHS notice of employment authorization for Somali students (advance copy), 88 Fed. Reg. 15427 (Mar. 13, 2023). https://www.govinfo.gov/content/pkg/FR-2023-03-13/pdf/2023-04737.pdf

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23. USCIS Announces Premium Processing, New Online Filing Procedures for Certain F-1 Students Seeking OPT or STEM OPT Extensions

On March 6, 2023, U.S. Citizenship and Immigration Services (USCIS) announced the expansion of premium processing for certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking science, technology, engineering, and mathematics (STEM) OPT extensions who have a pending Form I-765, Application for Employment Authorization, and wish to request a premium processing upgrade.

Online filing of Form I-907, Request for Premium Processing Service, is now also available to
F-1 students in these categories. USCIS continues to accept the latest paper version of this form by mail. Premium processing expansion for certain F-1 students will occur in phases, and students requesting premium processing should not file before these dates:

  • Beginning March 6, USCIS now accepts Form I-907 requests, filed either via paper form or online, for certain F-1 students who already have a pending Form I-765, Application for Employment Authorization, if they are filing under one of the following categories:
    • (c)(3)(A)—Pre-Completion OPT
    • (c)(3)(B)—Post-Completion OPT
    • (c)(3)(C)—24-Month Extension of OPT for STEM students
  • Beginning April 3, USCIS will accept Form I-907 requests, filed either via paper form or online, for F-1 students in the above categories when filed together with Form I-765.

Details:

USCIS news release (Mar. 6, 2023). https://www.uscis.gov/newsroom/news-releases/uscis-announces-premium-processing-new-online-filing-procedures-for-certain-f-1-students-seeking-opt

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24. DOL Releases FAQs on Final Rule Revising AEWR Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) released frequently asked questions (FAQs) on a final rule published February 28, 2023, and effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations (i.e., all occupations other than herding and production of livestock on the range).

The FAQs note, among other things, that:

  • OFLC encourages employers to monitor each of the wage sources that affect their H-2A wage obligation from the time of job order submission (or signing a work contract) until the last date an H-2A agricultural worker or worker in corresponding employment is employed under the H-2A job order “to ensure that they are in compliance with the obligation to offer, advertise, and pay workers a wage rate that is at least equal to the highest rate among the sources at all times.”
  • Any adjustment to an AEWR applicable to an employer’s job opportunity, based on the Standard Occupational Classification (SOC) code(s) assigned to the job opportunity before certification, may affect the employer’s wage obligations during the work contract period. “Whether an employer’s H-2A program certification was adjudicated using the 2010 AEWR methodology or the 2023 AEWR methodology, the employer’s wage obligation during the work contract period, including any extension granted, is subject to increase if the OFLC Administrator publishes an adjusted AEWR during the work contract period and the new AEWR is higher than the approved wage rate listed on the employer’s job order and/or work contract,” OFLC said.
  • An employer must pay H-2A workers and workers in corresponding employment at least the certified wage rate throughout the work contract period. The FAQ notes that DOL’s H-2A regulations “prohibit contract terms that would decrease the wage paid in the event an adjusted AEWR or prevailing wage rate is lower than the offered rate.”

Details:

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25. DHS Extends Enforcement Date for REAL ID

On May 3, 2021, the Department of Homeland Security (DHS) published an interim final rule extending the REAL ID card-based enforcement deadline to May 3, 2023. A new final rule published March 9, 2023, further extends the date for card-based enforcement of the REAL ID regulations to May 7, 2025. Beginning on that date, federal agencies cannot accept a state-issued driver’s license or identification card for official purposes unless it is REAL ID compliant and issued by a state that DHS has determined is in full compliance.

Current regulations also permit federal agencies to accept noncompliant driver’s licenses and identification cards for official purposes until May 2, 2023. The final rule also extends that date, authorizing federal agencies to continue to accept noncompliant driver’s licenses and identification cards for official purposes until May 6, 2025.

Details:

DHS final rule, 88 Fed. Reg. 14473 (Mar. 9, 2023). https://www.govinfo.gov/content/pkg/FR-2023-03-09/pdf/2023-04496.pdf

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26. USCIS Issues Guidance on Mobile and Remote Biometrics Collection

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance on March 7, 2023, to address mobile biometrics collection and the biometrics collection of benefit requestors in remote locations.

USCIS said the guidance is intended for benefit requestors who may be unable to attend appointments at USCIS Application Support Centers (ASC) due to health or other issues, or because their physical location requires multiple modes of transportation or substantial travel times to reach an ASC, where USCIS generally collects biometrics. The policy provides for circumstances under which USCIS may conduct mobile biometrics collection for benefit requestors who reside in remote locations in relation to ASCs, and provides an alternative method to fingerprint collection, to include fingerprint cards and coordination with other agencies, for certain benefit requestors who live in locations so remote that USCIS mobile biometric services would not be practical, the agency said.

Details:

USCIS Policy Manual, Chapter 2—Biometrics Collection. https://www.uscis.gov/policy-manual/volume-1-part-c-chapter-2

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27. USCIS To Propose ‘Frontlog’ Rule To Eliminate Backlogs

As part of its modernization program, U.S. Citizenship and Immigration Services (USCIS) announced on April 1, 2023, that it plans to propose a “Frontlog Rule” soon to eliminate and reverse backlogs, which have led to backbiting, backlashing, and backtracking. The plan is to leapfrog over backlogs without getting bogged down. The logging industry reportedly will particularly benefit.

Some said they were agog at the plan and hoped it would not become a boondoggle or pose logistical problems. Sen. Grassley expressed skepticism: “How can you toggle back and forth between backlogs and frontlogs? Sounds like something made up by goblins. It boggles the mind,” he commented, squinting skeptically through his goggles. USCIS said it would take dogged determination, along with a backbone.

Some said they didn’t even know what a frontlog was. “Google it,” a USCIS spokesperson replied. USCIS staff plan a webinar on the proposal, to be broadcast from Lake Chaubunagungamaug (formally known as Lake Chargoggagoggmanchauggagogg-chaubunagungamaugg).

Details:

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28. ABIL Global: Mexico

This article provides a summary of the non-lucrative Temporary Resident Visa.

The COVID-19 pandemic has had a significant impact on the way people work, with many companies and employees shifting to remote work to comply with social distancing guidelines and stay-at-home orders. Overall, the pandemic has accelerated the trend toward remote work, and it is likely that remote work will continue to be a more common and accepted way of working in the future.

From an immigration perspective, many countries are exploring the possibility of offering a “nomad” visa, and some others have already updated their laws and now offer a nomad visa. Mexico is not offering a specific “nomad visa” or program, but it does offer a Temporary Resident Visa that can be obtained for a variety of purposes, including studying, working, or retirement.

While the Temporary Resident Visa’s non-lucrative activities are not specifically designed for digital nomads, the visa can be a viable option for those who wish to live and work in Mexico for an extended period and continue working remotely. The Temporary Resident Visa for non-lucrative activities, in general terms, will be the appropriate immigration visa for foreigners coming to Mexico to work remotely, provided that they continue to receive their salaries or income from abroad.

Moreover, the non-lucrative visa is a type of visa that allows individuals to live in Mexico for an extended period without engaging in any paid work or remunerative activities. This type of visa is typically intended for individuals who have sufficient financial resources to support themselves while living in the host country and who wish to spend an extended period of time there for leisure or other non-work-related purposes.

To obtain a non-lucrative visa to work remotely and live in Mexico, foreigners must meet certain requirements, such as proof of economic solvency, demonstrating that they have a steady source of income or savings to support themselves during their stay in Mexico, explaining the activities to be carried out, and identifying the city where they plan to live, among others.

This type of visa is requested directly at the Consulate General of Mexico of the foreigner’s choice as the first step of the process. The second and final stage of the process is to convert the consular visa to the temporary resident card for non-lucrative activities.

Details:

Temporary Resident Visa, Government of Mexico. https://consulmex.sre.gob.mx/leamington/index.php/non-mexicans/visas/115-temporary-resident-visa

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New Publications and Items of Interest

OFLC webinar on new AEWR rule. The Department of Labor’s Office of Foreign Labor Certification invites interested stakeholders to participate in a webinar on April 4, 2023, that provides an overview of the new Adverse Effect Wage Rate (AEWR) rule and gives the stakeholder community an opportunity to familiarize itself with the regulatory changes. The webinar will discuss the methodology behind the new AEWR rule and examples of how it will be applied. https://www.dol.gov/agencies/eta/foreign-labor (scroll to March 27, 2023).

OFLC webinar materials on CW-1 applications. On March 20, 2023, the Department of Labor’s Office of Foreign Labor Certification conducted a webinar that provided an overview of common issues the National Processing Center has identified with CW-1 Applications for Temporary Employment Certification and offered filing tips to minimize common application errors. The presentation materials are now available under the “Webinars” tab at the bottom of the CW-1 Program page at https://www.dol.gov/agencies/eta/foreign-labor/programs/cw-1.

EOIR staff directory. The Department of Justice’s Executive Office for Immigration Review has released a staff directory for its Office of the Chief Immigration Judge. The directory includes names and telephone numbers of staff, including clerks. https://www.justice.gov/eoir/page/file/1563306/download

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 is available on Twitter: @ABILImmigration

Recent ABIL member blogs are at http://www.abilblog.com/
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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has launched a new website that is responsive to mobile and tablet devices. https://klaskolaw.com/

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was included on the Top 100 list of Georgia Super Lawyers, as the only immigration lawyer on the list.

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) presented “Nonimmigrant Options for Singaporeans,” hosted by Enterprise Singapore on March 13, 2023, during SxSW Interactive in Austin, Texas. The presentation reviewed U.S. immigration classifications, options, timeframes, red flags, and trends available to a delegation of companies and startups from Singapore.

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box have co-authored a blog posting: ” Dealing with Section H.10-B Labor Certification Denials.” http://blog.cyrusmehta.com/2023/03/dealing-with-section-h-10-b-labor-certification-denials.html

Mr. Mehta was quoted by the Times of India in “USCIS New Guidelines on Employer’s Ability to Pay May Help Startups Retain Talent.” Mr. Mehta said, “The new ‘Ability to Pay’ (ATP) guidance may help employers who may not have sufficient net income or be able to show that the difference between the net current assets exceed[s] the next current liabilities in their tax returns. The guidance allows for an analysis of ‘other factors’ to demonstrate the employer’s ability to pay especially when companies operate at a loss for a period to improve their business position in the long run.” Mr. Mehta added that the new guidance “might thus help startups to demonstrate their ability to pay by submitting other evidence including bank statements, personnel records, credit lines, gross sales and revenues as well as media accounts about the company and its overall reputation.”

Mr. Mehta and Jessica Paszko co-authored a new blog posting: “Pathways for H-1B Workers Who Want to Become Entrepreneurs.” http://blog.cyrusmehta.com/2023/03/pathways-for-terminated-h-1b-workers-who-want-to-become-entrepreneurs.html

Mr. Mehta and Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) were quoted by the Times of India in “Laid-Off H-1B Workers to Get 6-Month Reprieve.” The article discusses a recommendation by a presidential advisory panel to extend the grace period for laid-off H-1B workers from 60 to 180 days. In the past six months, the article notes, many laid-off H-1B employees have highlighted on social media their plight of trying to find another job within the 60-day grace period after a layoff. Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services (USCIS) “is not required to follow that recommendation.” Moreover, he said, even if USCIS were to extend the grace period, the agency “might have to go through the normal rulemaking process to do that. That could take months.” Also, he noted, if USCIS extends the grace period, “expect a lawsuit by U.S. workers challenging the change as beyond the immigration agency’s authority. Finally, a grace period extension wouldn’t apply retroactively to help H-1B workers already laid off. In sum, laid-off H-1B workers should not get their hopes up yet.” Mr. Mehta called the recommendation “good news” and said the extended period would not take effect immediately. “The actual regulation at 8 CFR (Code of Federal Regulations) needs to be amended, which is a process, since the administration must allow for notice and comment to the public before changing a rule,” he said. https://timesofindia.indiatimes.com/business/international-business/laid-off-h-1b-workers-may-get-6-month-reprieve/articleshow/98679904.cms?from=mdr

WR Immigration will present a webinar on the Department of Homeland Security’s (DHS) announcement of a new process to protect undocumented whistleblowers, on Thursday, May 11, 2023, at 11 a.m. PT. WR Immigration and Hirschfeld Kraemer LLP will discuss what employers need to know. Attorneys will share their insights on what employers can expect in the months ahead, including likely claims and how employers can prepare in light of the new DHS policy. https://wolfsdorf.com/us-department-of-homeland-security-announces-new-process-to-protect-undocumented-whistleblowers/ (article); https://us02web.zoom.us/webinar/register/5916790874887/WN_Ko4qkNdRQAyCpRpYWxfbow (webinar)

WR Immigration has released a video, “Chatting with Charlie: Understanding the March 2023 Visa Bulletin.” In this month’s episode, WR Immigration Director of Visa Consulting Charlie Oppenheim, Partner Charina Garcia and Senior Associate Laura Bloniarz will update HR and global mobility professionals with the latest information from the Department of State’s March 2023 Visa Bulletin. The Chatting with Charlie webinar series focuses on basics of the visa bulletin, projections of retrogression and backlogs, predictions on visa movements, and guidance for strategic visa planning for HR and global mobility managers, in addition to visa applicants who want to learn how to understand the visa bulletin. https://www.youtube.com/watch?v=Kgw7Y2cJl24&t=173s

WR Immigration has published “USCIS Issues Policy Alert on Evidence for Employers’ Ability to Pay Proffered Wage.” https://wolfsdorf.com/uscis-issues-policy-alert-on-evidence-for-employers-ability-to-pay-proffered-wage/

WR Immigration, a nationally ranked Tier 1 law firm, was named a 2023 Legal Technology Trailblazer by the National Law Journal. The annual list recognizes companies pioneering in the legal industry by developing technology that improves how legal professionals and law firms operate. WR Immigration was recognized for its proprietary Immigration Management System, WRapid™—a centralized, cloud-based platform and Enterprise Resource Planning solutions software for business immigration. https://wolfsdorf.com/wrapid-recognized-as-legal-technology-trailblazer-by-the-national-law-journal-for-best-immigration-software/

On February 24, 2023, Cornell Law School sponsored “Immigration Reform: Lessons Learned and A Path Forward,” a conference held at the National Press Club in Washington, DC. Both in-person and over Zoom, about 220 people attended the conference, which explored targeted legislation and other policy changes that could be enacted in 2023. Panels focused on three topics: work visa changes to help alleviate high-skilled and low skilled-labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers, and others. “Major reforms require the convergence of a widely recognized problem, policy solutions, and sufficient political will, ” said Mr. Yale-Loehr, conference co-organizer and moderator. “Our conference brought together expert scholars, analysts, and advocates to probe ways to clarify key problems, identify achievable policies, and build the political will needed to enact them. We hope to build on the conference discussions to develop constructive proposals that have a realistic chance of enactment this year.” https://www.lawschool.cornell.edu/news/law-school-sponsors-conference-on-immigration-reform-at-national-press-club/

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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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