ABIL Immigration Insider • August 4, 2024

/in /by

In this issue:

1. USCIS Will Conduct Second Random Selection for Regular Cap From Previously Submitted FY 2025 H-1B Cap Registrations – U.S. Citizenship and Immigration Services will select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation. USCIS will make the selections from previously submitted electronic registrations using a random selection process.

2. I-9 Expiration Date Extended – U.S. Citizenship and Immigration Services has extended the expiration date of Form I-9, Employment Eligibility Verification, to 05/31/2027.

3. USCIS Releases Stats on O-1A Visas, National Interest Waivers, and EB-2 Receipts Since 2022 Guidance – U.S. Citizenship and Immigration Services has reported movement in the numbers of O-1A and EB-2 visa applications and approvals since Biden administration guidance was released in early 2022, along with an overall increase in applications for national interest waivers, although the approval rate for the latter declined. The approval rate for both O-1A and EB-2 applications remained at 90 percent or above in fiscal years 2018 through 2023.

4. DOS Issues Notice of Class-Wide Relief in Emami Litigation – The Department of State announced class-wide relief to begin August 12, 2024, following litigation, “to allow certain visa applicants who were refused visas under Presidential Proclamation 9645…to receive a one-time, non-transferable fee credit to submit a new visa application and (for eligible class members) to have the option to get a prioritized visa appointment.”

5. CIS Ombudsman Expands Nationwide Reach With Regional Representatives – The Citizenship and Immigration Services Ombudsman has expanded its reach across the United States with four regional representatives based in Los Angeles (Western), Dallas (Central), Boston (Northeast), and Orlando (Southeast).

6. DHS Adds Environmental Economics to STEM Designated Degree Program List – The Department of Homeland Security has amended its Science, Technology, Engineering and Mathematics Designated Degree Program List by adding “Environmental/Natural Resource Economics” to the qualifying fields of study

7. White House Orders Deferred Enforced Departure for Certain Lebanese Nationals – President Biden issued a memorandum directing the deferral, for 18 months, of the removal of any Lebanese national who was present in the United States on July 23, 2024, with a few exceptions.

8. USCIS Increases Investment and Revenue Thresholds Under International Entrepreneur Rule – In a final rule effective October 1, 2024, U.S. Citizenship and Immigration Services will increase the investment and revenue thresholds under International Entrepreneur Rule, as required every three years. The application fee will not change.

9. DOS Clarifies Guidance on Easing the Nonimmigrant Visa Process for College Graduates – On June 18, 2024, the Biden administration announced actions to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer. As part of this initiative, the Department of State clarified existing guidance to consular officers related to when they should consider recommending that the Department of Homeland Security grant a waiver of ineligibility, where applicable.

10. USCIS Issues New Policy Guidance on Noncompliance With EB-5 Regional Center Program – U.S. Citizenship and Immigration Services has issued policy guidance, effective immediately, on new provisions in the Immigration and Nationality Act that cover consequences for noncompliance with the EB-5 immigrant investor regional center program.

11. USCIS Publishes FAQs on H-1B Nonimmigrant Status – U.S. Citizenship and Immigration Services released frequently asked questions that address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident status, job changes or terminations, international travel, and dependent family members.

12. TPS Extended and Redesignated for Somalia; Work Authorization for F-1 Nonimmigrant Students From Somalia Announced – The Department of Homeland Security (DHS) announced that the designation of Somalia for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, to March 17, 2026. DHS also announced work authorization relief for F-1 students from Somalia.

13. USCIS Updates Public Information on International Entrepreneur Rule – U.S. Citizenship and Immigration Services (USCIS) recently updated its public information under the International Entrepreneur Rule.

14. TPS Extended and Redesignated for Yemen; Work Authorization for F-1 Nonimmigrant Students From Yemen Announced – The Department of Homeland Security announced that the designation of Yemen for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, ending on March 3, 2026. DHS also announced work authorization relief for F-1 students from Yemen.

15. Visa Bulletin: No Further Retrogression in EB-3 Category for August – The bulletin notes that although retrogression has not been necessary for August in the EB-3 category, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September.

16. DHS Proposes Expansion of Hefty Fees on H-1B and L-1 Visas Under 9-11 Response and Biometric Entry-Exit Requirements – The proposed regulatory changes would require covered employers to submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status.

17. USCIS Seeks Comments on Revisions to Application for Employment Authorization – Comments are due by August 12, 2024.

18. OFLC Releases Technical Notes on How It Will Apply the 2018 Standard Occupational Classification to Wages – The Department of Labor’s Office of Foreign Labor Certification (OFLC) released technical notes that explain how OFLC will apply the 2018 Standard Occupational Classification structure to Occupational Employment and Wage Statistics wages for the July 2024 through June 2025 wage year.

19. ABIL Global: France – A new law to control immigration entered into force on January 26, 2024. France also announced procedures related to the Olympic and Paralympic Games in Paris and other cities this summer, and France is on notice for failure to transpose a European Union directive relating to the European Blue Card.

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 – August 2024

1. USCIS Will Conduct Second Random Selection for Regular Cap From Previously Submitted FY 2025 H-1B Cap Registrations

Following its initial selections in March 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it will need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation. USCIS will make the selections from previously submitted electronic registrations using a random selection process.

USCIS said it will notify prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary. Those with selected registrations will have their USCIS online accounts updated to include a selection notice, which includes details of when and where to file.

USCIS will not conduct a second selection for the advanced degree exemption (master’s cap) because a sufficient number of master’s cap registrations were already selected and petitions received are projected to meet the FY 2025 master’s cap numerical allocation. The second round of selection for the regular cap will include previously submitted registrations that indicated eligibility for the master’s cap along with those that indicated only eligibility for the regular cap.

Details:

Back to Top

2. I-9 Expiration Date Extended

U.S. Citizenship and Immigration Services (USCIS) has extended the expiration date of Form I-9, Employment Eligibility Verification, to 05/31/2027.

Employers must use the Form I-9 with the edition date of 08/1/23, which may have an expiration date of either 07/31/2026 or 05/31/2027. Either form may be used until its respective expiration date, USCIS said. However, downloads from the Form I-9 download page will only include the new 05/31/2027 expiration date.

USCIS said that employers “are encouraged to update their electronic Forms I-9 systems to use the 05/31/2027, expiration date as soon as possible and must do so no later than July 31, 2026, the expiration date on the previously issued Form I-9.”

Details:

Back to Top

3. USCIS Releases Stats on O-1A Visas, National Interest Waivers, and EB-2 Receipts Since 2022 Guidance

U.S. Citizenship and Immigration Services (USCIS) has reported movement in the numbers of O-1A and EB-2 visa applications and approvals since Biden administration guidance was released in early 2022, along with an overall increase in applications for national interest waivers, although the approval rate for the latter declined. The approval rate for both O-1A and EB-2 applications remained at 90 percent or above in fiscal years (FYs) 2018 through 2023. Below are highlights.

O-1A Visas: Applications and Approvals Increased

According to reports, after the Biden administration announced new guidance in January 2022, there were significant increases in applications and approvals for high-skilled visas, including O-1A visas for individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures, or television industry).

The 2022 guidance provided “examples of evidence that may satisfy the O-1A evidentiary criteria and discusse[d] considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM [science, technology, engineering, and mathematics] fields and the complexity of the evidence often submitted.”

U.S. Citizenship and Immigration Services (USCIS) reported that from FY 2021 to FY 2022, total receipts of Forms I-129 for O-1A petitioners increased 29 percent, from 7,710 to 9,970. They continued to increase slightly from 9,970 in FY 2022 to 10,010 in FY 2023. Approvals followed a similar trend by increasing by 25 percent from FY 2021 to FY 2022, from 7,320 to 9,120. They continued to increase slightly from 9,120 in FY 2022 to 9,490 in FY 2023. The approval rate remained stable at 90 percent or above in FYs 2018 through 2023.

EB-2 Receipts Increased; Approvals Increased, Then Decreased

There were also increases in EB-2 receipts, although approvals declined after increasing. USCIS reported that from FY 2021 to FY 2022, total receipts of Forms I-140 with and without waivers (combined) increased by 20 percent, from 70,600 to 84,470. Receipts continued to increase by another 10 percent from FY 2022 to FY 2023. Approvals increased by 60 percent from 57,810 in FY 2021 to 92,280 in FY 2022 but decreased about 12 percent from 92,280 in FY 2022 to 81,380 in FY 2023. The approval rate remained at 90 percent or above in FYs 2018 through 2023.

USCIS also noted that total EB-2 receipts in STEM job categories decreased by almost 13 percent, from 61,790 in FY 2022 to 53,960 in FY 2023. Receipts in non-STEM job categories increased by 28 percent during that time. Increasing numbers of EB-2 petitioners are requesting national interest waivers.

Details:

Back to Top

4. DOS Issues Notice of Class-Wide Relief in Emami Litigation

The Department of State (DOS) announced class-wide relief to begin August 12, 2024, following litigation in the consolidated cases Emam v. Mayorkas and Pars Equality Center v. Blinken, “to allow certain visa applicants who were refused visas under Presidential Proclamation 9645…to receive a one-time, non-transferable fee credit to submit a new visa application and (for eligible class members) to have the option to get a prioritized visa appointment.” The fee credit may be used once toward any immigrant or nonimmigrant visa at any U.S. embassy or consulate, DOS said.

Class members include eligible nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were denied a visa under Presidential Proclamation 9645 between December 8, 2017, and January 20, 2021, and did not receive a waiver under Presidential Proclamation 9645. The notice includes details on eligibility and how to apply.

Details:

Back to Top

5. CIS Ombudsman Expands Nationwide Reach With Regional Representatives

The Citizenship and Immigration Services (CIS) Ombudsman has expanded its reach across the United States with four regional representatives based in Los Angeles (Western), Dallas (Central), Boston (Northeast), and Orlando (Southeast).

According to a statement from the CIS Ombudsman’s office, the regional representatives will:

  • Engage with local immigration stakeholders to build relationships and hear about their experiences with U.S. Citizenship and Immigration Services (USCIS);
  • Help identify issues that may only be occurring in specific areas or USCIS offices;
  • Share feedback from local stakeholders with the CIS Ombudsman’s headquarters team to inform the recommendations it sends to USCIS to improve the agency’s policies and processes; and
  • Provide an overview of the CIS Ombudsman’s case assistance services and clarify the process to the public.

The CIS Ombudsman said its public engagement team will continue to meet with stakeholders throughout the country, focusing on national and international organizations and employers, foreign embassies and consulates, and headquarters-level components of other federal departments and agencies.

Details:

Back to Top

6. DHS Adds Environmental Economics to STEM Designated Degree Program List

Effective July 23, 2024, the Department of Homeland Security (DHS) has amended its STEM [Science, Technology, Engineering and Mathematics] Designated Degree Program List by adding “Environmental/Natural Resource Economics” to the qualifying fields of study, and the corresponding Department of Education Classification of Instructional Programs code for that field:

The list is used to determine whether a degree obtained by certain F-1 nonimmigrant students following the completion of a program of study qualifies as a STEM degree as determined by DHS, as required for the F-1 student to be eligible to apply for a 24-month extension of their post-completion optional practical training (OPT) work authorization (EAD).

Details:

Back to Top

7. White House Orders Deferred Enforced Departure for Certain Lebanese Nationals

On July 26, 2024, President Biden issued a memorandum directing the deferral, for 18 months, of the removal of any Lebanese national who was present in the United States on that date, with a few exceptions.

The memo also directs the Department of Homeland Security to authorize employment for noncitizens whose removal has been deferred under the memo for the duration of such deferral, and to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Lebanese nationals “as the Secretary of Homeland Security determines to be appropriate.”

Details:

Back to Top

8. USCIS Increases Investment and Revenue Thresholds Under International Entrepreneur Rule

In a final rule effective October 1, 2024, U.S. Citizenship and Immigration Services (USCIS) will increase the investment and revenue thresholds under the International Entrepreneur Rule (IER), as required every three years. The application fee will not change.

The IER allows the Department of Homeland Security (DHS) to “grant a period of authorized stay [parole], on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.” Under the rule, entrepreneurs granted parole are eligible to work only for their start-up businesses. The spouses and children of noncitizen entrepreneur may also be eligible for parole.

USCIS will make the following adjustments:

  • For an initial application, entrepreneurs must show at least $311,071 (currently $264,147) in qualified investments from qualifying investors, at least $124,429 (currently $105,659) in qualified government awards or grants, or, if only partially meeting the threshold investment or award criteria, alternative reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
  • For a second period of authorized stay under the IER, the entrepreneur generally must demonstrate that the start-up entity has either:
    • Received a qualified investment, qualified government grants or awards, or a combination of such funding, of at least $622,142 (currently $528,293);
    • Created at least five qualified jobs; or
    • Reached annual revenue in the United States of at least $622,142 (currently $528,293) and averaged at least 20% in annual revenue growth.
  • The definition of a “qualified investor” requires the investor to have a history of substantial investment in successful startup entities. USCIS generally considers such an individual or organization a qualified investor if, during the preceding five years, the following apply:
    • The individual or organization made investments in startup entities of at least $746,571 (currently $633,952) in total, in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within the startup entities’ respective industries; and
    • After such investment by such individual or organization, at least two such startup entities each created at least five qualified jobs or generated at least $622,142 (currently $528,293) in revenue with average annualized revenue growth of at least 20%.

Details:

Back to Top

9. DOS Clarifies Guidance on Easing the Nonimmigrant Visa Process for College Graduates

On June 18, 2024, the Biden administration announced actions to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer. As part of this initiative, on July 15, 2024, the Department of State (DOS) clarified existing guidance to consular officers related to when they should consider recommending that the Department of Homeland Security grant a waiver of ineligibility under INA § 212(d)(3), where applicable.

The DOS guidance explains that there is a clear and significant U.S. public interest in requesting a waiver on an expedited basis “if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States.”

Details:

Back to Top

10. USCIS Issues New Policy Guidance on Noncompliance With EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance, effective immediately, on new provisions in the Immigration and Nationality Act (INA) that cover consequences for noncompliance with the EB-5 regional center program.

The guidance updates Part G, Investors, in Volume 6 of the Policy Manual, to incorporate statutory reforms included in the EB-5 Reform and Integrity Act of 2022 (RIA). USCIS explained:

The guidance interprets the provisions related to sanctions, including terminations, debarments, and suspensions, for noncompliant regional centers, new commercial enterprises, job-creating entities, investors, and others. The guidance also explains what may be considered threats to the national interest, fraud, intentional material misrepresentation, deceit, and criminal misuse in the context of discretionary determinations that require us to take adverse action on certain EB-5 petitions, applications, and benefits. It also outlines special considerations for good-faith pre-RIA investors a to retain eligibility under INA sec. 203(b)(5)(M) after we terminate or debar their regional center, new commercial enterprise, or job-creating entity due to noncompliance.

Details:

Back to Top

11. USCIS Publishes FAQs on H-1B Nonimmigrant Status

U.S. Citizenship and Immigration Services (USCIS) released frequently asked questions (FAQs) that address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident (LPR) status, job changes or terminations, international travel, and dependent family members.

For example, USCIS noted that:

  • An eligible H-1B worker can change employers as soon as the new employer’s nonfrivolous H-1B petition is properly filed with USCIS.
  • USCIS will not revoke a Form I-140 petition approval solely due to termination of the petitioner’s business or the employer’s withdrawal, as long as the petition has been approved for at least 180 days or the associated adjustment of status application has been pending for at least 180 days, and the petition approval is not revoked on other grounds. In this scenario, the H-1B worker would retain their priority date.
  • When an H-1B worker’s employment is terminated (either voluntarily or involuntarily), they typically may take one of several actions to remain in a period of authorized stay in the United States beyond 60 days.

A chart in the FAQs summarizes some common scenarios for H-1B workers.

Details:

Back to Top

12. TPS Extended and Redesignated for Somalia; Work Authorization for F-1 Nonimmigrant Students From Somalia Announced

The Department of Homeland Security (DHS) announced that the designation of Somalia for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, from September 18, 2024, to March 17, 2026. DHS also announced work authorization relief for F-1 students from Somalia. Below are highlights of DHS’s actions.

TPS Extension and Redesignation

The 60-day re-registration period for existing beneficiaries began July 22, 2024, and runs through September 20, 2024. U.S. Citizenship and Immigration Services (USCIS) encourages those who currently have TPS to timely re-register during the re-registration period and not wait until their Employment Authorization Documents (EADs) expire because delaying re-registration could result in gaps in their employment authorization documentation. DHS said that USCIS will continue to process pending applications filed under previous TPS designations for Somalia.

The redesignation of Somalia for TPS allows an estimated 4,300 Somali nationals (and individuals having no nationality who last habitually resided in Somalia) who have been continuously residing in the United States since July 12, 2024, to file initial applications for TPS if they are otherwise eligible. The extension of TPS for Somalia allows approximately 600 current beneficiaries to retain TPS through March 17, 2026, if they continue to meet TPS eligibility requirements.

DHS said it recognizes that not all re-registrants may receive a new EAD before their current EAD expires. For that reason, DHS is automatically extending through September 17, 2025, the validity of certain EADs previously issued under Somalia’s TPS designation.

Work Authorization Relief for F-1 Nonimmigrant Students From Somalia

DHS is also suspending certain regulatory requirements for F-1 nonimmigrant students from Somalia. These students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant status.

An F-1 nonimmigrant student must file Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current crisis in Yemen.

Details:

  • DHS news release (July 19, 2024).
  • USCIS TPS notice, 89 Fed. Reg. 59135 (advance copy) (July 22, 2024).
  • S. Immigration and Customs Enforcement notice on employment authorization for F-1 students from Somalia, 89 Fed. Reg. 59129 (advance copy) (July 22, 2024).

Back to Top

13. USCIS Updates Public Information on International Entrepreneur Rule

U.S. Citizenship and Immigration Services (USCIS) recently updated its public information under the International Entrepreneur Rule (IER). USCIS noted that the rule allows the Department of Homeland Security (DHS) to “grant a period of authorized stay [parole], on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.”

Under the rule, entrepreneurs granted parole are eligible to work only for their start-up business. The spouse and children of the noncitizen entrepreneur may also be eligible for parole, USCIS noted. The agency listed several “threshold criteria and key elements” of the rule:

  • Entrepreneurs may be either living abroad or already in the United States.
  • Start-up entities must have been formed in the United States within the past five years.
  • Start-up entities must demonstrate substantial potential for rapid growth and job creation by showing at least $264,147 in qualified investments from qualifying investors, at least $105,659 in qualified government awards or grants, or alternative evidence.
  • The spouse of the entrepreneur may apply for employment authorization after being paroled into the United States.
  • The entrepreneur may be granted an initial parole period of up to 2½ years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue described in the guidance, the entrepreneur may receive up to another 2½ years, for a maximum of five years. (At that point or earlier, there are other Options for Noncitizen Entrepreneurs to Work in the United States, USCIS noted.)
  • Up to three entrepreneurs per start-up can be eligible for parole under the rule.

Details:

Back to Top

14. TPS Extended and Redesignated for Yemen; Work Authorization for F-1 Nonimmigrant Students From Yemen Announced

The Department of Homeland Security (DHS) announced that the designation of Yemen for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, beginning on September 4, 2024, and ending on March 3, 2026. DHS also announced work authorization relief for F-1 students from Yemen. Below are highlights of DHS’s actions.

TPS Extension and Redesignation for Yemen

This extension and redesignation allows Yemeni nationals (and individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 2, 2024, and who have been continuously physically present in the United States since September 4, 2024, to apply or re-register for TPS, the notice states.

The 60-day re-registration period for existing beneficiaries began on July 10, 2024, and runs through September 9, 2024. U.S. Citizenship and Immigration Services encouraged re-registrants to timely re-register during the re-registration period and not wait until their Employment Authorization Documents (EADs) expire because delaying re-registration could result in gaps in their employment authorization documentation.

The redesignation of Yemen for TPS allows an estimated 1,700 Yemeni nationals (and individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 2, 2024, to file initial applications for TPS if they are otherwise eligible, the notice states. The extension of TPS for Yemen allows approximately 2,300 current beneficiaries to retain TPS through March 3, 2026, if they continue to meet TPS eligibility requirements.

Work Authorization Relief for F-1 Nonimmigrant Students From Yemen

DHS is also suspending certain regulatory requirements for F-1 nonimmigrant students from Yemen who are experiencing severe economic hardship as a direct result of the current crisis in Yemen. These students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant status. This action covers eligible F-1 nonimmigrant students from Yemen beginning on September 4, 2024, and ending on March 3, 2026.

An F-1 nonimmigrant student must file Form I-765, Application for Employment Authorization, with U.S. Citizenship and Immigration Services to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current crisis in Yemen.

Details:

Back to Top

15. Visa Bulletin: No Further Retrogression in EB-3 Category for August

The Department of State’s Visa Bulletin for August 2024 shows no further retrogression in the EB-3 visa category following retrogression in July. However, the August bulletin notes:

As readers were informed in Item D of the July 2024 Visa Bulletin, demand and number use has remained high in the EB-3 visa category. Although retrogression has not been necessary for August, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Back to Top

16. DHS Proposes Expansion of Hefty Fees on H-1B and L-1 Visas Under 9-11 Response and Biometric Entry-Exit Requirements

The Department of Homeland Security (DHS) has proposed to amend and clarify regulations concerning the 9-11 Response and Biometric Entry-Exit fee for H-1B and L-1 visas. The proposed regulatory changes would require covered employers to “submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status.”

Reaction. Commenting on the proposed rule on July 8, 2024, the American Immigration Lawyers Association (AILA) noted that “DHS is proposing to significantly change its interpretation regarding when the 9-11 Biometric Fee, implemented under Public Law 114-113 for H-1B and L-1 visas, is required. This law created an additional fee of $4,000 for H-1B petitions and $4,500 for L-1 petitions when H-1B or L-1 workers comprise more than 50% of the petitioner’s U.S. workforce (Covered Employers). This fee is in addition to the other filing fees associated with these petitions.” In 2019, AILA explained, “in response to the DHS proposed revisions to the USCIS fee schedule that was ultimately enjoined, AILA urged DHS not to adopt the same statutory interpretation it proposes now, citing, among other reasons, the significant harm it would cause for certain U.S. employers, and that it was contrary to the plain language and intent of the statute.” In its comment, AILA delineated the reasons for its disagreement with the current proposal, which would require covered employers to pay the 9-11 Biometric Fee “not only for initial benefit requests with which all employers must include the Fraud Fee but also for requests by the same Covered Employer to extend the same worker’s H-1B or L-1 status, even though in the latter scenario the Fraud Fee is not required.”

Details:

Back to Top

17. USCIS Seeks Comments on Revisions to Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) seeks additional comments on its revisions to Form I-765, Application for Employment Authorization. Comments are due by August 12, 2024.

The notice states that instead of going to a Social Security Office, an applicant for work authorization can now apply for a Social Security Number (SSN) and Social Security card using Form I-765. If the relevant data elements are filled out, USCIS will send the applicant’s information to the Social Security Administration (SSA) upon approval of the employment authorization request. If the applicant already has an SSN and requested a Social Security card on Form I-765, SSA will issue a replacement SSN card.

Details:

Back to Top

18. OFLC Releases Technical Notes on How It Will Apply the 2018 Standard Occupational Classification to Wages

The Department of Labor’s Office of Foreign Labor Certification (OFLC) released technical notes that explain how OFLC will apply the 2018 Standard Occupational Classification (SOC) structure to Occupational Employment and Wage Statistics (OEWS) wages for the July 2024 through June 2025 wage year.

OFLC said that OEWS has aggregated certain 2018 SOC detailed occupations into a single broad occupation. OFLC will apply the single broad occupation wage estimate to each of the 2018 SOC detailed occupations. OEWS has published a list of OEWS occupations and definitions that include 2018 SOC detailed occupations that have been aggregated; a link to the list is included in the technical notes.

OFLC also explained that in certain instances, the 2018 SOC codes “may be aggregated, may not have wage estimates due to OEWS data limitations, may not have American Competitiveness and Workforce Improvement Act (ACWIA) Higher Education wage estimates due to OEWS data limitations, or may not have Job Zone data due to the Occupational Information Network (O*NET) data limitations.” The technical notes include examples of such instances.

Back to Top

19. ABIL Global: France

A new law to control immigration entered into force on January 26, 2024. France also announced procedures related to the Olympic and Paralympic Games in Paris and other cities this summer, and France is on notice for failure to transpose a European Union directive relating to the European Blue Card.

The new law’s legislative journey and the media debate around it have been very intense over several months. Important measures like massive regularization of undocumented workers in short-staffed professions have finally been rejected by the Senate.

The legislative process has been lively: after the adoption by the Senate of a text presenting several setbacks for foreigners’ rights, a motion for prior rejection was adopted by the National Assembly. Finally, Deputies from the majority, the right wing, and the far right wing agreed on the final text, including several measures already identified as unconstitutional.

The Constitutional Council, in its decision of January 25, censored 35 articles of the law. The Constitutional Council has deemed the following measures unconstitutional:

  • Migration quotas. The law planned the establishment of “quotas” to cap for the next three years the number of foreigners admitted to the country. Because this measure was considered unconstitutional by the Constitutional Council, quotas will not be implemented.
  • Family reunification. The conditions for family reunification will remain the same. The extension of the duration of residence in France for more than 24 months has been deemed unconstitutional as well as the other new measures regarding family reunification.

With regard to aspects relating more to private life, the following measures deemed unconstitutional have been excluded:

  • Tightening of the conditions to be met by a foreigner married to a French national to be issued with a temporary residence permit bearing the title “private and family life” for a period of one year;
  • Tightening of the conditions for issuing a residence permit for reasons of study; and
  • Full right issuance of a long-stay visa to British nationals who own a secondary home in France.

Legislative Changes

Measures under this new law that directly impact professional immigration include:

Talent Passport Residence Permits

“Talent Passport” residence permits change their name to “Talent” residence permits, in a simplification effort.

The following three Talent Passport residence permits all merge to a single “Talent—Qualified employee” residence permit: (1) Talent—Passport Qualified employee, (2) Talent Passport employee of an innovative company, and (3) Talent Passport intra-company. This simplification does not modify the initial conditions required for each status, but the minimum salary thresholds could change since the article refers to “a salary threshold set by decree in the Council of State,” which has not yet been published.

The following three Talent Passport residence permits will all merge into a single “Talent—Project Bearer” residence permit: (1) Talent Passport—Business Creation, (2) Talent Passport innovative economic project, and (3) Talent Passport economic investment.

The new law also creates a “Talent—medical and pharmacy professions” residence permit for doctors, midwives, dental surgeons, and pharmacists.

Regularization of Undocumented Workers in Short-Staffed Professions

The law gives prefects discretion to regularize an undocumented worker who has lived in France for at least three years; worked at least 12 months, consecutive or not, over the last 24 months; and has a job in a short-staffed profession in a specific area. This will allow the issuance of a residence permit bearing the title “temporary worker” or “employee” for a period of one year. The worker can apply without the employer’s approval.

Olympic Games 2024

The Olympic Games are taking place in Paris and other cities (Marseille, Toulouse, Lille). They began July 26 and will run until August 11, 2024. The Paralympic Games will take place from August 28 to September 8, 2024.

Among measures for foreigners is the possibility for foreign students to participate in private security activities. The work time performed in these activities will not be considered in the calculation of the ancillary work time allowed for foreign students, which is 60 percent of the annual work time (i.e., around 964 hours per year).

Also, according to the French Ministry and consulates in the United States, a simplified process has been implemented for travelers for whom an accreditation request is submitted to the Olympic or Paralympic Committee, such as members of the Olympic and Paralympic Committees, athletes, accompanying persons, media, and official guests.

They can appear in any visa center to apply for a visa without an appointment; a time slot is dedicated to them every morning. They only need to provide their passport, proof of accreditation, and photos. Fingerprinting takes place as well. There are no visa fees to be paid and no visa form to be filled out before submission of the application.

Absence of Transposition of EU Blue Card Directive

On January 25, 2024, the European Commission announced adoption of a set of decisions concerning delays in the transposition of European Union (EU) Directives. France is on notice for failure to transpose the directive of October 20, 2021, relating to the European Blue Card.

States had until November 18, 2023, to adapt their internal laws to EU Directives. In France, the law of January 26, 2024 (which includes several articles related to the work of foreigners) did not include any modification of the Foreigners Code (CESEDA) for European Blue Card status.

French authorities had two months to respond and complete the transposition. Failing this, the Commission could issue a reasoned opinion and, in the absence of a response, bring the matter before the EU Court of Justice. As of early August, there was no update regarding the transposition of the EU Blue Card Directive into French law, and the Commission had not yet issued its opinion.

The Foreigners Code (CESEDA) includes several provisions relating to the multi-year “talent, European blue card” residence card, but those are not in line with the Directive: the possibility for the foreigner to present an employment contract or a job offer of at least six months (currently 12 months); duration of the residence permit set at a minimum of 24 months (currently one year); and possible mobility to another Member State after 12 months of legal residence in the first Member State (instead of 18).

Back to Top

New Publications and Items of Interest

On August 7, 2024, the Department of Labor will host a public webinar (scroll to July 26, 2024) to educate stakeholders, program users, and other interested members of the public on the changes to the H-2A nonimmigrant agricultural workers program made by the 2024 H-2A Farmworker Protection Final Rule. Participants in this webinar will receive tips on the new forms, filing instructions, and explanation of the transition process. The Final Rule became effective June 28, 2024, and the Office of Foreign Labor Certification will begin accepting applications subject to the provisions of this rule on August 29, 2024.

Video of briefing on executive actions to streamline D-3 waivers and access to employment-based visas for college and university graduates, including Dreamers. On July 10, 2024, the Presidents’ Alliance, TheDream.US, Cornell Law School, and partners hosted a briefing on the significance of the Biden-Harris administration’s new executive actions to streamline D-3 waivers and access to employment-based visas for eligible college and university graduates, including Deferred Action for Childhood Arrivals (DACA) recipients and other Dreamers. The briefing covered various topics, including who could be eligible and how businesses and campuses can engage to support eligible beneficiaries.

CIS Ombudsman updated FAQ page, webinar on Annual Report. The Citizenship and Immigration Services Ombudsman recently updated its Frequently Asked Questions page. Also, the CIS Ombudsman held a webinar on its 2024 Annual Report on July 30, 2024.

E-Verify webinars: E-Verify has updated its calendar of webinars. There is a new webinar focusing on acceptable documents for the Form I-9 work authorization verification process, to be presented August 14 and 27, 2024. Other topics include E-Verify for existing and Web services users, employee rights, employer responsibilities, information for federal contractors, an overview of E-Verify and Form I-9 requirements, and myE-Verify, among others.

SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) has updated its calendar of webinars. Topics include current users and best practices, and an overview.

Immigration agency X (formerly Twitter) accounts:

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

Alliance of Business Immigration Lawyers: ABIL is available on X (formerly Twitter): @ABILImmigration

Back to Top

ABIL Member / Firm News

Dagmar Butte was quoted by Forbes in O-1A Visas, National Interest Waivers Rise After Immigration Guidance. She said she was not surprised that the approval rate for national interest waivers declined. “I think while the category has been broadened, Matter of Dhanasar still rules the day, so for me, every case has to pass that test before I’ll file it.” Ms. Butte referenced the Administrative Appeals Office decision Matter of Dhanasar (December 27, 2016), which established a three-factor test for national interest waivers.

Klasko Immigration Law Partners, LLP (KILP) is celebrating its 20th anniversary since its formation as a firm in 2004. Since its inception, KILP has grown from four partners to nine, from 30 employees to more than 110, from offices in two cities to offices in three cities with employees in 19 states. Over the last 20 years, KILP attorneys and the firm have been recognized by various publications, such as Chambers and Partners, U.S. News & World Report’s Best Lawyers in America©, Best Law Firms in America©, and Best Companies to Work For; EB5 Investors magazine; Human Resources Executive magazine; Lawdragon; and Lexology.

Cyrus Mehta authored a blog post: Obtaining Advance Parole on a Pending Adjustment of Status Application.

Mr. Mehta and Jessica Paszko authored a blog post: Does the Signing of the I-485 Supplement J by a New Employer Constitute Visa Sponsorship?

Greg Siskind of Siskind Susser PC authored a column on mastermind groups that was published by the American Bar Association (available by registration).

Jason Susser of Siskind Susser PC was quoted extensively by Forbes in USCIS Seeks to Boost Immigration Policy for Entrepreneurs (available via subscription). The article explains that Mr. Susser obtained approval for a client in the United States under the International Entrepreneur Rule, but the process took a long time, and the client returned to Canada and now runs a business there. “She was a graduate student and built a nice company. It took so long to get approved, and Canada has some major tax credits for startup [research and development] salaries that she told me she probably will not use the parole under the International Entrepreneur Rule after waiting two years and will remain in Canada.” The article notes that Mr. Susser said his client raised more than $1 million after completing her MBA at Stanford. Nine months passed after submitting the application before receiving a Request for Evidence from USCIS. “The first red flag was that the RFE came from the Immigrant Investor Program office, which are the officers who deal with EB-5 applications, and that program is notoriously slow. Then the RFE did not ask about the client but instead entirely focused on whether the U.S. investor is a ‘qualified investor.’ Even there, the big hang-up with the investor was not whether he had invested, but instead whether his investments in other companies had led to the required growth.” He said, “They were asking for documents of the U.S. investor’s other portfolio companies, which were unrelated to the case. Even though the investors we were working with were very supportive, they couldn’t go to companies they have invested in and ask for their employees’ I-9s, taxes and other private information to give to another company for an immigration case.” The case was approved after about two years, the article notes, but by that time, the client had decided to remain in Canada.

 

 

WR Immigration published a blog post: Corporate & Counsel Interlude: Employer Impact Statement on Parole and DACA/Dreamer Executive Order.

The Cornell International Law Journal will host “The (Im)possibility of Immigration Reform?,” a symposium celebrating the career of Stephen Yale-Loehr and his contributions to the field of immigration law. The symposium will be held at Cornell Law School on November 8, 2024, from 9:30 a.m. to 4 p.m., followed by a reception. Register to attend the symposium in person, or if you are unable to attend in person, there is a webinar option.

Mr. Yale-Loehr was quoted by the Boston Globe in ‘Czar’ or Not, Harris Bungled Immigration. He said that “it’s difficult to figure out what can be accomplished in a short period of time. I think she started the groundwork” to address the root causes of migration from Central America to the United States.

Mr. Yale-Loehr was quoted by the Chicago Sun-Times in Immigration Advocates in Chicago “Disappointed and Angry” Over Lack of Reforms, Plan DNC Protests. “I think there will be a lively debate at the Democratic National Convention in Chicago about immigration,” he said. “The Biden administration has done a lot, but really Congress needs to step up the plate to enact immigration reform to once and for all cure our broken immigration system.”

Mr. Yale-Loehr was quoted by Syracuse.com in Ecuadoran Accused of Killing Woman in Syracuse Was Waiting in U.S. for Immigration Hearing (available by subscription). He discussed what happens when a person crosses the border, with the overarching question of whether a person will be released into the United States or sent back. He noted that those requesting asylum will be asked whether they have a credible fear of persecution in their home country. If the answer is yes and the person provides an answer that doesn’t seem “frivolous,” they are let go with a court date and can remain in the United States while their asylum application is pending. Later they need to appear in immigration court and convince an immigration judge that their fear is based on one of the asylum grounds to remain in the United States, Mr. Yale-Loehr explained. In the case discussed in the article, the man accused of the murder, if convicted, is likely to serve a long sentence and be deported after completing it. “It’s clear that now he has come to the attention of the immigration authorities. No matter what happens with the criminal trial, he’s got immigration issues he’s going to have to deal with.”

Back to Top

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

Back to Top

ABIL Global Update • August 2024

/in /by

Headlines:

1. GOVERNMENT IMMIGRATION FEES: AN OVERVIEW – This article provides an overview of government immigration fees in several countries.

2. COLOMBIA – This article discusses visa options for retirees and “digital nomads” in Colombia.

3. EUROPEAN UNION – The Council of the European Union has extended temporary protection for Ukrainian refugees until March 2026.

4. ITALY – Italy has amended its immigration law to provide quota-free entry for foreign workers. Also, under new EU Blue Card implementing guidelines, Italy has expanded acceptable documentation of validation of university diplomas.

5. UNITED KINGDOM – There have been developments related to right-to-work checks and the transition to eVisas.

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

ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – August 2024

Details:

1. GOVERNMENT IMMIGRATION FEES: AN OVERVIEW

This article provides an overview of government immigration fees in several countries.

 

Belgium

Strictly speaking, there is no filing fee for work authorization for third-country employees. Third-country individuals who want to be active in Belgium as self-employed must apply for a professional card. The filing fee is €140, or, if filed abroad, the equivalent in local currency of €140 (at present $153 USD). There is no “premium processing” fee.

However, there is a “contribution fee” to be paid when filing a first work authorization or professional card application. This fee covers the administrative costs for processing an application for Belgian long-term residence. If a “long stay” D visa application must be filed, the contribution fee comes on top of the visa application fee (see below). The contribution fee for first applications for employees is €144. The contribution fee for those who are self-employed with a professional card is €229. Family members who are 18 years or older, applying for a D visa under family reunification, must also pay a contribution fee of €206.

Work authorization is issued without cost. Administrative fees for a professional card amount to €90 per year of validity.

Upon approval of the work authorization or the professional card, a D visa for Belgium is required. In principle, a D visa application fee (equivalent in local currency to €180; i.e., at present $196 USD) will have to be paid by the D visa applicant to the Belgian embassy/consulate general in the home country. The exact amount can be checked on the website of the Belgian embassy/consulate general in the home country.

Upon arrival in Belgium, a Belgian residence permit must be applied for. The administrative fees for residence permits in Belgium range between 50€ and 250€. The fees depend on the municipality of residence and on the process for the physical issuing of the Belgian residence permit (standard or urgent processing).

Italy

Below is an overview of the most common immigration-related government fees:

  • Work permit application: 2 government stamps of €16: total €32
  • Family clearance application: 2 government stamps of €16: total €32
  • D type visa application: €116,00, to be paid at the consulate in local currency
  • Residence permit: 1 government stamp €16; + RP filing fee (from €40 to €100) + RP card printing fee €30.46 + 2; + post office managing fee €30. Total from €118.46 to €178.46
  • Identity Card application: €22 (approx.)

Türkiye

Türkiye’s immigration government fees have not increased in the past several years in terms of euros/USD. This is the case even though inflation has been quite high, so fees from a Turkish lira perspective have risen. For example:

  • A one-year work permit government fee is a bit over €200, and about €400 for a two-year work permit.
  • Residence permit fees are approximately €100 for one year, and approximately €150 for two years (with a complicated matrix to calculate government fees that depends on nationality and validity length).

For residence permit applications, the government fee may pale in comparison to the cost for the notarization, translation, and legalization of several biographical documents. Given the high amount of government staff time needed to adjudicate a residence permit application and the high rate of denial of short term residence permits (not the case for dependent residence permits), it is surprising that the filing fees have not increased more from a euro/USD perspective.

United Kingdom

The United Kingdom’s (UK) immigration fees have risen significantly over the past 20 years and are now some of the highest in the world. Immigration fees generated revenue of more than £2.1billion in 2022-23. The UK Home Office generates a profit on the fees it charges and uses this to subsidise UK border security and enforcement operations. The latest rise in October 2023 increased application fees by a further 15 to 20 percent on average, and the Immigration Health Surcharge increased in February 2024 by 66 percent to £1035 payable for each year of a person’s visa.

Total fees payable to the UK government for a five-year visa for a Skilled Worker working for a large employer plus a family of three dependents are now more than £29,000. Combined with the major increases in the general minimum annual salary threshold for Skilled Workers (from £26,200 to £38,700) and to the “going rates” for specific occupations that must be paid to Skilled Workers in April 2024, these costs are acting as a major disincentive to recruit overseas workers, particularly in sectors that pay lower wages, in the regions outside London and the South East of England, where wages are typically lower and for businesses that hire graduates and younger workers at early stages in their careers.

The fee and minimum salary increases are a direct attempt by the UK to dampen demand for overseas workers in the face of the UK’s highest ever recorded net migration figures in 2022 (745,000) and high figures in 2023 (683,000), and in the run-up to the 2024 UK General Election, where migration was seen as a key policy issue.

Back to Top

2. COLOMBIA

This article discusses visa options for retirees and “digital nomads” in Colombia.

Colombia: An Emerging Haven for Foreign Retirees

In recent years, Colombia has emerged as an attractive destination for foreign retirees, consistently ranking high in various international listings. The country’s appeal lies in its diverse climate, rich biodiversity, affordable cost of living, excellent culinary offerings, and vibrant cultural scene. Foreign retirees often highlight the warm and welcoming attitude of Colombians, which greatly facilitates their integration into local communities. Cities like Medellín, Cartagena, Santa Marta, and those in the coffee-growing region are particularly popular among this demographic.

Visa Options for Retirees

Colombia offers a specific migrant visa category for retirees, outlined in its current immigration regulations. This visa is available to foreigners with a steady monthly income from a pension granted by a government or private pension fund. The visa is valid for up to three years, can be renewed indefinitely, and allows multiple entries into the country. Retirees who have held this visa continuously for at least five years are eligible to apply for a permanent resident permit.

Requirements for the Retiree Visa

To obtain the retiree visa, applicants must provide:

  1. Pension Certification: Proof of a monthly pension payment of at least $1,000 USD.
  2. Police Clearance: A document confirming the applicant has no criminal record duly apostilled and sworn (translated).
  3. Medical Certificate: This document can be issued from a doctor abroad and must come apostilled and sworn (translated if needed) or issued in Colombia.
  4. International Medical Insurance: Confirmation of coverage within the national territory against all risks in case of accident, illness, maternity, disability, hospitalization, death, or repatriation, for the duration of stay in Colombia.

Colombia’s unique blend of natural beauty, cultural richness, and welcoming atmosphere makes it an ideal retirement destination for some retirees. The retiree visa facilitates a smooth transition for foreigners looking to make Colombia their new home, offering benefits such as long-term stay options and the potential for permanent residence.

Digital Nomads in Colombia

The Ministry of Foreign Affairs issued Resolution 5477 on July 22, 2022, which established new provisions on types of visas, application processes, and issuance, among others. One of the main changes to the Colombian immigration regime introduced by Resolution 5477 is the inclusion of the Visitor Visa for Digital Nomads. Since October 21, 2022, the date on which the new immigration regime entered into force, foreigners, whether independently or labor-related, who wish to enter to provide remote work or teleworking services from Colombia through digital media and internet exclusively for foreign companies, or to start a digital content or information technology venture of interest to the country, may request and obtain a Visitor Visa for Digital Nomads at a Colombian consulate abroad or directly at the Ministry of Foreign Affairs.

Among other requirements, the applicant must demonstrate through bank statements a minimum income equivalent to minimum monthly wages (approximately $1,220 USD) during the last three months, and health insurance with coverage in Colombia against all risks in case of accident, illness, maternity, disability, hospitalization, death, or repatriation, for the planned duration of stay in Colombia.

This multiple-entry visa is valid for up to two years. The authorized period of stay is the same time for which it is granted. It allows beneficiary visas for the spouse, permanent partner, and children of the holder. The holder of this visa may not work or carry out any paid activity with a natural or legal person in Colombia. According to Resolution 5477, this visa is apparently only applicable to those foreigners who are exempt from short-stay visas to enter Colombia, such as those listed in Resolution 5488 of 2022.

Similarly, nationals of countries that do not require a short-stay visa may enter without a visa and remain in Colombia with an entry and stay permit granted by Migración Colombia. With this permit, Digital Nomads can stay in the territory for up to 90 days (continuous or discontinuous), extendable for another 90 days as long as the activities they carry out do not generate payments from Colombian companies. Despite the above, it is not certain whether this type of activity can be carried out with a tourist permit (PT), integration and development permit (PID), or permit for other activities (POA), since those currently do not specifically allow this type of activity. Thus, authorization by the competent authorities must be obtained before carrying out digital nomad activities with the aforementioned permits. Possibly a new permit will be created that explicitly authorizes the execution of this type of activity.

Back to Top

3. EUROPEAN UNION

The Council of the European Union has extended temporary protection for Ukrainian refugees until March 2026.

In a press release on June 25, 2024, the Council of the European Union announced its decision to extend until March 4, 2026, temporary protection for Ukrainian refugees fleeing from Russia’s war with Ukraine.

The temporary protection mechanism was initially triggered on March 4, 2022. The latest extension does not change the categories of persons covered by temporary protection.

This move by the Council aims to provide continued support and stability for Ukrainians who have sought refuge in Europe amid the ongoing conflict in their home country.

For further information, see https://www.consilium.europa.eu/en/press/press-releases/2024/06/25/ukrainian-refugees-council-extends-temporary-protection-until-march-2026/

Back to Top

4. ITALY

Italy has amended its immigration law to provide quota-free entry for foreign workers. Also, under new EU Blue Card implementing guidelines, Italy has expanded acceptable documentation of validation of university diplomas.

Quota-Free Entry for Workers

A recent amendment to the Italian Immigration Law (Testo Unico dell’Immigrazione), introduced in 2023, represents a significant innovation for the entry of foreign workers through a non-quota entry route.

The new provisions allow foreign workers who have completed professional and civic-linguistic training programs approved by the Ministry of Labor and Social Policies to enter Italy and be employed at any time of the year without being subject to the limitations of entry quotas set by the flow decrees (decreti flussi).

To benefit from this opportunity, workers must have completed training programs in Professional Training (to acquire the technical skills needed to perform specific job roles required by Italian companies) and Civic-Linguistic Training (Italian language learning and civic training to facilitate the worker’s integration into Italian society).

The procedure for bringing in and employing foreign-trained workers includes:

  • Identification of Programs: Companies must identify and collaborate with approved training programs.
  • Entry Application: Employers can submit an application for the entry of the foreign-trained worker at any time during the year.
  • Evaluation and Authorization: Competent authorities will evaluate the application and, if approved, authorize the worker’s entry into Italy.

This new provision offers several advantages to Italian companies:

  • Flexibility: Companies can quickly respond to labor needs without waiting for annual flow decrees.
  • Competitiveness: The new provision allows faster access to qualified workers and thus helps companies maintain and increase their market competitiveness.
  • Targeted Training: Workers who complete approved training programs are already prepared for the specific needs of Italian companies.

Only programs officially recognized by the Ministry qualify workers for the “quota-free” entry. For more details, see the list of approved programs and countries involved in the project here.

EU Blue Card in Italy: Validation of a University Diploma

According to the new European Union (EU) Blue Card implementing guidelines, Italian authorities are now accepting the CIMEA (Information Centre on Academic Mobility and Equivalence) Statements of Comparability and Verification as an alternative to the Declaration of Value (Dichiarazione di valore) diploma validation.

The primary goal of CIMEA is to enhance academic mobility in all its forms. CIMEA aims to facilitate understanding of the Italian education system and foreign education and training systems, while promoting the principles of the Lisbon Recognition Convention on qualifications recognition. The website, available in English, provides useful information on the application process. By paying a reasonable fee, it is possible to have the statement issued in 60 days. To apply for CIMEA’s services, you will be asked to upload scanned copies of your documents (e.g., diplomas, transcripts) to the dedicated platform. The website guides the user through the submission process, provides a list of documents required for each country (and indicates if translation is required), and generally helps in navigating the overall process with clear guidelines.

Applicants should be aware, however, that local offices are implementing the new guidelines slowly and that the EU Blue card online application form has not yet been updated by the government. Before going for the CIMEA validation, it is advisable to ask the relevant immigration office whether they accept it in place of the Dichiarazione di valore at this stage.

Back to Top

5. UNITED KINGDOM

There have been developments related to right-to-work checks and the transition to eVisas.

Right-to-Work Checks on BRPs Short-Dated to 31 December 2024

There is an ongoing Home Office transition to eVisas, which means that people with a physical immigration document such as a Biometric Residence Permit (BRP) must apply for an eVisa before the end of 2024. Anyone with a BRP having an expiration date of 31 December 2024 whose UK visa is valid beyond that date will need to apply. BRP holders will need to register for a UK Visas and Immigration (UKVI) account. The eVisa is the online record of the immigration status contained in the UKVI account.

In relation to right-to-work checks on employees with a BRP short-dated to 31 December 2024, the new guidance confirms the following:

  • Online check. Where an employer has carried out an online right-to-work check on a BRP, they will have seen the expiration date of the visa itself, rather than the short-dated 31 December 2024 BRP expiration date. In this situation, no immediate action is required. The usual repeat check can be made before the visa expires.
  • Manual original document check. Before April 6, 2022, employers could carry out a manual right-to-work check on an original BRP. Where the employer has carried out such a check and recorded 31 December 2024 as the right-to-work expiration date, the guidance says that a “follow-up check”—an online right-to-work check—will be required before the end of the year.

Repeat Right-to-Work Checks Not Required on Employees With Pre-Settled Status

A 2023 High Court judgment covered issues relating to EU citizens who have applied for the EU Settlement Scheme for pre-settled status (when they have not yet lived in the UK for five years) or settled status (when they have been living in the UK for five years). The judgment established that, in accordance with the Withdrawal Agreement when the UK left the EU, pre-settled status holders do not lose their right to residency if they fail to make a settled status application before the expiration of their pre-settled status.

As a result of the judgment, the Home Office guidance on right-to-work checks was finally updated as follows:

  • No right-to-work expiration date for holders of pre-settled status. Employees with pre-settled status are no longer considered to have an expiration date for their right to work.
  • No repeat right-to-work checks. Employers do not need to carry out a repeat right-to-work check on employees with pre-settled status. This puts them in the same position as employees with settled status and means employers only need to check the employee’s right to work once—before the employment starts.

Back to Top

5. New Publications and Items of Interest

The Cornell International Law Journal will host “The (Im)possibility of Immigration Reform?,” a symposium celebrating the career of Stephen Yale-Loehr and his contributions to the field of immigration law. The symposium will be held at Cornell Law School on November 8, 2024, from 9:30 a.m. to 4 p.m., followed by a reception. Register to attend the symposium in person, or if you are unable to attend in person, there is a webinar option.

Alliance of Business Immigration Lawyers:

Back to Top

ABIL Member / Firm News

ABIL Members and lawyers who are on the American Immigration Lawyers Association’s National Committees include:

USCIS Benefits & Policy Committee: Vincent Lau (Vice Chair), Vic Goel, Ari Sauer

DOL Liaison Committee: Andrea-Li Wallace, Michele Madera

DOS Liaison Committee: Magaly Cheng, Elise Fialkowski, Elissa Taub

CBP National Liaison Committee: Janice Flynn

EOIR Committee: Dustin Baxter, Aaron Hall

USCIS Field Operations Committee: Charles Kuck, Johnna Main Bailey

EB-5 Committee: Kristal Ozmun

H-1B Taskforce: Dagmar Butte

Military Committee: Daniel Carpenter, Catherine Magennis

Verification & Compliance Committee: Timothy D’Arduini, Marketa Lindt, Matthew Webster

Benefits Litigation Committee: David Isaacson, Zachary New, John Pratt

Standing Committee on Political Engagement (SCOPE): William Stock

Business Section Steering Committee: Dagmar Butte, June Cheng, Nam Douglass, Christian Park

Family Section Steering Committee: Jorge Gavilanes

Federal Court Litigation Steering Committee: Zachary New

Global Migration Section Steering Committee: William Hummel (Immediate Past Chair)

Ethics Committee: Oxana Bowman

Pro Bono Committee: Vikram Akula

Media Advocacy Committee: Elissa Taub

High Impact Adjudications Assistance Committee: Adam Cohen

Client Resources Committee: Meghan Moody

Innovation and Technology Committee: Hannah Little (Vice Chair), Vic Goel

Technology Advisory Group: Julie Pearl

Well-Being Committee: Jennifer Howard

Board Member Emeritus: Charles Foster

Annual Conference 2024 Planning Committee: Jason Susser

Mid-Winter Conference Planning Committee: Elissa Taub

Innovation and Technology Summit Planning Committee: Julie Pearl

AILA Law Journal: Cyrus Mehta (Editor-in-Chief), Kaitlyn Box (Editorial Board Member), Dagmar Butte (Editorial Board Member)

2024-2025 AILA Online Course Review Committee: Avalyn Langemeier (Vice Chair)

Mid-South Chapter Chair: Jason Susser

Dagmar Butte was quoted by Forbes in O-1A Visas, National Interest Waivers Rise After Immigration Guidance. She said she was not surprised that the approval rate for national interest waivers declined. “I think while the category has been broadened, Matter of Dhanasar still rules the day, so for me, every case has to pass that test before I’ll file it.” Ms. Butte referenced the Administrative Appeals Office decision Matter of Dhanasar (December 27, 2016), which established a three-factor test for national interest waivers.

Klasko Immigration Law Partners, LLP (KILP) is celebrating its 20th anniversary since its formation as a firm in 2004. Since its inception, KILP has grown from four partners to nine, from 30 employees to more than 110, from offices in two cities to offices in three cities with employees in 19 states. Over the last 20 years, KILP attorneys and the firm have been recognized by various publications, such as Chambers and Partners, U.S. News & World Report’s Best Lawyers in America©, Best Law Firms in America©, and Best Companies to Work For; EB5 Investors magazine; Human Resources Executive magazine; Lawdragon; and Lexology.

Klasko Immigration Law Partners, LLP, published a client alert, What You Need to Know About President Biden’s New Immigration Actions.

Klasko Immigration Law Partners, LLP, published a blog post: Canada is Implementing New Immigration Strategies to Reduce the Number of Temporary Residents by 2027.

Charles Kuck was quoted by Law360 in Expired Diversity Visas Can’t Be Processed, DC Circ. Says. The article discusses a decision by the U.S. Court of Appeals for the District of Columbia on June 25, 2024, that reversed several lower court orders requiring the Department of State to process applications for diversity visas for fiscal years 2020 and 2021 after the deadline. Mr. Kuck, representing the plaintiffs in an appeal, told Law360 the legal team is disappointed by the decisions, “especially that it took more than 21 months for a resolution that protects the unconscionable efforts of the Department of State to intentionally deprive our clients of this opportunity to become permanent residents of the United States. Shame on the Biden administration for appealing this case.”

Cyrus Mehta and Kaitlyn Box co-authored a blog post: SEC v. Jarkesy and Loper Bright v. Raimondo: How the Supreme Court’s Dismantling of the Administrative State Impacts Immigration Law.

Mr. Mehta and Jessica Paszko authored a blog post: Does the Signing of the I-485 Supplement J by a New Employer Constitute Visa Sponsorship?

Mr. Mehta authored several blog posts: The Uncertain Path of the D-3 Waiver for DACA Recipients Under Biden’s New Immigration Initiative and Granting Deferred Action to Aging Out Children in Lawful Status Is Preferable to Having them Start All Over Again.

Mr. Mehta, Stephen Yale-Loehr, and several others co-authored a blog post, Think Immigration: Chevron Is Dead! Thoughts on the Immigration Impact of Loper Bright Enterprises, for the American Immigration Lawyers Association.

Mr. Mehta, Greg Siskind of Siskind Susser PC, and William Stock were quoted by Law360 in Immigration Attys Cautiously Optimistic After Chevron Ruling [available by registration]. Among other things, Mr. Mehta said, “I think [what constitutes a particular social group under asylum law is] basically up for challenge” in the wake of the Loper Bright Supreme Court decision, which upended the Chevron defense. Mr. Siskind said, “There is already discussion happening over rules that are decades old getting a fresh look. It’s going to be a very tumultuous period in the next few years and Congress needs to finally get back to managing immigration policy as the Constitution intended.” Mr. Stock said, “Even in circuits which tend to be reluctant to overturn removal orders, you’ll at least have them having to grapple with whether the [Board of Immigration Appeals’] decision is legally correct.”

Mr. Mehta was quoted by Bloomberg Law in Immigration Proponents Get Boost From End to Chevron Doctrine. Having Chevron off the table could help pro-immigrant plaintiffs suing over a regulatory rescission of those programs because the executive wouldn’t be entitled to deference without a reasoned analysis of those decisions, he said: “That would give a better legal basis to challenges to regulations that are restrictive.”

Mr. Mehta was quoted by the Times of India in America’s SC: Courts Need Not Defer to Federal Agency Decisions—It’s a Mixed Bag for the Indian Diaspora. He said, “Without Chevron, federal courts will no longer pay deference to a government agency’s interpretation of a provision in the Immigration and Nationality Act (INA). Hence, employers may be able to find a court willing to give a more favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.” He added, “Similarly, the USCIS in recent years provided an interpretation to the ‘extraordinary ability’ or ‘outstanding researcher’ categories in employment-based first preference petitions that was difficult to meet. Removing deference to these interpretations will more likely result in successful challenges to these denials in federal court. The USCIS will be held to the strict language of the statute and its expansive interpretation of the statute may no longer be allowed to stand.” He also noted, “Even if Chevron no longer helps, there is also a clear authorization in the INA for the USCIS to issue work authorization to noncitizens and to set time and other conditions for nonimmigrants under the INA without having to rely on an expansive interpretation of the statute to issue such benefits.”

Mr. Mehta was quoted extensively by Forbes in DHS, USCIS Urged to Protect Green Card Applicants and Their Children. The article notes that a new letter by a bipartisan group of lawmakers in Congress urges the Biden administration to take action to protect the children of green card applicants and proposes several policy changes. Mr. Mehta said, among other things, that the administrative proposals in the letter “are both interesting and intriguing as they may only give a temporary benefit to the child who has aged out with no pathway to permanent residence. Still, until Congress provides a legislative solution, these proposals, especially the first and second, would be an interim solution.” The article notes that Mr. Mehta favors advancing the Dates of Filing in the Department of State’s Visa Bulletin as much as possible to allow those waiting in employment-based green card categories to file I-485 applications for adjustment of status.

Mr. Mehta, Mr. Yale-Loehr, and William Stock were quoted by Law360 in Justices’ SEC Ruling Unlikely to Bear on Immigration Actions (available by registration). Commenting on the Supreme Court’s ruling, Mr. Mehta noted that it meant that immigration cases won’t require a jury trial. He said that if a case were “before an administrative law judge or before an immigration court, I don’t think Jarkesy impacts immigration hearings based on this decision.” Mr. Stock said the impact of Jarkesy on immigration would be negligible. With respect to immigrants, “you don’t have any rights unless Congress gives them to you, full stop,” he said, noting a possible exception for cases involving fines related to behavior between two private parties. Mr. Yale-Loehr said, “Justice Roberts noted several categories of cases concerning public rights, including immigration law. In such cases, agency penalties do not require a jury trial.”

John Pratt was elected to the Board of Directors of Invest in the USA (IIUSA), the largest EB-5 trade organization in the United States. Founded in 2005, IIUSA is the national membership-based 501(c)(6) not-for-profit industry trade association for the EB-5 Regional Center Program. To date, IIUSA represents 200+ Regional Center members and 120+ Service Provider members across the country serving 47 states/territories. IIUSA said its work has “empowered our members to create tens of thousands of jobs in a wide range of industries and American communities,” generating more than $32 billion in foreign direct investment. Through dedicated advocacy work, education, industry development, and research, IIUSA advocates for policies that maximize economic benefit to the United States. “Our primary mission is to achieve the permanent Congressional reauthorization of the EB-5 Regional Center Program after over 30 years of enthusiastic bipartisan support and record-breaking economic impact,” IIUSA said.

Greg Siskind of Siskind Susser PC authored a column on mastermind groups that was published by the American Bar Association (available by registration).

Mr. Siskind was quoted by Reason in Why the End of Chevron Could Be a Win for Immigrants. He said, “Congress has passed almost no immigration legislation in the past 20 years,” but “presidents still have to administer the immigration system even as the legislation becomes more and more out of date.” In practice, he explained, that means presidents have “gotten more and more creative in interpreting existing statute language to achieve their policy objectives in the absence of Congress playing a role.” He noted that presidents “have issued an assortment of administrative rules and policies to implement those policies.” Mr. Siskind said that agencies “will still be able to defend interpretations of ambiguous statutes, but they will need to provide a lot more evidence that their interpretation is consistent with the statute and a judge will have a lot more authority to disagree and impose his or her own view of what that statute means. So I expect both pro-immigration and anti-immigration plaintiffs to attack a variety of policies and for the courts to play a much bigger role in setting immigration policies for the country.”

Mr. Siskind was awarded the inaugural Technology & Innovation Award by the American Immigration Lawyers Association (AILA) “in acknowledgment of his pioneering work leveraging technology to streamline processes, increase efficiency, and improve client service.” AILA said that Mr. Siskind “has led in the area of immigration law and technology for years – his history as a website pioneer, early internet marketer, co-founder of IMMPact Litigation, and more. But most recently he has truly made astonishing strides. As a co-founder of Visalaw.ai, he harnessed his vision and commitment to building a generative AI product specifically for immigration lawyers.” AILA also noted that “Mr. Siskind helps others develop their own abilities and knowledge on how technology might help them in their practices. He appears in countless webinars, roundtables, innovation focus groups, chapter seminars, and national conferences. He also prepares and produces an annual survey of immigration case management software, then works with AILA to publish it for members.” Through his work, AILA said, Mr. Siskind “has inspired a generation of immigration lawyers to embrace technology and innovation in their practices.”

Jason Susser of Siskind Susser PC was quoted extensively by Forbes in USCIS Seeks to Boost Immigration Policy for Entrepreneurs (available via subscription). The article explains that Mr. Susser obtained approval for a client in the United States under the International Entrepreneur Rule, but the process took a long time, and the client returned to Canada and now runs a business there. “She was a graduate student and built a nice company. It took so long to get approved, and Canada has some major tax credits for startup [research and development] salaries that she told me she probably will not use the parole under the International Entrepreneur Rule after waiting two years and will remain in Canada.” The article notes that Mr. Susser said his client raised more than $1 million after completing her MBA at Stanford. Nine months passed after submitting the application before receiving a Request for Evidence from USCIS. “The first red flag was that the RFE came from the Immigrant Investor Program office, which are the officers who deal with EB-5 applications, and that program is notoriously slow. Then the RFE did not ask about the client but instead entirely focused on whether the U.S. investor is a ‘qualified investor.’ Even there, the big hang-up with the investor was not whether he had invested, but instead whether his investments in other companies had led to the required growth.” He said, “They were asking for documents of the U.S. investor’s other portfolio companies, which were unrelated to the case. Even though the investors we were working with were very supportive, they couldn’t go to companies they have invested in and ask for their employees’ I-9s, taxes and other private information to give to another company for an immigration case.” The case was approved after about two years, the article notes, but by that time, the client had decided to remain in Canada.

Mr. Yale-Loehr was quoted by the Boston Globe in ‘Czar’ or Not, Harris Bungled Immigration. He said that “it’s difficult to figure out what can be accomplished in a short period of time. I think she started the groundwork” to address the root causes of migration from Central America to the United States.

Mr. Yale-Loehr was quoted by the Chicago Sun-Times in Immigration Advocates in Chicago “Disappointed and Angry” Over Lack of Reforms, Plan DNC Protests. “I think there will be a lively debate at the Democratic National Convention in Chicago about immigration,” he said. “The Biden administration has done a lot, but really Congress needs to step up the plate to enact immigration reform to once and for all cure our broken immigration system.”

Mr. Yale-Loehr was quoted by Syracuse.com in Ecuadoran Accused of Killing Woman in Syracuse Was Waiting in U.S. for Immigration Hearing (available by subscription). He discussed what happens when a person crosses the border, with the overarching question of whether a person will be released into the United States or sent back. He noted that those requesting asylum will be asked whether they have a credible fear of persecution in their home country. If the answer is yes and the person provides an answer that doesn’t seem “frivolous,” they are let go with a court date and can remain in the United States while their asylum application is pending. Later they need to appear in immigration court and convince an immigration judge that their fear is based on one of the asylum grounds to remain in the United States, Mr. Yale-Loehr explained. In the case discussed in the article, the man accused of the murder, if convicted, is likely to serve a long sentence and be deported after completing it. “It’s clear that now he has come to the attention of the immigration authorities. No matter what happens with the criminal trial, he’s got immigration issues he’s going to have to deal with.”

Mr. Yale-Loehr was quoted by Univision in The Debate on Biden and Trump Immigration Policies: Exaggerations and Lack of Proposals (in Spanish with English translation available). He said, “Biden favors legal immigration; Trump wants to deport the country’s 11 million undocumented immigrants. They both want to control our borders, but Trump is willing to go further than Biden to close the border.” Mr. Yale-Loehr specified that “no matter who wins the White House, they will inherit a failed immigration system. There is a lot a president can do to improve immigration policies through executive actions. Ultimately, Congress needs to enact immigration reform. That may be easier or more difficult depending on which party wins the House of Representatives and the Senate.”

Mr. Yale-Loehr was quoted by the Verge in What Scotus Just Did to Broadband, the Right to Repair, the Environment, and More. He said, “In the past, employers have had a hard time overturning narrow interpretations of H-1B issues because of Chevron deference. Now, however, people who feel that the agency is too stingy in its interpretation of various visa categories may be more likely to seek court review.” The article notes that “[t]he effects of this patchwork system will not be felt immediately, nor will they be felt evenly.” Mr. Yale-Loehr said, “A lot needs to be worked out, and it will be confusing and complicated for several years.”

Mr. Yale-Loehr was quoted by Univision in Debate: Biden and Trump’s Immigration Policies Clash on Everything and Agree on Nothing (in Spanish with English translation available). He said, “Biden favors legal immigration; Trump wants to deport the country’s 11 million undocumented immigrants. They both want to control our borders, but Trump is willing to go further than Biden to close the border.” He noted that “no matter who wins the White House, they will inherit a failed immigration system.” Mr. Yale-Loehr noted that “[t]here is a lot a president can do to improve immigration policies through executive actions. Ultimately, Congress needs to enact immigration reform. That may be easier or more difficult depending on which party wins the House of Representatives and the Senate.”

Mr. Yale-Loehr was quoted by Newsday in Migrant Crisis: Hope and Uncertainty for Ecuadorian Man Returning to New York City (available by subscription). Mr. Yale-Loehr observed that President Biden toughened asylum restrictions on June 4, 2024, but “Julio [Zambrano] came in before these recent changes, so it doesn’t affect him.” Lawyers are critical in asylum and other immigration hearings, he said. “If he has an attorney, his chances of winning are going to be much higher than if he tries to do it on his own. Which judge Mr. Zambrano ends up getting also can make a huge difference, Mr. Yale-Loehr said. “Some judges in New York are pretty lenient on asylum cases, and others are very tough. As one person called it, it’s refugee roulette.”

Mr. Yale-Loehr was quoted by the New York Times in Small Step Could Bring Big Relief to Young Undocumented Immigrants. The article discusses a measure announced by the Biden administration on June 18, 2024, that will enable certain Deferred Action for Childhood Arrivals (DACA) beneficiaries to receive employer-sponsored work visas and become eligible to apply through their employers for permanent residence. “It is a small step within a complex immigration system that can smooth the way for many individuals to get a work visa more quickly,” Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by Forbes in DACA Recipients Could Gain H-1B Visas Under New Immigration Policy. He said, “The parole in place provisions for undocumented spouses of U.S. citizens will get more press attention, but the other administrative action may be just as important. Employers have been reluctant to use the D-3 waiver because the process was slow and unclear. New State Department guidance is expected to make D-3 waivers more predictable and faster. In this tight labor market, that will be great news for employers.”

Mr. Yale-Loehr was quoted by Newsweek in Joe Biden Embraced Trump’s Border Tactics. It Doesn’t Seem to Be Working. He said, “There is only so much any president can do to manage border flows. People flee their homes for many reasons, including persecution, war, climate change, and poverty. A presidential proclamation isn’t going to stop that.” Mr. Yale-Loehr said that only “a multipronged approach can manage migration effectively. Such an approach would include working with regional partners, establishing safe mobility offices to educate people about their visa options before they leave home, and increasing foreign aid to improve economies so people don’t need to leave home to survive. The Biden administration is trying all these actions. It will just take time to see any meaningful results.”

Mr. Yale-Loehr was awarded the Robert Juceam Founders Award by the American Immigration Lawyers Association (AILA). The award is given to “the person or entity having the most substantial impact on the field of immigration law or policy.” AILA said that Mr. Yale-Loehr “has been a giant in the immigration legal community for decades. Not only has he had an immense impact on the students he teaches at Cornell Law School, [but] he has written a casebook on immigration law, and edited numerous immigration publications” that reach far beyond the classroom. AILA noted that Mr. Yale-Loehr has served on AILA’s National Asylum and Refugee Committee and contributed to many other national committees. He also shares key insights with the media through regular outreach to reporters and has served as a resource. Mr. Yale-Loehr has practiced immigration law for more than 35 years. “He also teaches immigration and asylum law at Cornell Law School as Professor of Immigration Practice and is of counsel at Miller Mayer in Ithaca, New York. He also founded and was the original executive director of Invest In the USA, a trade association of EB-5 immigrant investor regional centers,” AILA said. Mr. Yale-Loehr is a founding member of the Alliance of Business Immigration Lawyers. He was the “2001 recipient of AILA’s Elmer Fried Award for excellence in teaching and the 2004 recipient of AILA’s Edith Lowenstein Award for excellence in advancing the practice of immigration law. He is also a Fellow of the American Bar Foundation and a non-resident fellow at the Migration Policy Institute.” AILA said Mr. Yale-Loehr has also “mentored hundreds of law students and immigration lawyers” and “embodies the best of scholarship, practice, and teaching.”

Mr. Yale-Loehr was quoted by the Associated Press in The ACLU is Making Plans to Fight Trump’s Promises of Immigrant Raids and Mass Deportations. He said, “The second Trump administration, if there is one, will be better prepared” to overcome lawsuits than the first one was. He noted that the first Trump administration often saw its policies halted by rulemaking and procedural mistakes that it could fix this time around. For example, it could use past legal decisions to find workarounds. “Both sides have seen the litigation battles, and seen how the courts have ruled,” Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by Law360 in Exceptions May Help New Border Rules Survive Litigation (available by registration). He said that a new Biden administration policy, similar to Trump administration travel bans, to restrict entry if unauthorized border crossings exceed a limit—set forth in a presidential proclamation and an interim final rule—will be “a close call if it goes to the Supreme Court. The Biden administration will say that this too has certain exceptions, and it is temporary, and therefore it’s within the zone of deference that should be accorded to the president under [INA §] 212(f). I’m sure the ACLU and others will argue that that is a direct conflict. And therefore, even under Trump v. Hawaii, this new presidential proclamation and executive order are illegal or violate the law.”

Mr. Yale-Loehr was quoted in several news articles about President Biden’s immigration actions, including the Los Angeles Times, Vox, Newsday, Scripps News Service, and Yahoo. For example, in Biden’s Sweeping New Asylum Restrictions, Explained (Vox), Mr. Yale-Loehr said, “Immigrant advocates will say the asylum provision explicitly allows people to apply for asylum even if they enter between ports of entry, and therefore to suspend entry because too many people are entering between ports of entry violates an express provision of the immigration law. Courts will have to decide how much deference to give President Biden and whether his lawyers have crafted the executive order carefully enough.”

Mr. Yale-Loehr was quoted by the Voice of America in On Immigration Reform, U.S. Has Accomplished Next to Nothing in Decades. He said that “immigration reform has always been hard to get through Congress. … Donald Trump wants to make immigration one of his key pillars of his campaign. So he basically killed the efforts in the Senate and the House earlier this year.” According to Mr. Yale-Loehr, there is no possibility of immigration reform legislation until 2025. “And even then, it will depend on who is the president and who controls the House and the Senate.” He said that he does not expect reform any time soon. “We have a broken immigration system. Courts have said that immigration law is as complex as our tax law. And just as it seems impossible for Congress to overhaul our tax system, I don’t think any Congress is likely to be successful in trying to reform all of our broken immigration system. … But there are bits and pieces that Congress could pass as sort of a down payment,” he said.

Mr. Yale-Loehr was quoted by Law360 in Migrant Influx Fuels Push for Right to Immigration Counsel. He said that reforming the immigration system and expanding access to counsel should both happen simultaneously: “We need to do both. We have a broken immigration system, and we do need to overhaul it. But whether we overhaul it or are stuck with the existing system a while longer, we need more immigration lawyers and other navigators to assist immigrants in immigration proceedings.”

WR Immigration published a blog post: Corporate & Counsel Interlude: Employer Impact Statement on Parole and DACA/Dreamer Executive Order.

Back to Top