In this issue:

1. FY 2026 H-1B Initial Registration Selection Process Completed – U.S. Citizenship and Immigration Services has received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year 2026 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap).

2. USCIS Announces Work Permit Procedures for Certain Hong Kong Residents Covered by Deferred Enforced Departure – U.S. Citizenship and Immigration Services announced procedures for certain Hong Kong residents covered by Deferred Enforced Departure to apply for Employment Authorization Documents valid through February 5, 2027.

3. E-Verify Makes ‘Minor Changes’ to Form I-9 – E-Verify announced that U.S. Citizenship and Immigration Services has made “minor” changes to Form I-9, Employment Eligibility Verification, to align with statutory language, and the Department of Homeland Security Privacy Notice has been updated.

4. Venezuela TPS Remains in Effect Following Court Order – Temporary Protected Status for Venezuela will remain in effect and the validity of work permits issued under the Venezuela TPS designations is extended through April 2, 2026, “pending further litigation.”

5. USCIS Updates Policy to Recognize Only Two Sexes: Male and Female – U.S. Citizenship and Immigration Services said that “if a benefit requestor does not indicate his or her sex or indicates a sex different from the sex on his or her birth certificate issued at the time of birth (or issued nearest to the time of birth), there may be delays in adjudication.”

6. Scrutiny of Visa Applicants, Green Card Holders, Students, Exchange Visitors Heightened Under Trump Administration – The Trump administration is increasingly scrutinizing visa applicants and even permanent residents (green card holders) and has placed a “temporary pause” on certain green card applications “to do more vetting.”

7. ABIL: Tips for International Travelers Entering the United States – Travel to the United States has gotten trickier in recent months. This article summarizes tips recommended by the Alliance of Business Immigration Lawyers for international travelers to the United States.

8. USCIS Reaches H-2B Cap for Second Half of FY 2025; Filing Dates Now Available for Supplemental Visas – U.S. Citizenship and Immigration Services has received enough petitions to meet the H-2B statutory cap for the second half of fiscal year 2025. Also, the filing dates for supplemental H-2B visas for the remainder of this fiscal year are now available.

9. DOL Updates Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging – The Department of Labor’s Employment and Training Administration announced annual updates to allowable monetary charges that employers of H-2A workers, in occupations other than herding or production of livestock on the range, may charge workers when the employer provides three meals per day. The notice also announced the minimum and maximum amount of travel-related subsistence reimbursements required under the H-2A and H-2B programs, and reminded employers of their obligations for overnight lodging costs.

10. DHS Terminates Parole Programs for Cubans, Haitians, Nicaraguans, Venezuelans; Court Orders TPS for Venezuelans to Continue – The Department of Homeland Security (DHS) terminated parole programs for an estimated 530,000 Cubans, Haitians, Nicaraguans, and Venezuelans in the United States and their immediate family members. After a court order, DHS announced that Temporary Protected Status for Venezuela would remain in effect.

11. Lawsuit Challenges Trump Administration’s Use of 1798 Law to Justify Deportations of Venezuelans Without Due Process – The American Civil Liberties Union (ACLU), Democracy Forward, and the ACLU of the District of Columbia sued the Trump administration over President Trump’s “unlawful and unprecedented invocation” of the Alien Enemies Act of 1798, a wartime authority, to round up and deport Venezuelans from the United States without due process.

12. ICE Detains Tourists and U.S. Resident Foreign Nationals, Sparking Concern – U.S. Customs and Immigration Enforcement has stepped up detentions and deportations of foreign nationals entering the United States as tourists or permanent residents, leading to several countries issuing travel warnings.

13. Trump Administration Shuts Down Immigration Watchdog Offices – The Department of Homeland Security’s Citizenship and Immigration Services Ombudsman’s office has closed and its employees have been terminated, along with the offices of the Immigration Detention Ombudsman and Civil Rights and Civil Liberties.

14. U.S. Arrests and Detains Permanent Resident Protester, Raising First Amendment Concerns – The Trump administration has said it plans to expand arrests and deportations based on foreign policy grounds.

15. DOS Expands Foreign Affairs Functions Exempted From Public Notice Requirements; Significant Effects on Agency Rulemaking and Adjudications Likely – The declaration effectively constitutes an expansion to other federal agencies of the exemption of “foreign affairs” functions from Administrative Procedure Act requirements.

16. DHS Designates New Form for Registration and Fingerprinting – Following the Department of Homeland Security’s announcement that certain noncitizens in the United States must register and be fingerprinted, the agency released an interim final rule designating a new form for that purpose, effective April 11, 2025.

17. ICE Empties Guantanamo of Migrants; CBP Reduces Temporary Processing Facilities Along Southwest Border – U.S. Immigration and Customs Enforcement moved the last 40 migrants who had been detained at the U.S. Naval Base in Guantanamo Bay, Cuba, back to the United States.

18. April Visa Bulletin Announces Retrogression of China and India EB-5 Final Action Dates, Unavailability of EB-4 Immigrant Visas for Rest of Fiscal Year – The Department of State’s Visa Bulletin for April 2025 reports that increased demand and number use by China and India in the EB-5 unreserved immigrant investor green card category, combined with increased Rest of World demand and number use, has made it necessary to retrogress the final action dates.

19. DOS Resumes Processing of Following-to-Join Relatives of Refugees in United States – The annual limits will reset with the start of the new fiscal year on October 1, 2025.

20. CDC Removes COVID-19 Vaccination Requirement for Immigrant Visa Applicants – U.S. embassies and consulates will no longer refuse an immigrant visa application for failure to present documentation that the applicant received the COVID-19 vaccination.

21. OFLC Deletes Records From FLAG – Those with cases in the Foreign Labor Application Gateway system older than five years from the date of final determination should have downloaded them by March 19, 2025.

22. Trump Administration Plans to Restart and Expand Travel Bans – The travel ban would likely include Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen, along with Afghanistan, Pakistan, and possibly others.

23. USCIS Changes Many Forms With No Notice, Adds Grace Periods After Complaint Filed – U.S. Citizenship and Immigration Services (USCIS) posted changes to many forms with grace periods of up to one month, immediately following a complaint filed by the American Immigration Lawyers Association challenging USCIS’s publishing new editions of immigration forms with no notice and requiring their use with no grace period.

24. USCIS Plans to Require Applicants to Provide Access to Social Media Accounts – U.S. Citizenship and Immigration Services said there was a “need to collect social media identifiers (‘handles’) and associated social media platform names from applicants to enable and help inform identity verification, national security and public safety screening, and vetting, and related inspections.”

25. Trump Administration Fires EOIR Personnel and Immigration Judges While Backlogs Grow – The Trump administration has fired a number of Executive Office for Immigration Review staff and immigration judges (IJs), along with more than a dozen members of the Board of Immigration Appeals.

26. Annual Limit Reached in EB-4 Category – The annual limits will reset with the start of the new fiscal year on October 1, 2025.

27. President Trump Designates English as Official Language But Does Not Require Agencies to Delete or Stop Producing Materials in Other Languages – The order states that agency heads “are not required to amend, remove, or otherwise stop production of documents, products, or other services prepared or offered in languages other than English.”

28. Elon Musk Arrested on April 1 for Working Illegally in the United States – On April 1, 2025, as part of a crackdown on immigrant students for national security reasons, the Department of Homeland Security announced the arrest of Elon Musk for working illegally in the United States in the 1990s while he was in J-1 student status.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – April 2025

1. FY 2026 H-1B Initial Registration Selection Process Completed

U.S. Citizenship and Immigration Services (USCIS) announced on March 31, 2025, that it has received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year (FY) 2026 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap). USCIS said it has notified all prospective petitioners with selected beneficiaries that they are eligible to file an H-1B cap-subject petition for those beneficiaries.

An H-1B cap-subject petition must be properly filed at the correct filing location or online at my.uscis.gov and within the filing period indicated on the relevant selection notice, USCIS explained. Petitioners must include a copy of the applicable selection notice with the FY 2026 H-1B cap-subject petition. Petitioners must also submit evidence of the beneficiary’s valid passport or travel document used at the time of registration to identify the beneficiary.

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2. USCIS Announces Work Permit Procedures for Certain Hong Kong Residents Covered by Deferred Enforced Departure

On April 3, 2025, U.S. Citizenship and Immigration Services (USCIS) announced a Federal Register notice establishing procedures for certain Hong Kong residents covered by Deferred Enforced Departure (DED) to apply for Employment Authorization Documents (EADs) that will be valid through February 5, 2027.

The notice automatically extends through February 5, 2027, the validity of current Hong Kong DED-related EADs with an expiration date of February 5, 2023, or February 5, 2025, and a Category Code of A11. Employees may present this EAD as evidence of identity and employment authorization for purposes of Form I-9, Employment Eligibility Verification.

USCIS explained that since DED “is a directive to defer removal of an individual, rather than a specific immigration status like Temporary Protected Status, there is no DED application form required for an individual to be covered by DED. If an individual covered by DED wants to apply for an EAD, they must file Form I-765. Similarly, if an individual covered by DED wants to apply for advance travel authorization, they must file Form I-131.”

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3. E-Verify Makes ‘Minor Changes’ to Form I-9

On April 2, 2025, E-Verify announced that U.S. Citizenship and Immigration Services has made “minor” changes to Form I-9, Employment Eligibility Verification, to align with statutory language, and the Department of Homeland Security (DHS) Privacy Notice has been updated. The revised Form I-9 with an edition date of 01/20/25 and an expiration date of 05/31/2027 is available for download. Multiple previous editions remain valid until their respective expiration dates:

• Form I-9 (08/01/23 edition) is valid until 05/31/2027

• Form I-9 (08/01/23 edition) that is valid until 07/31/2026 (employers using this form must update their electronic systems with the 05/31/2027 expiration date by July 31, 2026)

Key updates include:

• Renaming the fourth checkbox in Section 1 to “An alien authorized to work” from “A noncitizen authorized to work”

• Revising the descriptions of two List B documents in the Lists of Acceptable Documents

• Adding statutory language and a revised DHS Privacy Notice to the instructions

E-Verify said that employers should note:

• If an employee attests on Form I-9 as “A noncitizen authorized to work,” the employer must select “An alien authorized to work” in E-Verify.

• E-Verify cases will display “An alien authorized to work,” while employees and employers may continue to see “A noncitizen authorized to work” on Form I-9, depending on the form edition being used.

• E-Verify+ participants will see the updated 01/20/25 edition date and 05/31/2027 expiration date reflected in Form I-9NG.

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4. Venezuela TPS Remains in Effect Following Court Order

On April 2, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that Temporary Protected Status (TPS) will remain in effect following a court order. On March 31, 2025, the United States District Court for the Northern District of California ordered postponement of the vacatur, published February 3, 2025, and of the termination, published February 5, 2025, of the 2023 TPS designation for Venezuela.

In light of the order, USCIS said that TPS for Venezuela will remain in effect until the Department of Homeland Security “obtains relief from that order.” Further, the validity of work permits with an expiration date of September 10, 2025; April 2, 2025; March 10, 2024; or September 9, 2022, issued under the Venezuela TPS designations is similarly extended through April 2, 2026, “pending further litigation.”

USCIS said that employers should refer to the TPS webpage regularly for updates.

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5. USCIS Updates Policy to Recognize Only Two Sexes: Male and Female

On April 2, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that under a Trump administration executive order, it has updated the USCIS Policy Manual to state that it only recognizes two biological sexes: male and female.

Under this guidance, USCIS considers a person’s sex as “that which is generally evidenced on the birth certificate issued at or nearest to the time of birth. If the birth certificate issued at or nearest to the time of birth indicates a sex other than male or female, USCIS will base the determination of sex on secondary evidence.”

USCIS said it will not deny benefits solely because the benefit requestor “did not properly indicate his or her sex.” However, USCIS noted that it “does not issue documents with a blank sex field,” so “if a benefit requestor does not indicate his or her sex or indicates a sex different from the sex on his or her birth certificate issued at the time of birth (or issued nearest to the time of birth), there may be delays in adjudication.”

USCIS said it “may provide notice to benefit requestors if it issues a USCIS document reflecting a sex different than that indicated by the benefit requestor on the request.”

This guidance applies to benefit requests pending or filed on or after April 2, 2025, USCIS said, adding that the guidance in the Policy Manual “is controlling and supersedes any related prior guidance.”

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6. Scrutiny of Visa Applicants, Green Card Holders, Students, Exchange Visitors Heightened Under Trump Administration

According to reports, the Trump administration is increasingly scrutinizing visa applicants and even permanent residents (green card holders) and has placed a “temporary pause” on certain green card applications “to do more vetting.”

As part of these activities, Secretary of State Marco Rubio recently sent a cable to some Department of State employees on enhanced screening and social media vetting of visa applicants. Among other things, the cable states that effective immediately, consular officers must refer new or returning student and exchange visitor (F, M, and J) visa applicants to the Fraud Prevention Unit (FPU) for a mandatory social media check if they meet certain criteria:

• An applicant who the officer has reason to believe has openly advocated for a designated foreign terrorist organization;
• An applicant who was previously in the United States in F-1, M-1, or J-1 visa status between October 7, 2023, and August 31, 2024;
• An applicant whose previous SEVIS record was terminated between October 7, 2023, and the present.

The cable states that evidence that an applicant:

…advocates for terrorist activity, or otherwise demonstrates a degree of public approval or public advocacy for terrorist activity or a terrorist organization, may be indicative of ineligibility. [This may be] evident in conduct that bears a hostile attitude toward U.S. citizens or U.S. culture (including government, institutions, or founding principles). Or it may be evident in advocacy or sympathy for foreign terrorist organizations. All of these matters may open lines of inquiry regarding the applicant’s credibility and purpose of travel.

The cable notes that a consular officer’s revocation of a visa “must be based on an actual finding that the individual is ineligible for the visa,” not merely on suspected ineligibility or based on derogatory information that is insufficient to support an ineligibility finding “other than a revocation based on driving under the influence.” If an officer suspects ineligibility, the post should refer the case for further review.

Some students on visas or even with green cards, have been detained and targeted for removal under INA § 237(a)(4)(C)(i), which authorizes the Secretary of State to “personally determine that [an] alien’s presence would compromise a compelling U.S. foreign policy interest” even if their statements, associations, and beliefs would be lawful.

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7. ABIL: Tips for International Travelers Entering the United States

Travel to the United States has gotten trickier in recent months. Below is a summary of tips recommended by the Alliance of Business Immigration Lawyers for international travelers to the United States:

• Make sure all of your documents are in order and have not expired, and that you do not have a renewal application pending. Consult with an immigration attorney before traveling for advice in specific situations.
• Consider not entering the United States now if your country is on a proposed “red” list of travel ban countries, which includes Afghanistan, Bhutan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen.
• Remember that U.S. Customs and Border Patrol officers have wide leeway at ports of entry to decide who enters and who does not, regardless of visa status, and to conduct electronic searches. They can require travelers to unlock cell phones, reveal laptop passwords, or give officers their digital cameras, for example. U.S. citizens and green card holders can refuse to answer questions (other than those establishing identity and status) and still enter the country (although this could lead to delays or seizure of devices), but those with visas do not have the same rights. The American Civil Liberties Union of Northern California advises not giving up your green card voluntarily. Some advise turning off phones and wiping data from all devices before passing through a port of entry.
• If your device is confiscated, request the name, badge number, and agency of the officer, and ask for a receipt or call the agency to request one.
• Keep your immigration attorney’s contact information handy, along with contact information for a local friend. If it appears that you might be going into secondary inspection, you can text your friend and ask them to get in touch with your immigration attorney.
• Keep in mind that in the past, rejected travelers were often put on the next plane out, but more recently, some have been detained for days, weeks, or more.
• Check your home country’s travel advisories and warnings before traveling. Consider deferring travel to or from the United States if not necessary.
• If you are referred to secondary inspection, request an interpreter if needed and available. There ordinarily will be a transcript (official record) of the questions and answers also.

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8. USCIS Reaches H-2B Cap for Second Half of FY 2025; Filing Dates Now Available for Supplemental Visas

On March 26, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to meet the H-2B statutory cap for the second half of fiscal year (FY) 2025. Also, the filing dates for supplemental H-2B visas for the remainder of FY 2025 are now available.

USCIS said that March 5, 2025, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2025, and before October 1, 2025.

A chart in Temporary Increase in H-2B Nonimmigrant Visas for FY 2025 includes information about the supplemental visas and relevant filing dates.

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9. DOL Updates Allowable Charges for Agricultural Workers’ Meals and for Travel Subsistence Reimbursement, Including Lodging

On March 24, 2025, the Department of Labor’s (DOL) Employment and Training Administration (ETA) announced annual updates to allowable monetary charges that employers of H-2A workers, in occupations other than herding or production of livestock on the range, may charge workers when the employer provides three meals per day. The notice also announced the minimum and maximum amount of travel-related subsistence reimbursements required under the H-2A and H-2B programs, and reminded employers of their obligations for overnight lodging costs as part of required subsistence and reasonable travel costs to and from a worksite.

The updated maximum allowable charge for meals is $16.28 per day, and an employer is not permitted to charge a worker more than that amount unless an Office of Foreign Labor Certifications Certifying Officer approves a higher charge.

The standard meals and incidental expenses (M&IE) rate for the continental United States (CONUS) is $68 per day for 2025. Workers who qualify for subsistence reimbursement are entitled to reimbursement for meals and lodging up to the standard CONUS M&IE rate when they provide receipts. In determining the appropriate amount of reimbursement for meals for less than a full day, the notice states, the employer may limit the meal expense reimbursement, with receipts, to 75 percent of the maximum reimbursement for meals, or $51, based on the General Services Administration per diem schedule.

The notice states that an employer is responsible for costs necessary for the worker to travel to the place of employment if the worker completes 50 percent of the work contract period. The employer also is responsible for the costs of return transportation.

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10. DHS Terminates Parole Programs for Cubans, Haitians, Nicaraguans, Venezuelans; Court Orders TPS for Venezuelans to Continue

The Department of Homeland Security (DHS) terminated parole programs for an estimated 530,000 Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV) in the United States and their immediate family members that DHS announced in 2022 and 2023. After a court order, DHS announced that Temporary Protected Status for Venezuela would remain in effect and the validity of work permits issued under the Venezuela TPS designations was extended through April 2, 2026, “pending further litigation.”

An advance copy of the notice set the date of termination of the CHNV programs as of the date of publication in the Federal Register, scheduled for March 25, 2025, and the date of the temporary parole period for eligible individuals at 30 days after publication. “Parolees without a lawful basis to remain in the United States following this termination of the CHNV parole programs must depart the United States before their parole termination date,” the notice states.

“Paroled aliens, including those paroled under the CHNV parole programs, may apply for any immigration benefit or status for which they may be eligible, including discretionary employment authorization under the [8 CFR 274a.12(c)(11)] employment eligibility category,” the notice says, adding that “the Secretary retains discretion to continue to extend parole to any alien paroled under CHNV—temporarily under such conditions as she may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

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11. Lawsuit Challenges Trump Administration’s Use of 1798 Law to Justify Deportations of Venezuelans Without Due Process

The American Civil Liberties Union (ACLU), Democracy Forward, and the ACLU of the District of Columbia sued the Trump administration over President Trump’s “unlawful and unprecedented invocation” of the Alien Enemies Act of 1798 (AEA), a wartime authority, to round up and deport Venezuelans from the United States without due process that it asserted were gang members. The complaint notes that:

[T]he AEA has only ever been a power invoked in time of war, and plainly only applies to warlike actions: it cannot be used here against nationals of a country—Venezuela—with whom the United States is not at war, which is not invading the United States, and which has not launched a predatory incursion into the United States. The government’s Proclamation would allow agents to immediately put noncitizens on planes without any review of any aspect of the determination that they are Alien Enemies. Upon information and belief, the government has transferred Venezuelans who are in ongoing immigration proceedings in other states, bringing them to Texas to prepare to summarily remove them and to do so before any judicial review—including by [the U.S. District Court for the District of Columbia]. For that reason, Plaintiffs-Petitioners and the putative class that they represent seek this Court’s intervention to temporarily restrain these summary removals, and to determine that this use of the AEA is unlawful and must be stopped.

The ACLU noted that on March 15, 2025, a federal judge “broadened the scope of a temporary restraining order (TRO) blocking the Trump administration from removing immigrants from the United States using the Alien Enemies Act. The ruling extended the order to everyone in danger of removal under the act and granted class certification.” The March 15 decision said the President’s “attempt to summarily remove Venezuelan noncitizens exceeds the wartime authority that Congress delegated in the AEA, violates the process and protections that Congress has prescribed elsewhere in the country’s immigration laws for the removal of noncitizens, and violates due process.”

On March 15, apparently while the judge was holding a hearing on the ACLU case, several planes took off with hundreds of Venezuelans to be detained in a maximum-security prison in El Salvador. Many details were unclear, but Reuters published a timeline. The names of the Venezuelans on board were not released by the U.S. government, but CBS News reported names it said were on an internal government list it obtained of 238 Venezuelans taken to El Salvador. After the hearing on March 15, the judge ordered that “any plane containing these folks—because it’s going to take off or it’s in the air—needs to be returned to the United States.” Instead the planes landed in El Salvador and the Venezuelans were taken to prison.

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12. ICE Detains Tourists and U.S. Resident Foreign Nationals, Sparking Concern

According to reports, U.S. Customs and Immigration Enforcement (ICE) has stepped up detentions and deportations of foreign nationals entering the United States as tourists or permanent residents, leading to several countries issuing travel warnings.

Recent developments include:

• Axios reported that French government officials said that a French researcher headed for a conference in Houston, Texas, was denied entry into the United States based on messages critical of the Trump administration’s policies on academic research. Axios provided several other examples. Philippe Baptiste, France’s minister of higher education and research, said he has requested an emergency meeting with other European ministers on academic freedom.
• Also, a federal judge has blocked the deportation of a Georgetown University researcher, Badar Khan Suri, “unless and until the Court issues a contrary order.” Mr. Suri was accused of spreading Hamas propaganda. A lawsuit filed by Mr. Suri, who is a visiting scholar, said that the government’s “plans to whisk him 1,600 miles away in the same manner as the government did in the case of Mr. Mahmoud Khalil, isolating him from his wife, children, community and legal team, are plainly intended as retaliation and punishment for Mr. Suri’s protected speech.” Mr. Suri’s wife, a U.S. citizen, is a Palestinian who has reportedly criticized U.S. foreign policy toward Israel.

The detentions have aroused international concern. Der Spiegel reported [in German with English translation available via Google Translate] that Germany has enhanced its advice to Germans traveling to the United States after several Germans were detained, warning of possible “arrest, deportation detention and deportation” in certain circumstances and noting that U.S. border officials have the authority to deny entry despite a visa or Electronic System for Travel Authorization clearance. Canada, Denmark, and Finland have also issued travel advisories for their citizens, and the United Kingdom has revised its advice. Some of the warnings note that the Department of State has eliminated the “X” marker on passports for those not identifying as male or female.

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13. Trump Administration Shuts Down Immigration Watchdog Offices

According to reports, the Department of Homeland Security’s (DHS) Citizenship and Immigration Services Ombudsman’s office has closed and its employees have been terminated, along with the offices of the Immigration Detention Ombudsman and Civil Rights and Civil Liberties.

Tricia McLaughlin, a DHS spokesperson, said that the offices “have obstructed immigration enforcement by adding bureaucratic hurdles and undermining DHS’s mission. Rather than supporting law enforcement efforts, they often function as internal adversaries that slow down operations.” But Rep. Bennie Thompson (D-MS), the top Democrat on the Homeland Security Committee, said the mass firings were an attempt to ensure “that there will be no transparency or oversight of [President Trump’s] extreme agenda.”

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14. U.S. Arrests and Detains Permanent Resident Protester, Raising First Amendment Concerns

On March 8, 2025, U.S. Immigration and Customs Enforcement (ICE) agents arrested and detained Mahmoud Khalil, a recent Columbia University graduate, Syrian immigrant, and pro-Palestinian protester who is a permanent resident of the United States. On March 10, 2025, a U.S. district judge ordered that Mr. Khalil not be removed from the United States pending a ruling on his petition.

According to reports, Secretary of State Marco Rubio personally signed off on the revocation of Mr. Khalil’s permanent resident status after receiving information from the Department of Homeland Security that Mr. Khalil had participated in “pro-Hamas rallies” at which pro-Hamas propaganda was distributed. The Trump administration has said it plans to expand arrests and deportations based on foreign policy grounds under the Immigration and Nationality Act: “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” Otherwise lawful statements, beliefs, or associations cannot be used as grounds for exclusion or deportation, unless the Secretary of State “personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.”

The Khalil case has raised First Amendment concerns about people’s right to express views that differ from those of the U.S. government. Commenters have noted, for example, that in a concurring opinion in the 1945 Supreme Court case, Bridges v. Wixon, Justice Francis Murphy wrote that “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” Although DHS stated that Mr. Khalil had participated in “pro-Hamas” activities, Baher Azmy, legal director of the Center for Constitutional Rights and one of Khalil’s attorneys, said that his detention “has nothing to do with security; it is only about repression. The United States government has taken the position that it can arrest, detain, and seek to deport a lawful permanent resident exclusively because of his peaceful, constitutionally protected activism. In this case, in support of Palestinian human rights and an end to genocide in Gaza.” It was unclear what evidence DHS used to determine that Mr. Khalil’s actions constituted “pro-Hamas” activities. Hamas is a designated terrorist organization.

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15. DOS Expands Foreign Affairs Functions Exempted From Public Notice Requirements; Significant Effects on Agency Rulemaking and Adjudications Likely

Secretary of State Marco Rubio published a notice on March 14, 2025, that includes a statement dated February 21, 2025, reiterating that the Department of State’s (DOS) foreign affairs purview includes “all policy related to the protection and travel of U.S. citizens overseas, visa operations and visa issuance, implementation of the Arms Export Control Act, and implementation of the Mutual Educational and Cultural Exchange Act of 1961.”

The notice further declares that “all efforts, conducted by any agency of the federal government, to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States, constitute a foreign affairs function of the United States under the Administrative Procedure Act [APA].” This effectively constitutes an expansion to other federal agencies of the exemption of these “foreign affairs” functions from the APA’s requirements.

Commenters noted that this determination could have significant effects on rulemaking and adjudications of several agencies. For example, NAFSA said this means that agencies such as DOS and the Departments of Homeland Security and Labor could issue new immigration and border-related regulations without notice and comment; make legal challenges based on APA violations more difficult; and potentially reduce transparency in immigration-related adjudications, including removal proceedings.

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16. DHS Designates New Form for Registration and Fingerprinting

Following the Department of Homeland Security’s (DHS) announcement that certain noncitizens in the United States must register and be fingerprinted, the agency released an interim final rule designating a new registration form, G-325R, for that purpose, effective April 11, 2025. There is no fee. DHS requests comments on the interim rule by May 12, 2025.

According to DHS:

• With limited exceptions (e.g., for visa holders who have already been registered and fingerprinted (through their application for a visa) and A and G visa holders), those above the age of 14 who remain in the United States for 30 days or longer must apply for registration and be fingerprinted before the expiration of 30 days.
• Similarly, parents and legal guardians must ensure that their children below the age of 14 are registered.
• Any noncitizen, regardless of previous registration, who turns 14 years old in the United States must update their registration and be fingerprinted within 30 days after their 14^th
• Green card holders (permanent residents) who obtained their green cards under age 14 must register by filing Form I-90, to replace their green cards, and be fingerprinted, upon reaching age 14. They should file Form I-90 instead of Form G-325R.
• Willful failure or refusal to apply to register or to be fingerprinted is punishable by a fine of up to $5,000 or imprisonment for up to six months, or both.
• Those who register under these requirements will receive a “certificate of alien registration or alien registration receipt card” and must “at all times carry and have [it] in their personal possession.” Such persons also must notify DHS in writing of any changes of address.

Contact your Alliance of Business Immigration Lawyers attorney for advice in specific situations.

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17. ICE Empties Guantanamo of Migrants; CBP Reduces Temporary Processing Facilities Along Southwest Border

According to reports, on March 11, 2025, U.S. Immigration and Customs Enforcement (ICE) moved the last 40 migrants who had been detained at the U.S. Naval Base in Guantanamo Bay, Cuba, back to the United States, thus emptying out the Guantanamo detention center. This was the second time the Trump administration brought migrants to Guantanamo and then removed them. In February, 177 Venezuelans were brought to Guantanamo and then repatriated to Venezuela, and on March 2, 48 were brought to the United States from Guantanamo. About 290 migrants have been brought to Guantanamo and then flown out following President Trump’s order to take migrants there.

It was unclear why the 40 migrants were flown from Guantanamo to the international airport in Alexandria, Louisiana, as no announcements were made. The move occurred shortly before a U.S. district court was scheduled to hear several cases challenging aspects of the Guantanamo detention policy. The operation has cost a reported $16 million so far, with a staff of about 1,000 security personnel and contractors, many from U.S. military bases.

Also, on March 13, 2025, following a drop in apprehensions along the U.S. southwest land border, U.S. Customs and Border Protection (CBP) announced that it is closing some of the temporary processing facilities in that area. “CBP no longer has a need for them as illegal aliens are being quickly removed. The U.S. Border Patrol has full capability to manage the detention of apprehended aliens in its permanent facilities. Manpower and other resources dedicated to temporary processing facilities will be redirected toward other priorities and will speed CBP’s progress in gaining operational control over the southwest border,” said Pete Flores, Acting CBP Commissioner.

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18. April Visa Bulletin Announces Retrogression of China and India EB-5 Final Action Dates, Unavailability of EB-4 Immigrant Visas for Rest of Fiscal Year

The Department of State’s Visa Bulletin for April 2025 reports that increased demand and number use by China and India in the EB-5 unreserved immigrant investor green card category, combined with increased Rest of World demand and number use, has made it necessary to retrogress the final action dates to hold number use within the maximum allowed under the fiscal year (FY) 2025 annual limits. The bulletin states that it may also become necessary to establish a final action date for Rest of World countries if demand and number use continue to increase.

The bulletin also includes a reminder that immigrant visas for FY 2025 in the EB-4 category, which includes certain religious workers under the SR visa category, remain unavailable. The bulletin notes that annual limits will reset with the start of the new fiscal year on October 1, 2025. “At that point, embassies and consulates may resume issuing immigrant visas in this category to qualified applicants,” the bulletin says.

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19. DOS Resumes Processing of Following-to-Join Relatives of Refugees in United States

Following a preliminary injunction in Pacito v. Trump, the Department of State (DOS) announced on March 14, 2025, that it has resumed processing of following-to-join beneficiaries who are relatives of refugees already in the United States.

DOS said it will “communicate directly with beneficiaries whose appointments were previously canceled to reschedule these appointments.” The agency said it also will continue processing any application for which the following-to-join refugee beneficiary has already been interviewed. “Beneficiaries wishing to continue their applications will require a sponsor to fund their medical exams and travel to the United States,” DOS said.

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20. CDC Removes COVID-19 Vaccination Requirement for Immigrant Visa Applicants

Effective March 11, 2025, the Centers for Disease Control and Prevention (CDC) has removed from its technical instructions to panel physicians the requirement that immigrant visa applicants receive the COVID-19 vaccination, the Department of State (DOS) announced.

Based on the CDC’s updated guidance to panel physicians, U.S. embassies and consulates will no longer refuse an immigrant visa application for failure to present documentation that the applicant received the COVID-19 vaccination. “Applicants whose medical exams are unexpired and otherwise still valid for travel to the United States, and whom a consular officer previously found ineligible based solely on the applicant’s failure to establish vaccination against COVID-19, may have a new medical exam issued by the panel physician without a fee,” DOS said. To request this, affected applicants “should reach out to the U.S. embassy or consulate at which they executed their application for an immigrant visa.”

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21. OFLC Deletes Records From FLAG

On March 11, 2025, the Department of Labor’s Office of Foreign Labor Certification (OFLC) announced the deletion of records beginning Thursday, March 20, 2025. The following OFLC programs were be affected:

• Prevailing Wage Determinations (PWD)
• Permanent Labor Certification Applications (PERM)
• Temporary Labor Certification Applications (H-2A, H-2B, CW-1 visas)
• Temporary Labor Condition Applications (H-1B, H-1B1, E-3 visas)

OFLC said that those with cases in the Foreign Labor Application Gateway (FLAG) system older than five years from the date of final determination should have downloaded them by March 19, 2025.

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22. Trump Administration Plans to Restart and Expand Travel Bans

According to reports, the Trump administration is preparing to restart and expand a travel ban policy against certain countries that had been implemented during his first administration. Officials said the travel ban would likely include the same countries that were on the list the first time—Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen—and that Afghanistan and Pakistan could be added, along with possibly others.

It is unclear whether the travel ban will include highly vetted Afghans already cleared for U.S. resettlement on Special Immigrant Visas (SIVs) or as refugees due to their working with the United States during the war with the Taliban. The Department of State’s Coordinator for Afghan Relocation Efforts recommended an exemption for SIV-holders “but it’s not assumed likely to be granted,” according to one source. That office has been ordered to close. “Shutting this down would be a national disgrace, a betrayal of our Afghan allies, of the veterans who fought for them, and of America’s word,” said Shawn VanDiver, founder of #AfghanEvac. Meanwhile, Afghan evacuation and resettlement efforts have been paused.

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23. USCIS Changes Many Forms With No Notice, Adds Grace Periods After Complaint Filed

On March 8, 2025, U.S. Citizenship and Immigration Services (USCIS) posted changes to many forms with grace periods for their use of up to one month. This immediately followed a complaint filed by the American Immigration Lawyers Association (AILA) and Benach Collopy LLP for declaratory and injunctive relief to challenge USCIS’s publishing new editions of immigration forms with no notice and requiring their use with no grace period.

AILA explained that on Monday, March 3, and again on Tuesday, March 4, 2025, USCIS “abruptly posted multiple forms for immediate use and removed the previous versions, only permitting the submission of the new form editions. No notice was given, no grace period was implemented.” AILA said that across the United States, “immigration attorneys and their clients were faced with the reality that potentially tens of thousands of forms that had been submitted properly and in accordance with the law would be rejected even if mailed before the new form was made available.” AILA said it reached out to USCIS to “request a grace period for acceptance of the new forms, but the agency offered no clear relief or public guidance” and thus “litigation was required.” Shortly after AILA filed the lawsuit, USCIS responded that “while no definite grace period is being provided, USCIS will exercise its discretion to not reject previous versions of forms that are submitted for a reasonable period after the new versions take effect.” USCIS then subsequently posted grace periods.

According to AILA, at least some of the changes are related to gender identity language and reinstituting the use of “alien.”

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24. USCIS Plans to Require Applicants to Provide Access to Social Media Accounts

On March 5, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that it plans to require applicants for various immigration benefits to provide access to their social media accounts. USCIS said there was a “need to collect social media identifiers (‘handles’) and associated social media platform names from applicants to enable and help inform identity verification, national security and public safety screening, and vetting, and related inspections.”

The agency said the collection of information was “necessary to comply with section 2 of the Executive order (E.O.) entitled ‘Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,’ which directs implementation of uniform vetting standards and requires the collection of all information necessary for a rigorous vetting and screening of all grounds of inadmissibility or bases for the denial of immigration-related benefits.” The Department of State already asks for social media information in conjunction with visa applications filed outside of the United States.

USCIS said comments are “encouraged” and will be accepted until May 5, 2025.

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25. Trump Administration Fires EOIR Personnel and Immigration Judges While Backlogs Grow

According to reports, the Trump administration has fired a number of Executive Office for Immigration Review staff and immigration judges (IJs). On February 14, 2025, 13 IJs who had been hired recently were summarily fired, along with seven assistant chief IJs. One IJ, Kerry Doyle, was fired via an email with the subject line “Termination” that stated, “EOIR has determined that retaining you is not in the best interest of the agency,” with no other details. Her hiring process had taken 14 months with multiple interviews, and she was appointed in December 2024.

Since February 14, according to the International Federation of Professional and Technical Engineers, a parent union of the National Association of Immigration Judges (NAIJ), at least two more IJs have been fired, along with eight supervisory assistant chief immigration judges and five senior managers. Some were recent hires, but others had been on the job for a long time. Collectively, they would have been responsible for hearing an estimated 10,000 cases this year. More IJs and staff are leaving or retiring early. In addition, more than a dozen of the 28 members of the Board of Immigration Appeals were purged.

It is unclear if or when the fired staff will be replaced. Aaron Reichlin-Melnick, a senior fellow with the American Immigration Council, posted on Bluesky that the actions were an “ideological purge” and that the results show “how much ‘fire everyone’ conflicts badly with ‘deport everyone.’ ” Meanwhile, backlogs continue to grow, reaching nearly 3.6 million cases, as evidenced by the graph below:

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26. Annual Limit Reached in EB-4 Category

The Department of State (DOS), in collaboration with U.S. Citizenship and Immigration Services, announced that it has issued all available immigrant visas in the employment-based fourth preference (EB-4) category for fiscal year (FY) 2025. This category of about 10,000 green cards per year is for a variety of people, including religious workers and special immigrant juveniles.

DOS said that “embassies and consulates may not issue visas in these categories for the remainder of the fiscal year. The annual limits will reset with the start of the new fiscal year (FY 2026) on October 1, 2025. At that point, embassies and consulates may resume issuing immigrant visas in this category to qualified applicants.”

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27. President Trump Designates English as Official Language But Does Not Require Agencies to Delete or Stop Producing Materials in Other Languages

On March 1, 2025, President Trump issued an executive order designating English as the official language of the United States.

Notably, although the order states that Executive Order 13166 of August 11, 2000 (Improving Access to Services for Persons with Limited English Proficiency), is revoked, the order does not require or direct any change in the services provided by any agency: “Agency heads should make decisions as they deem necessary to fulfill their respective agencies’ mission and efficiently provide Government services to the American people. Agency heads are not required to amend, remove, or otherwise stop production of documents, products, or other services prepared or offered in languages other than English.”

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28. Elon Musk Arrested on April 1 for Working Illegally in the United States

On April 1, 2025, as part of a crackdown on immigrant students for national security reasons, the Department of Homeland Security announced the arrest of Elon Musk for working illegally in the United States in the 1990s after he was in J-1 student status and dropped out of school.

Mr. Musk, born in South Africa, obtained Canadian citizenship through his mother. On a J-1 visa, Mr. Musk graduated from the University of Pennsylvania and enrolled in a graduate program at Stanford University’s Materials Science and Engineering school, but dropped out to launch his start-up company. To maintain J-1 status, a student must be actively engaged in a full course of study to be allowed to work. Mr. Musk has stated in tweets that he went from J-1 to H-1B status, but it is unclear how he eventually got H-1B status if he had fallen out of J-1 status, and what happened in between. According to reports, enforcement of student visa restrictions increased after the terror attacks of September 11, 2001.

Noting that there are “a lot of men that maybe we don’t want in our country,” President Trump said it was time to crack down on immigration scofflaws like Mr. Musk who skirt the rules, as “a defense of our country” in the face of a “national emergency.” He said Mr. Musk would be sent to a tent before being deported. “We have thousands of tents. We have a lot of tents; we have a lot of everything,” he said, adding that he told Mr. Musk, “Out. Get out. Just get out.” Such people, he said, “disrespect the foundations of American government by voluntarily choosing to break the law.” If Mr. Musk wants to come back, President Trump said, he can buy a “gold card” visa.

Mr. Trump therefore signed a new, big, beautiful “April Fool’s” executive order deporting Mr. Musk, effective April 1, 2025. “It’s the best executive order you’ve ever seen,” he said.

According to rumors, Melania Trump, who also has possible gray areas in her immigration history, was seen trying out the new CBP Home self-deportation app.

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New Publications and Items of Interest

Know your rights. A number of organizations, including the American Civil Liberties Union (ACLU) (English and Spanish), the Immigrant Legal Resource Center, Catholic Legal Immigration Network, Inc., the National Immigrant Justice Center, and the Asian Law Caucus, have published resources highlighting immigrants’ rights in the United States, including “know your rights” information and what documents they may want to carry when traveling inside the United States. ACLU of Northern California has also released Know Your Rights: U.S. Airports and Ports of Entry.

E-Verify webinars: E-Verify has added a webinar with a focus on acceptable documents for Form I-9 verification, and has updated its calendar of webinars.

SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) has updated its calendar of webinars.

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

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has published Prioritizing Immigration Compliance: Considerations for Employers.

Klasko Immigration Law Partners, LLP, published several new blog posts: DHS Implements New Requirements for Non-U.S. Citizens Not Previously Registered, FAQ: New Fingerprint and Registration Requirement for Certain Noncitizens, and USCIS Announces Upcoming Fingerprint and Registration Requirement for Certain Noncitizens.

Klasko Immigration Law Partners, LLP, was named among the “Best Companies to Work For” by U.S. News & World Report for a second year, in the Law Firms category. In a statement, Klasko said, “This recognition highlights the firm’s unwavering commitment to cultivating a workplace where employees feel valued, supported, and empowered to succeed.”

Klasko Immigration Law Partners, LLP, announced that partner Michele Madera has been selected to serve on the Board of Directors of the Garces Family Foundation. Klasko said that Ms. Madera “is honored to support the mission, values, and programs of the Garces Family Foundation, particularly its initiatives benefiting immigrant communities in the Philadelphia region, such as English, GED, and Digital Literacy classes.”

Charles Kuck was quoted by the Bulwark in Will Trump Invoke the Insurrection Act of 1807 Next? He said that President Trump’s potential invocation of the Insurrection Act would not pass muster in the courts because he would be arguing two things at cross purposes. “I don’t know how you can say the border is closed and safer than ever and then say there’s an insurrection that needs to be put down. They’re starting to get pushback from their own voters over the crazy stuff they’re doing, so that might be a step too far.”

Mr. Kuck was quoted by Blavity in Morehouse College Prepares Students for Potential ICE Raids on Campus. He said, “If an ICE agent talks to you, you have no legal obligation to respond to them. You have no legal obligation to produce paper. You have no legal obligation to allow them into your house without a warrant signed by a judge. Even if you’re undocumented, every right in the Constitution is given to you … in your personal life.”

Mr. Kuck was quoted by 11 Alive in Recently Engaged, Beloved Barber Arrested by ICE – How His Immigration Story Is Questioning the System. He said, “Somebody who has been pardoned by the state, been forgiven, moved on with his life, ICE comes along decades later and arrests him and says they’re going to deport him. Our laws haven’t changed in 30 years. What’s changed is how they’re enforced.”

Mr. Kuck was quoted by Marianne in “Nous Allons Révoquer les Visas des Partisans du Hamas”: Comment Donald Trump s’en Prend aux Militants Pro-Palestiniens [We Will Revoke the Visas of Hamas Supporters: How Donald Trump Attacks Pro-Palestinian Activists]. Mr. Kuck said, “Si vous êtes un étudiant étranger ou un résident permanent qui a été détenu pendant les manifestations, vous êtes une cible de cette administration. Vous devez vous préparer, contacter vos professeurs et leur dire que vous finirez peut-être le semestre en prison ou à l’étranger.” [“If you’re a foreign student or permanent resident who was detained during the protests, you’re a target of this administration. You need to prepare, contact your professors, and tell them you may end up in jail or abroad.”] [Translated to English with Google Translate.]

Mr. Kuck was interviewed by WSB TV 2 in Immigration Crackdown. Commenting on the use of police to aid in immigration enforcement, Mr. Kuck said that “it doesn’t make a lot of sense.” He noted that “you cannot train somebody on immigration law in a couple of hours” and that “immigration law is wildly complicated.”

Mr. Kuck was quoted by the Intelligencer in Prince Harry Is (Probably) Not Getting Deported. He said that he was “stunned” that a judge allowed the release of Prince Harry’s immigration files, and that he does not think the prince will be deported from the United States. “Given that many of these facts were known about Harry before he filed for his green card, then I don’t think immigration is going to be able to revoke his green card. This is being done as a publicity stunt, not, I think, to ultimately take Harry’s green card away.”

Mr. Kuck was quoted by CNN in Heavily Redacted Documents Reveal Little in Lawsuit Over Prince Harry’s Immigration Records. Commenting on a question the Form I-485, Application to Register Permanent Residence or Adjust Status, asks, “Have you ever violated (…) any controlled substance law or regulation of a state, the United States, or a foreign country?,” Mr. Kuck said that question has been the subject of numerous cases before the Board of Immigration Appeals, “because in order to answer that question, you have to know the elements of the crime. No person in their right mind would answer ‘yes’ to that question. Because what crime are you talking about? What are the elements of that crime? What are the parameters of violating that law? … I don’t know what the elements of the crime are.”

Mr. Kuck was quoted by Zeteo in Marco Rubio Personally Signed Off to Detain Mahmoud Khalil on ‘Foreign Policy Grounds,’ Sources Confirm. He said that “there’s never been a secretary of state as manipulatable as our current Secretary Rubio. Most of them would stand their ground and would follow due process considerations.”

Mr. Kuck was quoted by the Atlanta Journal-Constitution in Beyond the Fence: What It’s Like Inside Atlanta’s Immigration Court. He noted that Georgia’s immigration judges used to have a reputation for being among the toughest in the United States but said a lot has changed in the last five years, including many of the judges. “The courts today are much more fair than they have ever been. We want a court that’s just. And I think we’re pretty close to that in Atlanta,” he said.

Mr. Kuck was quoted by Mother Jones in “The Entire System Will Collapse”: Inside the Purge of U.S. Immigration Courts. Commenting on the activities of Sirce E. Owen, appointed by President Trump as acting director of the Executive Office for Immigration Review, Mr. Kuck said, “She is attacking prior policies that tried to bring the immigration courts into the 21^st century and reverting back to policies that made justice harder to render and harsher on the immigrants.” The article notes that in 2017, Mr. Kuck and the American Civil Liberties Union represented Mexican-born Jessica Colotl in a lawsuit against Ms. Owen and other Trump administration officials that challenged the revocation of her Deferred Action for Childhood Arrivals status. “I think their ultimate goal is to do away with immigration judges,” he said. Mr. Kuck also commented on the position of immigration judge: “To literally sit in a room all day and order people deported has got to canker your soul. That anybody would want that job is shocking to me and to fire people who were willing to do it with an open mind shows you exactly what this administration intends to do—limit due process and use the law as a weapon, not a shield.”

Mr. Kuck was quoted by KJZZ Phoenix in USCIS Wants to Require Migrants Applying for Benefits to Provide Their Social Media Accounts. He noted that the Department of State (DOS) already asks for social media information when considering visa applications outside of the United States. DOS “clearly does it because they’re abroad, so they’re looking for people who maybe seek to do [the United States] harm and are using it as a vetting tool. [U.S. Citizenship and Immigration Services], of course, is inside the United States, people are here. Many U.S. citizens who also are applicants for their spouses for example, or for their employees, they’ll be required to give their information. What is [USCIS] going to do with that? That’s a question for which we have no answer right now.” Mr. Kuck said the process could help with issues like rooting out false marriages, but that it also likely would further bog down an already backlogged application process at USCIS.

Mr. Kuck was quoted by MSN and CNN on the Trump administration’s “Gold Card” proposal. “They can’t change immigration law in reconciliation,” he said. Mr. Kuck also was quoted by CNN in its subscription-only section.

Mr. Kuck was quoted by Investment News in Trump’s Gold Card Visa Proposal Sparks Questions, Concerns. He said, “Others remain skeptical that a $5 million visa would attract a large enough pool of investors to replace EB-5’s economic contributions.” Mr. Kuck also said that the “amount of money that the EB-5 program has brought in over the course of the last 30 years would dwarf the number of people who could actually afford and want to use a $5 million golden visa.”

Cyrus Mehta and Greg Siskind, of Siskind Susser PC, were quoted by the Times of India in Brace for Immigration Changes To Be Introduced Overnight, Warn Attorneys, As Inviting Public Comments Is No Longer Required. Mr. Mehta said, “I foresee that the administration will issue more regulations without getting public input. Obtaining such input from the public is a win-win for all as the administration can issue rules that would be acceptable and less likely to be challenged in court later as not being consistent with the statutory provision. After a Supreme Court decision last June 2024 (Loper Bright v. Raimondo), courts are no longer required to give deference to a government agency’s interpretation of the statutory provision enacted by Congress. Therefore, there is now a greater chance that a new rule could be successfully challenged in court as the government’s interpretation of the rule can be more easily set aside.” Mr. Mehta also said, “It may be difficult to challenge [a Department of State notification] as it is just a general pronouncement. However, when the administration next issues a rule and claims the foreign affairs function exception in the Administrative Procedure Act [APA], the invocation of the exception can certainly be challenged in court on grounds that the rule has no relation to the foreign affairs of the U.S. In CAIR Coalition v. Trump, a rule barring asylum seekers, who had traveled through other countries, from applying for asylum at the southern border was struck down as it did not meet the exception, among other grounds. To meet the ‘foreign affairs’ exception, a rulemaking must ‘clearly and directly’ involve a foreign affairs function of the United States.” Mr. Siskind said, “For years, we have seen U.S. Citizenship and Immigration Services impose policies via a memo and lawsuits have successfully challenged this. So, I am guessing the Trump administration wants protection to make rules without any of the public-facing protections required by the APA.”

Mr. Mehta was quoted by Forbes in Trump Immigration Policies Increase Peril for International Students. He said, “Even if the visa is revoked and the F-1 status has been terminated in SEVIS, a foreign student can still continue to study and, if placed in deportation proceedings, should challenge the deportation before an immigration judge. If removal proceedings have not commenced, I think a student can also challenge the notice that they have been terminated in SEVIS in federal district court through the Administrative Procedure Act on the grounds that the action was arbitrary, capricious and the student was not given any warning or notice to respond.” Mr. Mehta said he believes that if a student is placed in removal, the student may be able to “challenge on First Amendment grounds, but the student may need to do this at the Court of Appeals stage since an immigration judge and the Board of Immigration Appeals may rubber-stamp Rubio’s determination.”

Mr. Mehta was quoted by Bloomberg Law in Trump Tempts Suits in Shutting Public Out of Immigration Rules. He said that there is “plenty of case law” to support arguments that Administrative Procedure Act rules should continue to apply to immigration and border-related regulations.

Mr. Mehta was interviewed by Dainik Bhaskar in It Is Not Necessary to Leave the U.S. Even If a Visa Is Revoked [in Hindi with Google Translate available]. He said that the United States’ revoking of some F-1 student visas for protesting “is a foolish decision on the part of the Trump administration. Under the Constitution in the U.S., everyone has the right to freedom of expression and peaceful protest.” He said that under the law, a student cannot be forcibly deported before going through a legal process and if a student receives an email asking them to self-deport, they can challenge that decision in a federal court.

Mr. Mehta was quoted by Law360 in Lawyers Slam Trump Memo on ‘Vexatious’ Attys. Calling a Trump administration memorandum “outlandish,” he said, “To taint the whole legal profession that is involved in immigration work is totally unwarranted and uncalled for, because it undermines the rule of law and it also basically demeans the good work that’s been done.”

Mr. Mehta was quoted by the Times of India in AILA Condemns Trump’s Crackdown on Immigration Lawyers, Calls It a Threat to Legal Integrity. He said that President Trump believes that “[s]upposedly unethical lawyers are standing in [the Trump administration’s] way to dismantle an immigration system that allows the persecuted to seek protection in the U.S.” A Trump administration memorandum, he said, “suggests ways to ‘kill the lawyers’ by sanctioning and disciplining them through an assortment of court and disciplinary rules. Obviously, there is no truth to this assertion [made in the memorandum]. The immigration bar and lawyers in Big Law doing immigration pro bono are ethical. Otherwise, they would have been sanctioned and disbarred by vigilant disciplinary authorities. Trump is engaging in delirious fantasy. Lawyers must stand firm together notwithstanding this nonsensical bluster and continue to represent noncitizens in asylum claims and other immigration cases.”

Mr. Mehta was quoted by The Hindu in ‘Foreign Students Whose Visa Is Revoked Can Legally Stay in the U.S. and Continue Studies If University Doesn’t Disenroll.’ Commenting on media reports about Indian students receiving emails from the U.S. government that their visas have been revoked and they need to self-deport because loss of immigration status would invite fines and deportation, Mr. Mehta said that the students can challenge the visa revocation provided they are not disenrolled from their institution. “If the State Department revokes the visa, the student can technically remain in nonimmigrant status in the U.S. and will need to apply for a new visa when he or she travels outside the U.S. Therefore, the student can still be in student visa status and continue with her studies. But the student can also be placed in deportation proceedings although then he/she will get the opportunity to challenge the visa revocation before an Immigration Judge,” he said.

Mr. Mehta was quoted by Law360 in Columbia Activist Has Steep Legal Climb To Fight Removal. Commenting on a Board of Immigration Appeals decision from 1999 that affirmed the Secretary of State’s authority to remove anyone whose continued presence or activities in the United States are deemed seriously adverse to U.S. foreign policy interests, and Secretary of State Marco Rubio’s claim that green card holder Mahmoud Khalil, a pro-Palestinian activist, should be deported, Mr. Mehta said that the lower evidentiary standard established in that case, In re Mario Salvador Ruiz Massieu, “is the problem. It creates an uphill climb, but it’s not like all hope has been lost—one can distinguish Ruiz Massieu from Khalil’s case.” For example, among other things, Mr. Mehta noted that Mr. Khalil is a permanent resident, which should give him more due process rights. Another aspect to consider would be the timing of Mr. Rubio’s letter outlining his reasons for removal and the Notice to Appear (NTA) issued by the Department of Homeland Security to start Mr. Khalil’s removal proceedings, Mr. Mehta said: “If the whole NTA is based on this determination from the secretary of state, and if there was no proper determination articulated at the time the NTA was served, then there’s a defect.”

Mr. Mehta authored a new blog post: “Trump and Dick the Butcher Have the Same Impulse: ‘Let’s Kill All the Lawyers.’ “

Mr. Mehta was quoted by Forbes in Trump Promises to Deport Migrants for Their Foreign Policy Views. He said, “I do not think one can challenge Secretary Rubio’s determination in an immigration court that the noncitizen’s presence or activities in the United States would have potentially adverse foreign policy consequences described in the letter. On the other hand, the very constitutionality of the provision may be challenged in the Court of Appeals after the noncitizen has received a removal order under First Amendment principles and their ties to the United States.” The article says Mr. Mehta believes that a lawful permanent resident would have the best chance to challenge the law, but a temporary visa holder could succeed, particularly an H-1B or L-1 visa holder. Those visas are dual intent, he noted, and the individuals can show ties to the United States. Mr. Mehta added that a lawful permanent resident seeking readmission from a trip abroad who is placed in removal proceedings can assert that the burden is on the Department of Homeland Security to establish, through clear and convincing evidence, that the individual is inadmissible. However, the burden is on a temporary visa holder to establish that they are entitled to admission clearly and beyond doubt, he said. Mr. Mehta also noted that ““There is a potential constitutional issue under … First Amendment case law with giving the Secretary of State the authority to authorize removal for what the statute hypothesizes would be lawful activity.”

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: A Foreign Student Whose Visa Has Been Revoked by Trump Should Still Be Able to Continue to Attend School; Challenging the Foreign Policy Ground of Removability in Defense of Free Speech and the Rights of Green Card Holders; and Trump’s Cruel Immigration Policies Have No Rational Justification Except to Harass and Intimidate Immigrants such as the Alien Registration Requirement.

Mr. Mehta was featured on the ITV Gold On Point podcast series on President Trump’s immigration policies.

Mr. Mehta was featured in a Reuters segment, U.S. Judge Temporarily Blocks Deportation of Columbia Student. He said, “Green card holders have rights. They just cannot be picked up in the way he has been and detained incognito. The person should have been convicted of a crime, a deportable offense. I don’t believe Mr. Khalil has been convicted of such an offense, from what I know. You could also initiate deportation proceedings if a green card holder has provided material support to a terrorist organization, which is what the Trump administration has been alleging.” He added that in such cases, the government has a high burden of proof and involvement in protests for Palestinian rights would not typically constitute material support to terrorism.

Mr. Mehta authored an article on LinkedIn, Let’s Fight to Uphold Our Rights to Free Speech and the Rights of Green Card Holders.

Mr. Kuck and Mr. Mehta were quoted by the Washington Examiner in Immigrant Activists Decry Trump Registration Requirement: ‘Terrorize People.’ Their views on the registration program are reflected in the article.

Mr. Siskind was quoted by the Miami Herald in “Many to Come”: Trump Administration Plans More Removals of Students Protesting War in Gaza. He said the Trump administration’s actions are likely to face scrutiny from judges. “I’m guessing that the threat of removal is going to mean more than the actual reality. I’m reminded of the first Trump administration where they were threatening to denaturalize people en masse and very few people were actually affected,” he said.

Stephen Yale-Loehr of Miller Mayer, LLP, was quoted by Inside Higher Ed in Smashing the Student Visa System. He said that the Trump administration leaving university officials in the dark about changes to students’ visa status “makes it difficult for colleges to advise their international students. The system works on communication going both ways between immigration officials and institutions. The government doing things in secret makes it hard for both students and universities to know whether they are complying.”

Mr. Yale-Loehr was quoted by Forbes in Trump Immigration Policies Increase Peril for International Students. He noted that if someone had not seen a Tufts University graduate student’s arrest and recorded a video, it is possible that the student would have just “disappeared” by moving to detention in another state with no record in the ICE online detention locator. Mr. Yale-Loehr said he saw three problems that threaten the ability of international students to remain in the United States. First, the Department of State (DOS) is canceling visas due to an exercise of free speech that administration officials find objectionable. Second, ICE denies due process since students cannot respond to charges. Third, student SEVIS records are terminated for “failure to maintain status” because DOS revokes a visa and makes them subject to removal.

Mr. Yale-Loehr was quoted by ABC News in Some College Students Are Being Targeted for Deportation. What Rights Do They Have? He noted that even though recent students who have had their visas revoked do not have criminal records, the Trump administration has insisted that they be detained while their cases play out. “The Trump administration has been a lot more aggressive than past administrations on putting people who have not been convicted of crimes into immigration detention.” He noted that to prove that a noncitizen threatens U.S. foreign policy, the administration would need to submit sworn declarations or evidence to prove the person’s impact on foreign policy. “If it is this foreign policy ground, you need a statement from the secretary of state saying the magic words, this person’s presence would have serious adverse foreign policy consequences,” he said.

Mr. Yale-Loehr was quoted by CBS News in Trump’s Crackdown on Students With Visas and Green Cards Sets Up First Amendment Showdown. He said, “There’s a tension between everyone’s First Amendment rights to free speech and the immigration statute’s broad provisions giving the secretary of state broad latitude to declare someone deportable simply because he thinks that the student may have potentially serious adverse foreign policy consequences. And the courts will have to figure out where the appropriate line should be drawn.” Recalling two other cases where similar powers were invoked in deportation proceedings, Mr. Yale-Loehr said he expects that it will take years for these cases to be settled, predicting that “it’s going to be a mess. If there’s over 300 students who had their visas revoked, there’s going to be a lot of cases challenging it. I suspect that the litigation will take years to unravel before a court and get a definitive ruling on the extent to which foreign nationals have First Amendment rights.”

Mr. Yale-Loehr was quoted by the Washington Post in As Trump Cracks Down on Immigration, U.S. Citizens Are Among Those Snared. He said he fears that the Trump administration’s approach to immigration enforcement risks sidelining core legal protections. “I think that numbers are what are driving this administration, and due process be damned. That’s a real danger. These wrongful detentions and deportations are part of this growing trend of depriving people of due process, which is a fundamental right in the Constitution.”

Mr. Yale-Loehr was quoted by NPR in What Green-Card and Visa Holders Should Know Before Traveling Abroad. He recommended that green card and visa holders double-check their immigration documents before they fly. “Make sure everything is in order, their visa hasn’t expired or they don’t have a renewal application pending,” he said. Mr. Yale-Loehr noted additional factors that could raise a traveler’s risk level, pointing to a draft list of 43 countries that could be hit with a new travel ban. Although there’s not a travel ban currently in effect, he advised travelers from the 11 countries in the proposed “red” category to think twice before flying here. These countries include Afghanistan, Bhutan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, and Yemen. He added that typically, visa holders who are denied entry are simply put on the next plane back to their home countries. But some have recently been taken into custody and detained for days or more. “ It’s seemingly a growing problem,” he said, noting that U.S. Customs and Border Patrol (CBP) officers can ask travelers to unlock their cell phones, give laptop passwords, or hand over digital cameras. U.S. citizens and green card holders cannot be turned away simply because they refuse, but visa holders can, he said. Mr. Yale-Loehr also noted that during an electronic search, CBP officers often look for material that would suggest a noncitizen is ineligible to enter the United States. “ There’s wide discretion at the border in terms of who to admit to the United States, even if you have a valid visa,” he said. Although travelers asked to undergo further inspection at the airport are not entitled to an attorney, Mr. Yale-Loehr said it is still useful to have an immigration attorney’s contact information on hand. He also suggested that travelers have a friend who can be quickly reached if there’s trouble entering the United States. “So if it looks like you’re going to be questioned by the border people, you can text a friend saying, ‘I’m being pulled into secondary inspection, contact my immigration lawyer,’ ” he said.

Mr. Yale-Loehr was quoted by The Hill in High-Profile Arrests of Tufts, Alabama Students Spotlight Growing Trump Sweep. He said, “Trump has declared war on immigrants generally and international students specifically, and he’s trying to exert his executive powers to the maximum extent he can. It will be up to the courts to see at what point he oversteps his authority.” Mr. Yale-Loehr also noted “a tension between everyone’s right to First Amendment freedom of expression in the United States and this broad immigration ground that basically gives the Secretary of State carte blanche to declare anyone a threat to our national security, and the courts will have to decide which wins out. And so, this could be going on for a long time.”

Mr. Yale-Loehr was quoted by Newsweek in Could Visa and Green Card Holders Be Deported? What the Law Says. He said, “There are many grounds of deportability, including criminal convictions, prostitution, domestic violence. One of the more obscure grounds that has existed for many years allows the Secretary of State to put someone into deportation proceedings if the Secretary determines that that person’s presence has serious adverse foreign policy consequences. That provision has not been used very often. I can only recall one time, or two times, in the last 30 years, but now we have seen at least two instances where this administration has invoked that ground of deportability, both to revoke those students’ visas and to place them in deportation proceedings.” Mr. Yale-Loehr said that anyone in the United States, even without legal immigration status, has constitutional rights, such as the right to free speech and the right to due process, including having their case heard in court. Noting that the President has discretionary powers over immigration because the issue touches on foreign relations, he said, “This administration seems more willing to use these old deportation grounds that have been around since the Red Scare of 1950s as a way to go after people who do speak out. We’ll have to see whether the courts strike down these efforts as violating the students’ constitutional rights or whether they say that, despite the Constitution, the president does have the right to deport these people.”

Mr. Yale-Loehr was quoted by Inside Higher Ed in Colleges Fear Decline in International Student Enrollment. He said the Trump administration’s crackdown on higher education could stifle international enrollment and reduce the significant amount of tuition international students pay. “All of these things have a chilling effect…. As we saw in the first Trump administration, similar policies prompted a decline in the number of international students applying to U.S. colleges. It took really the whole time of the Biden administration to recover from that decline.”

Mr. Yale-Loehr was quoted by Inside Higher Ed in “Palpable Fear” Hangs Over International Students. Commenting on U.S. Immigration and Customs Enforcement (ICE) officials’ activities at Columbia University and Trump administration goals more broadly, he said, “This administration has declared war on immigrants broadly and international students specifically.” He noted that international students “have the same constitutional rights as citizens, but immigration statutes are very broad and there are many grounds for deportability that could trip you up, even as a green card holder.” Among those potential grounds, he said, is donating to an overseas charity that the Department of State deems suspicious or linked to terrorist activity—as it has done with many charities for Palestinian children and families affected by the destruction of Gaza. “It’s easy for someone to unintentionally or unknowingly violate our immigration laws that way and get put into the deportation process,” he said. The article notes that in addition to free speech restrictions and ICE raids, the Trump administration has promised to clamp down on approvals for new student visas, and Congress recently passed the Laken Riley Act, significantly lowering the threshold for visa revocation. Mr. Yale-Loehr said that such policies are beginning to manifest at the border. He said he has heard stories of students with clearly marked visas in their passports being held for further inspection in airports across the country, some of them turned away by ICE and forced to challenge the decision from abroad. “In the past, these students would never have been put into secondary inspection,” he said.

Mr. Yale-Loehr was quoted by National Public Radio in Trump Takes Birthright Citizenship to the Supreme Court. He said the court might be willing to grant a temporary narrowing request, but that “I think that would cause chaos and confusion as to who was included in the court rulings and who is potentially subject to the birthright citizenship ban if the case goes in favor of the Trump administration on the merits…. The Supreme Court may well limit the injunctions partially, maybe not to the extent that the Trump administration wants, but [to the extent] that will allow the Trump administration to claim a political victory.”

Mr. Yale-Loehr was quoted by Salon in “The New Normal”: As Trump Pursues Mass Deportations, Tourists Land in ICE Detention. He noted that a recent spate of tourists being detained is “pretty unusual.” He said that if U.S. Immigration and Customs Enforcement suspects an issue with a tourist’s visa, the agency typically will turn people away if they are attempting to enter through a U.S. border or send them on the next flight back to their home country. “The unusual part of this is that they’ve been detained so long,” he said, noting that U.S. Customs and Border Protection has “been much more vigilant reviewing everyone’s credentials and reasons for coming to the United States” since President Trump took office. “Our immigration detention system is often a black hole where individuals have a hard time contacting lawyers or family friends to be able to help them, and there’s no clear procedures other than bringing a federal court action to try to get them released—or until CBP determines that they need to be deported and then sends them out,” he said.

Mr. Yale-Loehr was quoted by the Chronicle of Higher Education in An ICE Arrest at Columbia U. Stokes Outrage and Raises Legal Questions. He said that Mahmoud Khalil, who was detained following his participation in pro-Palestinian protests, should be allowed to challenge the accusations against him in court. Sending him to a detention center makes it harder for Khalil to communicate with lawyers and fight his case, Mr. Yale-Loehr noted. The case, he said, is likely to create a chilling effect among international students.

Mr. Yale-Loehr was quoted by Time in What to Know About Mahmoud Khalil, and Why His Green Card Was Revoked. He noted that although green card holders have many of the same rights as U.S. citizens, they can still face deportation under certain conditions, typically for criminal behavior or violations of immigration law. Foreign nationals can also lose their visas for endorsing or associating with terrorist groups, but only if the government can provide material evidence, he noted. “The government would need to prove that he’s done something more than just speaking out, like offering material support to Hamas. That would be a ground of deportability. They can’t deport only for free speech advocacy.”

Mr. Yale-Loehr was quoted by Documented NY in Trump Immigrant Registration Plan Is a Scare Tactic, Law Experts Say. He noted that the new registration requirement will be easier for the Trump administration to implement than others because it is related to a rarely enforced existing law. Mr. Yale-Loehr noted that enforcing the registration requirement would most likely necessitate hiring more immigration agents, and he said it is unlikely that charges would be filed against every person who fails to register, which makes the announcement “more of a scare tactic. It’s an all-out war and this is one more tool in their arsenal to wage war on immigrants.”

Mr. Yale-Loehr co-authored Extreme Consistency: How Employers Can Help Prepare for Extreme Vetting, published by Cornell Law School’s Path2Papers project.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. DHS Pauses Humanitarian Parole Programs – The top official at U.S. Citizenship and Immigration Services reportedly ordered a pause of various humanitarian parole programs while the agency assesses them. The report describes the scope of the programs to be paused as “vast.”

2. CBP Clarifies Advance Parole Guidance; Practitioners Urge Caution – U.S. Customs and Border Protection clarified that an executive order to ““terminate all categorical parole programs that are contrary to the policies of the United States” does not apply to those arriving with a valid Form I-512 or those being processed for Significant Public Benefit Parole in coordination with federal law enforcement partners. Practitioners urged caution, however.

3. President Trump Orders Guantanamo Bay Expansion to ‘Full Capacity’ – President Trump ordered an expansion of the Migrant Operations Center at Naval Station Guantanamo Bay, Cuba, to “full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States, and to address attendant immigration enforcement needs.” He indicated that some migrants would be sent there indefinitely rather than being deported to their home countries.

4. Scammers Are Impersonating ICE Officers and Local Police – In the current climate of aggressive deportations, scammers are attempting to cash in by impersonating U.S. Immigration and Customs Enforcement officers and local police to scare naturalized U.S. citizens and immigrants into giving out information.

5. The First Week: Round-Up of Key Trump Immigration Actions – This article summarizes key highlights among the flurry of immigration-related actions since President Trump’s inauguration on January 20, 2025.

6. Senate Confirms Kristi Noem as Homeland Security Secretary – The U.S. Senate confirmed Kristi Noem as Secretary of Homeland Security. She will oversee U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

7. USCIS Waives COVID-19 Vaccination Requirement for Adjustment of Status Applicants – Effective January 22, 2025, U.S. Citizenship and Immigration Services is waiving “any and all requirements” that applicants for adjustment of status to permanent residence present documentation that they received the COVID-19 vaccination.

8. Inauguration Eve: A Nation Holds Its Breath – What will actually happen and when, in the short term and over the long term? Only time will tell. Discussion and preparation on both sides have been wide-ranging. This article summarizes select highlights.

9. USCIS Updates Guidance on EB-2 National Interest Waivers – U.S. Citizenship and Immigration Services (USCIS) has updated its policy guidance to clarify how the agency evaluates eligibility for the second preference employment-based category for petitions filed with a request for a national interest waiver.

10. Filing Procedures Updated for Immigrant Petitions for Alien Workers – U.S. Citizenship and Immigration Services announced updated procedures for submitting a Form I-140, Immigrant Petition for Alien Workers, accompanied by a permanent labor certification, application for Schedule A designation, or national interest waiver request.

11. USCIS Extends and Expands DED for Certain Hong Kong Residents in the United States – President Biden has extended Deferred Enforced Departure for eligible Hong Kong residents present in the United States on January 15, 2025, for two years, through February 5, 2027, and has ordered related extended work authorization for the same period.

12. Appeals Court Rules DACA Is Illegal But Limits Ruling to Texas – The U.S. Court of Appeals for the Fifth Circuit affirmed the judgment of a district court that the Deferred Action for Childhood Arrivals program is illegal, but limited the ruling to Texas.

13. Visa Bulletin for February Includes Details About March Expiration of EB-4 Religious Workers (SR) Category – No SR visas may be issued overseas, or final action taken on adjustment of status cases, after March 13, 2025.

14. USCIS Updates O-1 Guidance on Extraordinary Ability Evidence – U.S. Citizenship and Immigration Services updated its policy guidance, effective immediately, to clarify how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, including adding examples of evidence for individuals in critical and emerging technologies.

15. Cap Reached for Additional H-2B Returning Worker Visas; Petitioners Encouraged to File Under Country-Specific Allocations While Visas Remain Available – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2025.

16. DHS Extends TPS for El Salvador, Sudan, Ukraine, and Venezuela – The Department of Homeland Security (DHS) announced the extension of Temporary Protected Status for El Salvador, Sudan, Ukraine, and Venezuela. The extensions are effective for 18 months.

17. OFLC Publishes List of Randomized H-2B Applications – The Department of Labor’s Office of Foreign Labor Certification announced that it has published the assignment groups for 8,759 H-2B applications covering 149,953 worker positions with a work start date of April 1, 2025.

18. Edakunni Settlement Agreement on Concurrent Adjudication Expires on January 18 – A settlement agreement in Edakunni v. Mayorkas, effective for two years, is set to expire on January 18, 2025.

19. Romania Added to Visa Waiver Program – U.S. Customs and Border Protection anticipates that the Electronic System for Travel Authorization online and mobile applications will be updated on or around March 31, 2025, to allow most citizens and nationals of Romania to apply to travel to the United States under the Visa Waiver Program.

20. DHS Releases Statement on Immigration Safety and Enforcement During Los Angeles Area Fires – The Department of Homeland Security released a statement related to immigration enforcement in “protected areas” during the emergency response to the devastating fires in the Los Angeles area.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – February 2025

1. DHS Pauses Humanitarian Parole Programs

On January 23, 2025, the top official at U.S. Citizenship and Immigration Services (USCIS) reportedly ordered a pause of various humanitarian parole programs while the agency assesses them, following an email order from the acting head of the Department of Homeland Security (DHS) to conduct such a review. The New York Times, which obtained a copy of the email, reported that the directive “demands an immediate end to ‘final decisions’ on applications related to the programs while the administration reviews them and decides whether to terminate them.” The news report describes the scope of the programs to be paused as “vast.” Affected parole programs include those for Ukrainians, Cubans, Haitians, Nicaraguans, and Venezuelans.

The agency orders are aligned with various Trump administration statements and actions, including an executive order (EO), Protecting the American People Against Invasion, which President Trump signed on his first day in office; an order to end “all categorical parole programs that are contrary to the policies of the United States established in my executive orders“; and a memorandum from Acting DHS Secretary Benjamine Huffman, “Guidance Regarding How to Enforce Enforcement Discretion.” A DHS statement said that this action “will return the humanitarian parole program to its original purpose of looking at migrants on a case-by-case basis.”

Yael Schacher, the director of Americas and Europe for Refugees International, said, “This suspension on parole decisions is similar to the suspension of all asylum access at the border and the suspension of the refugee program. It’s a testament to the administration’s hostility to all humanitarian immigration.”

Uniting for Ukraine. Among the paused programs is the Uniting for Ukraine (U4U) Parole Program, implemented after Russia’s invasion of Ukraine, which permits Ukrainians seeking temporary refuge to travel to and work in the United States. The DHS directive halts the review and adjudication of both initial and renewal parole applications under the U4U program. While not officially terminated, the directive suggests that DHS will not accept new applications for initial parole periods or renewal (or “reparole”) applications for those seeking to extend their parole in United States.

Practitioners have offered tips for Ukrainians currently in the United States, including knowing their rights, avoiding international travel (even with advance parole or similar travel authorizations), and staying informed. Due to heightened scrutiny at ports of entry, travelers risk being denied reentry and may face expedited removal proceedings. Those seeking reentry have reportedly been asked to voluntarily depart or risk detention.

Venezuelan TPS. Kristi Noem, DHS Secretary, canceled the latest extension of Temporary Protected Status for Venezuelans, which will now end on April 1 or September 10, 2025, depending on when they arrived in the United States. USCIS said it “will invalidate EADs; Forms I-797, Notice of Action (Approval Notice); and Forms I-94, Arrival/Departure Record (collectively known as TPS-related documentation) that have been issued with October 2, 2026 expiration dates under the Mayorkas [TPS for Venezuelans] Notice. USCIS will provide refunds to any fees paid by these aliens as well.” USCIS said it “will provide additional guidance regarding the two Venezuela TPS designations on a future date in accordance with applicable laws.” There are more than 300,000 Venezuelans in the United States with TPS.

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2. CBP Clarifies Advance Parole Guidance; Practitioners Urge Caution

On January 22, 2025, U.S. Customs and Border Protection (CBP) clarified that an executive order to ““terminate all categorical parole programs that are contrary to the policies of the United States” does not apply to those arriving with a valid Form I-512 [advance parole] or those being processed for Significant Public Benefit Parole in coordination with federal law enforcement partners.

Even though the guidance clarified that adjustment of status applicants with a valid I-512 may be admitted, practitioners urge caution and recommend that employees maintain their underlying visa status and travel using valid H and L visas to the extent possible. Recommendations include:

• Consider deferring unnecessary travel until clear guidance, procedures, and training are in place for CBP officers at the various ports of entry.
• Those with “dual intent” H or L visas should present valid nonimmigrant visas to facilitate re-entry in lieu of relying on advance parole.
• If travel is necessary and there is no underlying H or L visa, it may be helpful to bring copies of CBP’s Regional Carrier Liaison Guidance until training is fully rolled out.
• Those in other nonimmigrant statuses that are not recognized as “dual intent,” such as O, E, F, and TN status, who have a Form I-485, Application to Register Permanent Residence or Adjust Status, application pending should be prepared to explain to CBP that admission in their nonimmigrant status may trigger the abandonment of a pending I-485 and continue to request admission pursuant to their valid advance parole.
• Those seeking to travel with parole documents should be prepared for longer periods of review and questioning in CBP’s Secondary Inspection and should be prepared to present relevant documentation upon request. For example, travelers presenting advance parole documents related to a pending I-485 application should confirm that their I-485 remains pending and travel with a copy of their I-485 receipt notice, as CBP often seeks to confirm whether the I-485 remains pending during secondary inspection.

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3. President Trump Orders Guantanamo Bay Expansion to ‘Full Capacity’

On January 29, 2025, President Trump issued a memorandum to the Secretaries of Defense and Homeland Security “to expand the Migrant Operations Center at Naval Station Guantanamo Bay to full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States, and to address attendant immigration enforcement needs identified by the Department of Defense and the Department of Homeland Security.” The memo states that this action is necessary “to halt the border invasion, dismantle criminal cartels, and restore national sovereignty.”

President Trump indicated that some migrants would be sent there indefinitely rather than being deported to their home countries: “We have 30,000 beds in Guantanamo to detain the worst criminal illegal aliens threatening the American people. Some of them are so bad we don’t even trust the countries to hold them, because we don’t want them coming back, so we’re going to send them to Guantanamo.”

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4. Scammers Are Impersonating ICE Officers and Local Police

In the current climate of aggressive deportations, scammers are attempting to cash in by impersonating U.S. Immigration and Customs Enforcement (ICE) officers and local police to scare naturalized U.S. citizens and immigrants into giving out information.

For example, on the NextDoor social media site, a posting stated that a naturalized U.S. citizen received multiple calls from purported ICE agents and the county police. The fake ICE agent informed him that there was an arrest warrant and asked about his bank account and other assets. The spoofed phone number matched the phone number on ICE’s actual website. The fake police detective called and gave the victim his badge number and name and stated that the police were coming to arrest him. The victim and his brother took steps to verify the information. The police did not have any detective or badge number matching the fake information.

Police or ICE agents will not call people before serving an arrest warrant and ask for personal or financial information. Also, scammers can mimic valid phone numbers. Such scams should be reported to the local police.

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5. The First Week: Round-Up of Key Trump Immigration Actions

As expected, there has been a flurry of immigration-related actions since President-elect Trump’s inauguration on January 20, 2025. Selected key highlights include:

• Wide-ranging Executive Order issued, “Protecting the American People Against Invasion.” On January 20, 2025, President Trump signed an Executive Order with a long list of effects. Included in the list is a revocation of various Biden administration orders and related guidance, memoranda, and policies; a focus on enforcement of orders of removal and the “prosecution of criminal offenses related to the unauthorized entry or continued unauthorized presence of aliens in the United States”; efforts to identify “unregistered illegal aliens”; the “the efficient and expedited removal of aliens from the United States”; the construction and operation of detention facilities; withholding of federal funds from “sanctuary” jurisdictions; “significantly increase the number of agents and officers available to perform the duties of immigration officers”; and other orders.
• The Executive Order, through federal-state agreement, also calls for authorizing state and local law enforcement officials “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary of Homeland Security.”
• The Executive Order also orders the Attorney General and the Secretary of Homeland Security to jointly establish “Homeland Security Task Forces (HSTFs)” in every state nationwide. The composition of each HSTF will “be subject to the direction of the Attorney General and the Secretary of Homeland Security, but shall include representation from any other Federal agencies with law enforcement officers, or agencies with the ability to provide logistics, intelligence, and operational support to the HSTFs, and shall also include representation from relevant State and local law enforcement agencies.” The objective of each HSTF is “to end the presence of criminal cartels, foreign gangs, and transnational criminal organizations throughout the United States, dismantle cross-border human smuggling and trafficking networks, end the scourge of human smuggling and trafficking, with a particular focus on such offenses involving children, and ensure the use of all available law enforcement tools to faithfully execute the immigration laws of the United States.”
• “Remain in Mexico” program relaunched. President Trump announced the relaunch of the Migrant Protection Protocols program, also known as “Remain in Mexico,” under which asylum seekers wishing to enter the United States via Mexico must remain in Mexico while their cases are processed. However, Mexico’s President, Claudia Sheinbaum, said Mexico has not agreed to accept non-Mexican asylum seekers. The program previously had been introduced by President Trump in 2019 but was discontinued by President Biden in 2021. Mexico said that it will welcome returning Mexicans and is setting up a “tent city” to house and tend to deportees. Also, after Colombia rejected two U.S. military planes carrying deported persons, President Trump ordered various “retaliatory” measures, including tariffs, visa sanctions, and travel bans. Colombia, which is the third largest trading partner with the United States in Latin America, countered with tariffs of its own. Among other things, imports from Colombia include coffee and cut flowers. Gustavo Petro, President of Colombia, said, “The U.S. cannot treat Colombian migrants as criminals,” and “[t]his measure responds to the [Colombian] Government’s commitment to guarantee dignified conditions. In no way have Colombians, as patriots and subjects of rights, been or will be banished from Colombian territory.”
• Refugee admissions program suspended; funding cut off. Effective January 27, 2025, an Executive Order suspends refugee admissions, with some exceptions on a case-by-case basis. The program will be reviewed in three months. As part of this effort, the Department of State (DOS) suspended funding to groups aiding refugees in the United States with housing, job placement, and other needs, Reuters reported. A letter from DOS said such agencies must stop all related work and “cancel as many outstanding obligations as possible.” Scheduled refugee arrivals were halted as a result, including nearly 1,660 Afghans who had been cleared to resettle in the United States, a group that includes Afghans at risk of retribution by the Taliban after fighting for the previous U.S.-backed Afghan government, family members of U.S. service members on active duty, and unaccompanied minors who had been scheduled to reunite with their families.
• “Finding of Mass Influx of Aliens” announced. On January 23, 2025, Benjamine Huffman, Acting Secretary of Homeland Security, declared that a “mass influx of aliens is arriving at the southern border of the United States and presents urgent circumstances requiring an immediate federal response.” The finding expires in 60 days unless extended.
• Directive expanding immigration law enforcement to some Department of Justice (DOJ) officials. On January 23, 2025, the Acting Secretary of Homeland Security issued a directive giving DOJ law enforcement officials in the U.S. Marshals, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and Federal Bureau of Prisons “authority to investigate and apprehend illegal aliens.”
• CBP One app shut down. The app allowed people to apply for asylum. Previously, asylum seekers were able to submit advance information and schedule appointments at eight southwest border ports of entry. All such appointments have been cancelled, U.S. Customs and Border Protection said.
• ‘Illegal alien’ terminology reinstated. The Department of Homeland Security reinstated official use of the term “illegal alien” over “undocumented noncitizen.”
• Birthright citizenship challenged. President Trump ordered birthright citizenship to be discontinued, but one court has already issued an injunction on the ground that such a move is unconstitutional.
• Deportations. Mass deportations at the anticipated scale have not yet begun, although activities such as arrests and flights with deported persons have been carried out, along with a call for the U.S. military to be deployed to the southern border, and the lifting of rules that restricted enforcement near sensitive areas like churches and schools. Mexico denied permission for the United States to fly a C-17 military transport aircraft land in Mexico with persons deported from the United States. Two similar flights with about 80 passengers each went to Guatemala. Meanwhile, immigrant advocacy organizations are putting out “know your rights” information.

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6. Senate Confirms Kristi Noem as Homeland Security Secretary

On Saturday, January 25, 2025, the U.S. Senate confirmed Kristi Noem as Secretary of Homeland Security. She will oversee U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement. She previously was governor of South Dakota. Ms. Noem also served in the South Dakota legislature and as South Dakota’s sole member of the U.S. House of Representatives.

President Trump separately appointed Tom Homan as “border czar.” It is unclear what role Mr. Homan will play in working with Secretary Noem.

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7. USCIS Waives COVID-19 Vaccination Requirement for Adjustment of Status Applicants

Effective January 22, 2025, U.S. Citizenship and Immigration Services (USCIS) is waiving “any and all requirements” that applicants for adjustment of status to permanent residence present documentation on their Form I-693, Report of Immigration Medical Examination and Vaccination Record, that they received the COVID-19 vaccination.

USCIS said it will not issue any Request for Evidence or Notice of Intent to Deny related to proving a COVID-19 vaccination or deny any adjustment of status application on that basis.

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8. Inauguration Eve: A Nation Holds Its Breath

President-elect Trump’s inauguration on January 20, 2025, is expected to usher in immigration-related actions of various kinds. What will actually happen and when, in the short term and over the long term? Only time will tell. Discussion and preparation on both sides have been wide-ranging. According to reports, highlights include:

• Deportations. The incoming “border czar,” Tom Homan, has said Chicago could be an early target for deportation operations, although later he appeared to walk that back following leaks of the details. Noting that a goal of the Trump administration is to create “shock and awe,” he also said “there’s gonna be a big raid all across the country. Chicago is just one of many places.” Sources said U.S. Immigration and Customs Enforcement has been putting agents in place and has readied plans to conduct operations in major cities starting shortly after inauguration. On January 18, Mr. Homan said that the incoming administration “hasn’t made a decision yet” about whether Chicago would be targeted first and is “looking at this leak and will make decision based on this leak. It’s unfortunate because anyone leaking law enforcement operations puts officers at greater risk.” President-elect Trump said earlier this weekend that mass deportations would “begin very early, very quickly,” adding that “I can’t say which cities because things are evolving. And I don’t think we want to say what city. You’ll see it firsthand.” In terms of priority, he said, “We have to get the criminals out of our country. And I think you would agree with that. I don’t know how anyone could not agree.” Sources have said that “sanctuary” jurisdictions would be targeted. In addition to Chicago, New York City, San Francisco, Miami, and Los Angeles have been mentioned.

According to CNN, in a briefing with senior Republican lawmakers on Sunday afternoon (January 19), Stephen Miller, chosen by President-elect Trump to be his deputy chief of staff for policy, confirmed “elements of a long-planned, sweeping suite of immigration actions, including Trump invoking a national emergency at the border as a way to unlock funding from the Defense Department for the administration’s use.” CNN also reported that President-elect Trump will “direct his administration to move to reinstate his first-term Migrant Protection Protocol policy, which is more commonly referred to as ‘Remain in Mexico.’ Trump will act to reinstate a series of his first-term immigration policy directives and actions that President Joe Biden rescinded on his own first day in office in 2021.”

It’s unclear when or how big deportation operations will be or where those slated for deportation will be taken. Also unclear is how much the operations will cost and how much legal pushback will occur.

• Wild card: state/legal actions. California and other states have not been passively awaiting the inauguration. California’s Governor Gavin Newsom and state Democrats, for example, reached agreement on a $50 million deal to defend against federal anti-immigrant efforts and detentions, and fund grants for nonprofits to help with legal issues and immigrant support. Related bills would need to pass the California Assembly. “This funding agreement cements California’s readiness to serve as a bulwark against Trump’s extremist agenda,” said Scott Wiener, a state senator and budget chair from San Francisco. United Farm Workers officials warned of “rogue” agents in California who appear to be already engaging in sweeps and arrests: “This is part of a new political climate of people in some of these agencies feeling emboldened.” Reportedly, in Trump’s first term, California spent at least $41 million suing the Trump administration. Some commentators predict a backlash against California from the Trump side on various fronts.

The New York City Comptroller’s Office released a report, Protecting New York City. Comptroller Brad Lander said that the possible “mass deportation of hundreds of thousands of New Yorkers” poses a “grave threat.” Comptroller Lander also led a roundtable of civic, business, labor, religious, and community leaders “to discuss how to best prepare to protect New York City and New Yorkers who may be targeted by the policies of the incoming Trump Administration.”

Organizations like the American Civil Liberties Union (ACLU) also have been working on legal strategies to fight mass deportations and protect immigrants. For example, the ACLU said it has plans to litigate against new mass detention centers and any erosions of due process for those facing deportation in the United States.

• H-1B visa feud. An intramural argument is going on within Trump circles and the Make America Great Again base related to H-1B nonimmigrant visas. Elon Musk—a multi-billionaire CEO of Tesla and SpaceX who has been named “richest man in the world” and helped bankroll the Trump campaign—favors the H-1B visa as a way to bring in global talent. According to one report, in 2024, “Tesla won 742 new H-1B visas through the lottery, more than double the 328 it secured in 2023. In addition, Tesla had another 1,025 existing H-1B visas extended in 2024.” Mr. Musk vowed to “go to war” with those who might try to block the visa program, noting that “The reason I’m in America along with so many critical people who built SpaceX, Tesla and hundreds of other companies that made America strong is because of H-1B.” On the anti-H-1B side, Steve Bannon, who has said the visas are a way for companies to undercut U.S. workers, called Mr. Musk a “toddler” and threatened him and other like-minded H-1B supporters that Mr. Bannon and allies would “rip your face off.” He also said Musk is trying to establish “techno-feudalism on a global scale.” President-elect Trump has recently seemed to lean in favor of the Musk side of the controversy, but it remains to be seen how this issue will play out.
• International students. President-elect Trump has commented on international students: ” If you graduate or you get a doctorate degree from a college, you should be able to stay in this country.”
• Effects on other industries. Effects of anti-immigrant efforts could also be felt in the construction, medical, and hospitality industries, among others. President-elect Trump has commented that he has a lot of employees at his properties on visas.
• Travel bans and extreme vetting. Also under discussion have been possible travel bans on certain groups, similar to former President Trump’s Muslim travel ban during his first term, and extreme vetting of visa applicants along with crackdowns on would-be immigrants trying to cross into the United States from Mexico.
• Temporary Protected Status (TPS) and humanitarian parole rollbacks. According to discussions, mass designations of TPS are likely to end. The President also has authority to revoke humanitarian parole. Legal challenges are expected if the Trump administration attempts to revoke TPS before it expires for designated countries.
• Effects on “Dreamers.” Although the previous Trump administration attempted unsuccessfully to end an earlier version of Deferred Action for Childhood Arrivals (DACA), President-elect Trump said more recently that he “will work with the Democrats on a plan” to protect Dreamers. He said that DACA Dreamers “were brought into this country…many years ago. Some of them are no longer young people. And in many cases, they’ve become successful. They have great jobs. In some cases they have small businesses. Some cases they might have large businesses. And we’re going to have to do something with them.”

It is impossible to overstate the complexity and uncertainty of the immigration situation in the United States today, or to predict outcomes. There are many more considerations and discussions afoot. Stay tuned.

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9. USCIS Updates Guidance on EB-2 National Interest Waivers

On January 15, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that it has updated its policy guidance to clarify how the agency evaluates eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW).

The new guidance explains that for advanced degree professionals seeking an NIW, USCIS considers whether the occupation in which the petitioner proposes to advance an endeavor is a profession and, if applicable, whether the five years of post-bachelor’s experience is in the specialty. The guidance also states that for persons of exceptional ability seeking an NIW, the exceptional ability must relate to the endeavor proposed as part of the NIW request. USCIS said it determines the relationship of exceptional ability to the proposed endeavor “on a case-by-case basis, considering any shared skillsets, knowledge, or expertise.”

In addition, the new guidance—which builds on a previous Policy Manual update that discussed the unique considerations for persons with advanced degrees in science, technology, engineering, and mathematics fields and entrepreneurs—provides information about how USCIS evaluates whether a proposed endeavor has national importance and explains how the agency evaluates evidence, such as letters of support and business plans, when determining whether a person is well-positioned to advance an endeavor.

This guidance, in Volume 6, Part F, Chapter 5 of the Policy Manual, applies to requests pending or filed on or after the publication date. The guidance is controlling and supersedes any related prior guidance, USCIS said.

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10. Filing Procedures Updated for Immigrant Petitions for Alien Workers

On January 13, 2025, U.S. Citizenship and Immigration Services (USCIS) announced updated procedures for submitting a Form I-140, Immigrant Petition for Alien Workers, accompanied by a permanent labor certification, application for Schedule A designation, or national interest waiver (NIW) request.

The instructions to Form ETA-9089 state that only a signed Final Determination must be submitted with the Form I-140 petition as evidence of permanent labor certification approval. USCIS noted that this “limited requirement is because, as a part of this process change, USCIS receives most of the information about the permanent labor certification directly from DOL under a data sharing agreement.”

USCIS said that employers whose labor certifications were processed in the FLAG system must include a printed copy of the electronic Final Determination with their Form I-140, and USCIS “will consider this printed copy as an original, approved labor certification.” The Final Determination “must be completed and electronically signed by DOL, and must be signed by the foreign worker, employer, and the employer’s attorney or agent, if applicable.” In addition, Form I-140 petitions for Schedule A occupations “must contain a completed, uncertified Form ETA-9089, including all applicable appendices, a signed Final Determination, and a valid prevailing wage determination tracking number in Section E, Item 1 of the Form ETA-9089.” Finally, a Form I-140 petition with an NIW request “must contain a copy of the Form ETA-9089, Appendix A, and a signed Final Determination,” USCIS said.

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11. USCIS Extends and Expands DED for Certain Hong Kong Residents in the United States

President Biden has extended Deferred Enforced Departure (DED) for eligible Hong Kong residents present in the United States on January 15, 2025, for two years, through February 5, 2027, and has ordered related extended work authorization for the same period.

In a memorandum, President Biden said there are “compelling foreign policy reasons” to extend DED for an additional period for those residents of Hong Kong presently residing in the United States who were under a grant of DED until February 5, 2025, as well as to defer enforced departure for other Hong Kong residents who arrived in the United States after the initial grant of DED.

The order also directs the Secretary of Homeland Security to “consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Hong Kong residents.”

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12. Appeals Court Rules DACA Is Illegal But Limits Ruling to Texas

On January 17, 2025, the U.S. Court of Appeals for the Fifth Circuit largely affirmed the judgment of a district court that the Deferred Action for Childhood Arrivals (DACA) program is illegal, but limited the ruling to Texas.

Previously, in 2022, the Fifth Circuit affirmed in part and remanded because the Department of Homeland Security (DHS) had cured a procedural defect in the DACA program by promulgating a final rule. A new appeal addressed that final rule. The district court found that Texas still had standing to challenge DACA and held that the final rule was substantively unlawful. The court accordingly vacated the rule, entered a nationwide injunction, and preserved the stay.

The Fifth Circuit said it largely agreed with the district court and thus affirmed its judgment, although it modified the remedial order. Among other things, the Fifth Circuit also limited the injunction to Texas and maintained the stay pending further appeal.

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13. Visa Bulletin for February Includes Details About March Expiration of EB-4 Religious Workers (SR) Category

The Department of State’s Visa Bulletin for February 2025 includes information about the expiration of the EB-4 Religious Workers (SR) visa category, among other developments.

According to the bulletin, no SR visas may be issued overseas, or final action taken on adjustment of status cases, after March 13, 2025. Visas issued before that date will be valid only until March 13, 2025, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by March 13, 2025.

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14. USCIS Updates O-1 Guidance on Extraordinary Ability Evidence

On January 8, 2025, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance, effective immediately, to clarify how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, including adding examples of evidence for individuals in critical and emerging technologies. The updated guidance aligns with President Biden’s Executive Order from October 2023, aimed at enhancing pathways for individuals working in artificial intelligence and other critical technologies.

The guidance:

• Explains that a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on the beneficiary’s behalf.
• Provides clarifying guidance regarding evidentiary criteria for O-1A and O-1B nonimmigrants.
• Adds examples of relevant evidence that may be submitted by an interested U.S. government agency.
• Provides an example of an occupational change within a technological field.
• Clarifies the circumstances under which USCIS limits an extension of stay to 1 year.

Practitioners have noted that the flexibility offered with this guidance may particularly benefit for entrepreneurs, startup founders, and self-employed individuals working in areas of extraordinary ability. The clarification of O-1 extension circumstances may also benefit those working in research and development as their projects progress and extend to subsequent phases.

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15. Cap Reached for Additional H-2B Returning Worker Visas; Petitioners Encouraged to File Under Country-Specific Allocations While Visas Remain Available

On January 10, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2025 with start dates on or before March 31, 2025. January 7, 2025, was the final receipt date for petitions requesting supplemental H-2B visas under this allocation.

USCIS said it is still accepting petitions for H-2B nonimmigrant workers with start dates on or before March 31, 2025, for the additional 20,000 visas allotted for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras (country-specific allocation), as well as those who are exempt from the congressionally mandated cap.

USCIS encourages petitioners whose H-2B workers with start dates on or before March 31, 2025, were not accepted for the 20,716 returning worker allocation to file under the country-specific allocation while visas remain available. As of January 7, 2025, USCIS had received petitions requesting 3,678 workers under the 20,000 visas set aside for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras.

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16. DHS Extends TPS for El Salvador, Sudan, Ukraine, and Venezuela

On January 10, 2025, the Department of Homeland Security (DHS) announced the extension of Temporary Protected Status (TPS) for El Salvador, Sudan, Ukraine, and Venezuela. [But see new Homeland Security Secretary Kristi Noem’s vacatur of the latest TPS extension notice with respect to Venezuela on February 3, 2025.]

El Salvador: The TPS extension is effective for 18 months, from March 10, 2025, to September 9, 2026. It allows approximately 232,000 current beneficiaries to re-register for TPS if they continue to meet eligibility requirements, U.S. Citizenship and Immigration Services (USCIS) said. Re-registration is limited to individuals who previously registered for and were granted TPS under El Salvador’s prior designation. USCIS will continue to process pending applications filed under previous TPS designations for El Salvador. Individuals with a pending Form I-821 or a related Form I-765, starting when the Federal Register notice is published, do not need to file either application again. If USCIS approves a pending Form I-821 or Form I-765 filed under the previous designation of TPS for El Salvador, USCIS will grant the individual TPS through September 9, 2026, and issue an Employment Authorization Document (EAD) valid through the same date. A Federal Register notice provides information about how to re-register for TPS under this extension.

Sudan: The TPS extension is effective for 18 months. It allows approximately 1,900 current eligible beneficiaries to re-register for TPS if they continue to meet eligibility requirements. Re-registration is limited to individuals who previously registered for TPS under Sudan’s designation. This includes nationals of Sudan (and individuals without nationality who last resided in Sudan) who have been continuously residing in the United States since at least August 16, 2023, with or without lawful immigration status. Both initial applicants and re-registering current beneficiaries who have a pending Form I-821 or Form I-765 do not need to file either application again. If USCIS approves an individual’s pending Form I-821, USCIS will grant them TPS through October 19, 2026. Similarly, if USCIS approves a pending TPS-related Form I-765, USCIS will issue the individual a new EAD valid through the same date.

Ukraine: The TPS extension is effective for 18 months. It allows approximately 103,700 current eligible beneficiaries to re-register for TPS if they continue to meet eligibility requirements. Re-registration is limited to individuals who previously registered for TPS under Ukraine’s designation. This includes nationals of Ukraine (and individuals without nationality who last resided in Ukraine) who have been continuously residing in the United States since at least August 16, 2023, with or without lawful immigration status. Both initial applicants and re-registering current beneficiaries who have a pending Form I-821 or Form I-765 do not need to file either application again. If USCIS approves an individual’s pending Form I-821, USCIS will grant them TPS through October 19, 2026. Similarly, if USCIS approves a pending TPS-related Form I-765, USCIS will issue the individual a new EAD that will be valid through the same date.

Venezuela: See new Homeland Security Secretary Kristi Noem’s vacatur of the latest TPS extension notice with respect to Venezuela on February 3, 2025.

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17. OFLC Publishes List of Randomized H-2B Applications

On January 6, 2025, the Office of Foreign Labor Certification (OFLC) announced that it has published the assignment groups for 8,759 H-2B applications covering 149,953 worker positions with a work start date of April 1, 2025.

OFLC said it completed the randomization process on January 4, 2025, and assigned to National Processing Center analysts all H-2B applications placed in Assignment Group A for issuance of Notices of Deficiency or Acceptance. That group includes enough worker positions to reach the H-2B semiannual visa allotment of 33,000.

On January 4, 2025, OFLC notified each employer (and the employer’s authorized attorney or agent) informing them about the Assignment Group for their application(s).

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18. Edakunni Settlement Agreement on Concurrent Adjudication Expires on January 18

A settlement agreement in Edakunni v. Mayorkas, effective for two years, is set to expire on January 18, 2025. Under the agreement, U.S. Citizenship and Immigration Services (USCIS) said it would bundle the adjudication of the Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) with the underlying Form I-129 (Petition for a Nonimmigrant Worker), where applicable, for H-4 and L-2 derivatives (e.g., dependent spouses) when these forms were properly filed together regardless of whether they were filed under standard or premium processing.

The agreement was seen as a way to help the spouses of H-1B and L-1 visa holders timely obtain work authorization.

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19. Romania Added to Visa Waiver Program

On January 10, 2025, the Department of Homeland Security (DHS), in consultation with the Department of State, announced the designation of Romania as a participating country in the Visa Waiver Program (VWP).

The U.S. Embassy in Romania said that U.S. Customs and Border Protection anticipates that the Electronic System for Travel Authorization (ESTA) online and mobile applications will be updated on or around March 31, 2025, to allow most citizens and nationals of Romania to apply to travel to the United States under the VWP for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. The embassy noted that these authorizations are generally valid for two years. Travelers with valid B-1/B-2 visas may continue to use their visas for travel to the United States, and B-1/B-2 visas will remain an option for Romanian citizens. The embassy said that U.S. citizens already can travel visa-free to Romania and stay there for up to 90 days for tourism or business purposes if they have a passport that is valid for at least three months from the date of arrival.

Romania is the 43rd member of the VWP and the fourth country added under DHS Secretary Mayorkas, after Croatia (2021), Israel (2023), and Qatar (2024).

The U.S. Embassy in Romania noted that ESTA applications may be accessed online or by downloading the “ESTA Mobile” application through the iOS App Store or the Google Play store.

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20. DHS Releases Statement on Immigration Safety and Enforcement During Los Angeles Area Fires

The Department of Homeland Security (DHS) released the following statement related to immigration enforcement in “protected areas” during the emergency response to the devastating fires in the Los Angeles area:

During emergency events, [DHS] works with its federal, state, local, and non-governmental partners to support the needs of the people in the areas that may be impacted.

In such circumstances, U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) remind the public that sites that provide emergency response and relief are considered protected areas. To the fullest extent possible, ICE and CBP do not conduct immigration enforcement activities at protected areas such as along evacuation routes, sites used for sheltering or the distribution of emergency supplies, food or water, or registration sites for disaster-related assistance or the reunification of families and loved ones.

At the request of [the Federal Emergency Management Agency] or local and state authorities, ICE and CBP may help conduct search and rescue, air traffic de-confliction and public safety missions. ICE and CBP provide emergency assistance to individuals regardless of their immigration status. DHS officials do not and will not pose as individuals providing emergency-related information as part of any enforcement activities.

DHS is committed to ensuring that every individual who seeks shelter, aid, or other assistance as a result of a natural disaster or emergency event is able to do so regardless of their immigration status.

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New Publications and Items of Interest

New immigration estimates and effects on employment in the United States: The Brookings Institution has released a report, New Immigration Estimates Help Make Sense of the Pace of Employment. The report considers recent immigration flows and their potential macroeconomic implications in the United States.

Know your rights. A number of organizations, including the Immigrant Legal Resource Center and Catholic Legal Immigration Network, Inc., have published resources highlighting immigrants’ rights in the United States, including “know your rights” information and what documents they may want to carry when traveling inside the United States.

E-Verify webinars: E-Verify has added a webinar with a focus on acceptable documents for Form I-9 verification, and has updated its calendar of webinars.

SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) has updated its calendar of webinars.

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

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ABIL Member / Firm News

Janice Flynn was quoted extensively by Irish News in Trump’s Citizenship Restrictions to Impact Children of Undocumented Irish, Warns U.S. Immigration Lawyer. Ms. Flynn, who offers U.S. immigration legal services in London and Dublin, said that birthright citizenship has been the “bedrock of our immigration law since the 14th amendment” to the U.S. Constitution. Ms. Flynn said that the amendment, which grants automatic citizenship to anyone born in the United States who is “subject to the jurisdiction thereof,” has been a “benefit” to the country: “It’s straightforward. If you’re in the United States, you give birth, you’re contributing to society, you need to have that confidence that your children are going to have status and they’re not going to be treated like second-class citizens.” For the estimated 10,000 to 50,000 Irish citizens living in the United States without legal status, revoking the amendment could limit their children’s involvement in society and “access to education, employment and healthcare.” She also talked about the fear factor: “I know there’s a lot of people who were from Ireland who work in the construction industry, so it sort of opens the lid on all of that. If they don’t have status, I’m wondering if they’ll think, ‘Oh well, I’m just giving up, I’m going to go back to Ireland’. It just feeds the fear. Unfortunately, it’s going to affect people of color more than anything. So maybe not so much the Irish, but I think a knock-on effect if they’re going after these industries, they get caught up in it.”

Charles Foster, Chairman of Foster LLP, was featured by WBUR and National Public Radio in a discussion of the latest actions and plans of the Trump administration regarding immigration. “President Trump and his advisers will clearly, as evidenced by the fact that he plans to sign a bunch of executive orders, will do that (deport criminal aliens) and a lot of things to give the impression that they’re doing more than what they can actually accomplish.” The full discussion on WBUR is available at Immigration attorney on Trump’s plans to tackle immigration this term | Here & Now.

José Perez, of Foster LLP, was interviewed by Houston Public Media, a service of the University of Houston, in Houston Attorney Says President Donald Trump Unlikely to Succeed in Removing Birthright Citizenship. He said that President Trump’s executive order abolishing birthright citizenship will “be challenged as soon as President Trump signs it. It will have no effect whatsoever, because again, it’s a constitutional protection. It’s a civil rights issue, really.” Regarding various actions President Trump has taken in his first week in office, Mr. Perez said, “If you’re undocumented, the first thing you need to do is not to sign anything if you’re detained by ICE, get yourself a lawyer, and then ask for a hearing before an immigration judge. You’re entitled to that. That’s due process.”

Loan Huynh was quoted by the Minnesota Post in Minnesota’s Farmers Are Increasingly Dependent on Foreign-Born Workers Who May Be Victims of Trump’s Immigrant Crackdown. She said that her firm provides farmers with hundreds of H-2A migrant workers every year, mostly from Mexico. “As our population grows, we need more workers and our farmers and agricultural workers are finding it harder to find these workers. U.S. workers don’t want to do this work.” She noted, “We are really concerned about an administration that has made it clear that immigration is something they want to decrease rather than increase.”

Klasko Immigration Law Partners, LLP, has published several client alerts: CBP Clarifies That Holders of Valid I-512 Advance Parole May Be Admitted to the United States; Uniting for Ukraine Parole Program Paused—Options Parolees May Have to Remain in the United States; and  President Trump’s Day One Immigration Executive Orders Summary.

Charles Kuck was quoted by State Affairs in Legislation Seeks Stiffer Penalties Against Cities Harboring Undocumented Immigrants. The article discusses Georgia’s Senate Bill 21, which would “waive sovereign and governmental immunities for local governments and their officials and employees for a violation of the prohibition on immigration sanctuary policies” and “require sheriffs, jailers, and deputies to honor immigration detainer requests issued by the Department of Homeland Security.” Mr. Kuck said the bill is “irrelevant”: “There are no sanctuary cities in Georgia. They’ve been illegal for years. This type of legislation is designed to be purely about politics. ‘Hey, look at me. I’m tough on immigration,’ because right now, they think people hate immigrants. That boat will turn around very quickly here when we start deporting people’s best friends and best workers.”

Mr. Kuck was quoted by Filter in DEA Cleared to Make Immigration Arrests as Mass Deportations Begin. He said that agencies other than the Department of Homeland Security “do not have authority to…start the removal proceedings, nor to physically deport [undocumented persons] from the United States. That happens in the venue of the immigration courts.” He warned, “What we’re gonna see is [U.S. Immigration and Customs Enforcement] and these collaborating federal agencies now being forced to go after mom and dad, grandma and grandpa. Folks who’ve been here for 20, 30 or 40 years.” He noted that “ICE already has a database of 1.5 million people with active deportation orders. Even if they focused only on them, they would be busy for the next four years.”

Mr. Kuck was quoted by Atlanta News First in Atlanta Immigration Attorney Explains What to Do if ICE Knocks on Your Door (article and video). He said, “We’ve been actively calming people’s fears since the day after the election, because anyone who really understood Trump knew all of this was coming.” Mr. Kuck noted, “ICE issues these things called ‘administrative warrants’ that do not have the power of law and do not allow entry into a property. They don’t satisfy the requirements of the fourth amendment. If they want to come in your house, they need a judicially signed warrant from a federal court judge. You simply say, ‘I’m not letting you into my house. I’m not speaking to you any longer and I’m calling my lawyer. Thank you.’ ”

Mr. Kuck was quoted by Axios in ICE Arrests Spark ‘Fear’ in Metro Atlanta Latino Communities. He said, “What I’m hearing is fear at a level that I have never seen, except perhaps after 9/11 in the Muslim communities. Fear, fear of losing the life they have, fear of sending their kids to school, fear of the future. And clearly, that’s Trump’s intention.” The report notes that Mr. Kuck “predicted Trump’s deportation plan isn’t realistic considering the time and resources spent planning, processing and adjudicating the arrests of undocumented immigrants, plus limited available space in metro Atlanta’s jails.”

Mr. Kuck was interviewed by WABE’s “Closer Look” in Georgia-Based Immigration Attorney Responds to ICE’s ‘Targeted Operations’ Across the Nation (article and audio). He talked about the unfolding situation and how his law firm is responding. He also said he believes it’s important for detainees to understand their rights and how they can protect themselves under the Constitution.

Mr. Kuck was featured in the Atlanta Journal-Constitution‘s “Politically Georgia” podcast, available on Spotify and Apple. He discussed the implications of President Trump’s decisions and what might come next.

Mr. Kuck was quoted by the Atlanta Journal-Constitution in In Georgia, Enforcement of Laken Riley Act Presents Complications. “This is not a bill that would have helped poor Laken Riley,” he said.

Mr. Kuck was quoted by the Union-Bulletin in Georgia Schools, Colleges Brace for Immigration Changes Under Trump. He said that although U.S. Immigration and Customs Enforcement (ICE) agents are allowed on public properties like schools and colleges, he does not think they will make arrests in such places: “I think the American public would react quite negatively to that, in that context and in the reality that we live in. I think Americans still have a soul and that we believe that everybody does deserve a second chance. So, I don’t see them doing it.” Mr. Kuck said he’s advising clients to know their rights. “If an ICE agent talks to you, you have no legal obligation to respond to them. You have no legal obligation to produce paper. You have no legal obligation to allow them into your house without a warrant signed by a judge. Even if you’re undocumented, every right in the Constitution is given to you…in your personal life,” he said.

Mr. Kuck was quoted by Deseret News in Faith Leaders Weigh In as Trump Puts Pause on Refugee Resettlement. He noted that President Trump’s order to abolish birthright citizenship would overrule the Supreme Court’s past ruling on the 14th Amendment, which the President does not have the power to do. It would be difficult for President Trump to prevail in court, Mr. Kuck predicted: “There’s no district court judge in the country who will overturn Supreme Court precedent, which exists on this issue. Actually, I don’t think there are four Supreme Court justices who will agree to hear this case.”

Mr. Kuck was quoted by U.S. News & World Report in What Is Birthright Citizenship, and Can Trump Take It Away? He said that for the Supreme Court to take up a case challenging President Trump’s birthright citizenship executive order, four justices would need to accept it. But, he said, “I have no doubt that every district court judge in the United States will say that this executive order is unconstitutional. There’s no doubt. Even Trump-appointed ones, I believe, will say that.” Mr. Kuck noted that the term “subject to the jurisdiction thereof” in the 14^th Amendment to the U.S. Constitution “was a widely used legal term in 1868. And everybody knew exactly what it meant, and it means diplomats. To say that it means anything else is completely contrary to history and to the facts.”

Cyrus Mehta and Kaitlyn Box have co-authored several new blog posts: Should Trump’s Lawyers Implementing Policies that Hurt Immigrants Be Concerned About Violating Their Ethical Obligations?; Trump’s Executive Order Restricting Birthright Citizenship Is So Unconstitutional That Even the Supreme Court May Reject It; and Biden’s USCIS Welcomes Entrepreneurs Through the H-1B and O Visas. Will Trump Do the Same?

Kaitlyn Box was promoted to Partner at Cyrus D. Mehta & Partners PLLC. She joins the leadership alongside Founder and Managing Partner Cyrus Mehta and Partner David Isaacson. Beyond her casework, Ms. Box has played a crucial role in the management of the firm. She has been instrumental in shaping recruitment decisions and advancing the firm’s technological capabilities, and was a key figure during the acquisition of Claudia Slovinsky and Associates on October 1, 2024. Additionally, Jessica Paszko was promoted to Senior Associate.

Mr. Mehta was quoted by the Times of India in End of Birthright Citizenship? What Donald Trump’s Order Means for Indian Americans. He said, “This [executive order] will obviously be challenged in court, but the [Trump] administration seems prepared to take it all the way to the Supreme Court, where a conservative majority may uphold it.”

Mr. Mehta was Chair of Practising Law Institute‘s Basic Immigration Law program on January 30, 2025, in New York City and webcast. He worked with distinguished panelists through the day who also contributed to the conference handbook.

Greg Siskind, of Siskind Susser PC, was quoted by the Times of India in End of Birthright Citizenship? What Donald Trump’s Order Means for Indian Americans. He called President Trump’s executive order “stunningly unconstitutional,” noting that the term “subject to the jurisdiction thereof” was meant to apply to diplomats.

Stephen Yale-Loehr, of Miller Mayer, LLP, was quoted by Vox in How Trump is Laying the Groundwork for Another Travel Ban. He said, “I think that [the Trump administration has] learned from their mistakes in the first administration, setting things up so that if they want to do a travel ban, it’s fairly likely to be upheld in court. He said he thinks that immigrants’ rights advocates “will try to find a friendly court to challenge whatever new travel ban comes out, and they may get an injunction. If the new travel ban is like the provision set forth in [President Trump’s] executive order, and like the travel ban that was upheld by the Supreme Court back in 2018, then I would predict that the Supreme Court would also uphold this travel ban.”

Mr. Yale-Loehr was quoted by Newsweek in Donald Trump Has Promised a ‘Golden Age’ for the U.S. Can He Deliver? He said, “With better-crafted [executive orders], courts may be less likely to issue injunctions. From a legal perspective [the executive orders] may more easily pass judicial scrutiny.” He noted that “[e]ven if Congress appropriates more money, it certainly is never going to be enough to deport millions of people” in a single term.

Mr. Yale-Loehr was quoted by the Miami Herald in Can Schools Turn Away ICE Officials? Agents Need Specific Warrant to Enter, Experts Say. Mr. Yale-Loehr said that for U.S. Immigration and Customs Enforcement (ICE) agents to enter schools and other sensitive locations, including hospitals and courthouses, agents need a judicial warrant: “That means a warrant issued by a judge, not an administrative warrant signed by an ICE official.” He explained, for example, that a judge might sign such a warrant for ICE agents to enter a school if a migrant student, staff member, or teacher is suspected of a crime. When asked whether school officials can turn away ICE agents, he said, “School officials can inform ICE agents that all agency inquiries must first be reviewed by the school district’s lawyers to make sure they comply with applicable privacy and other laws.” He noted that “[a]s a practical matter, ICE agents are unlikely to go to a school, for several reasons. First, obtaining a judicial warrant takes time. Second, ICE could get public blowback from arresting someone at a school.” (A recent highly publicized instance turned out to be Secret Service agents rather than ICE agents visiting an elementary school. A spokesperson said they were investigating threats against a government official.)

Mr. Yale-Loehr was quoted by the Financial Times in What It Would Take for America to Deport 11 [Million] Immigrants (subscription required). Individuals with outstanding deportation orders may be removed from the United States immediately, he noted, “[b]ut that is a relatively small number. Most people picked up will be put into deportation proceedings in immigration courts.”

Mr. Yale-Loehr was quoted by Vox in Mass Deportations Aren’t Here—Yet. He said, “We’re not going to see a significant increase in actual deportations this year, even with the Trump administration’s best efforts, simply for logistical and financial reasons. There will be some increase in actual deportations this year, but it’s not going to be millions of people.” He also noted that “practical challenges will make it difficult for Trump to quickly implement his campaign vision for mass deportations. But the reality of it may not matter so much as how the public perceives his agenda. What he’s trying to do is have a public relations campaign that sows fear and chaos among immigrant communities and assures his base that he is doing everything that he can to have increased immigration enforcement.”

Mr. Yale-Loehr was quoted by Law360 in Immigrant Rights Attorneys Set for Battle as Trump Returns. Commenting on immigrant advocacy groups’ pushing for legislation at the federal level to provide additional funding for deportation defense programs and provide a right to counsel in immigration courts, Mr. Yale-Loehr said such bills are a long shot: “Those bills are not going to be enacted any time soon … and even if they were, it would not solve the problem.”

Mr. Yale-Loehr was quoted by Newsday in Trump Signing Executive Orders on Immigration That Will Trigger Fear, Legal Challenges, Immigrant Advocates Say. Although the Supreme Court has not explicitly decided whether children of persons living in the United States without authorization are entitled to birthright citizenship, similar cases have ruled that those children are automatically U.S. citizens, he said. “Of all of the expected immigration orders, that one is the most likely to be struck down by the courts.” He said that even if President Trump is unsuccessful in court, the orders “will cause chaos and fear among immigrants. And that may be the main point if he hopes that people will self-deport back to their home countries.” Mr. Yale-Loehr noted that for asylum-seekers already in the country, the immediate impact of the orders may be limited because they have hearings pending in immigration court. “But if they have relatives overseas, those relatives may not be able to come to the United States, either through the refugee resettlement program or by trying to cross the border legally or illegally,” he said.

Mr. Yale-Loehr was quoted by Times Higher Education in “Dire Consequences”: Colleges in Crossfire of Trump Visa Debate. He said that discussions over H-1B work visas are tied into a wider debate around immigration. “H-1B work visas are a common way for international students to work in the United States after they graduate. If the Trump administration restricts H-1B visas, international students may be less likely to attend U.S. universities,” he said.

Mr. Yale-Loehr was quoted by Vox in What’s Actually in Congress’ Harsh New Immigration Bill? The article discusses the “Laken Riley Act,” named after a young woman killed by an undocumented person in February 2025. Mr. Yale-Loehr said, “The federal government will never have enough money or manpower to deport every undocumented noncitizen. Courts are not equipped to delve into the details of who to prioritize for deportation.” If the bill becomes law and survives legal scrutiny, he said, the “result is that courts would become the final arbiters of immigration policy.”

Mr. Yale-Loehr authored an article for the Cornell Law Forum: How Cornell Law is Helping to Fix America’s Broken Immigration System.

Mr. Yale-Loehr was quoted by the New York Times in Biden Issues Sweeping Deportation Protections Before Trump Takes Office. He said, “Because President Biden has extended protection for the nationals of all these countries [Sudan, Ukraine, Venezuela], President Trump will be unable to deport these individuals any time soon. Trump can’t ignore what Congress wrote into law in 1990.”

Mr. Yale-Loehr was quoted by PolitiFact in Are H-1B Holders Hired as Dog Trainers, Massage Therapists? Here’s What Bernie Sanders Misses. “It is too early to tell which side will prevail in this battle” over nonimmigrant work visas, he said. “People like Elon Musk want to preserve H-1B visas. Other Trump administration officials like Stephen Miller want to restrict all immigration, including H-1Bs.”

Mr. Yale-Loehr was quoted by BBC News (Delhi) in H-1B: Visa Row Under Trump Fuels Anxiety for Indian Dreamers. He said, “The first Trump administration tightened H-1B visas by increasing denial rates and slowing processing times, making it harder for people to get visas in time. It is unclear whether that will happen again in the second Trump administration. Some people like Elon Musk want to preserve the H-1B visas, while other officials in the new administration want to restrict all immigration, including H-1Bs. It is too early to tell which side will prevail.” With respect to what students aspiring for jobs in the United States should do, Mr. Yale-Loehr advised, “Any immigration changes in the U.S. will take time to implement. Students should pick the best college for them, wherever that may be. With good immigration counsel, they will be able to figure out what to do.”

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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In this issue:

1. DHS Publishes Temporary Final Rule to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2025 – The rule provides effective dates for the various allocations and details on what employers must do to qualify for the FY 2025 supplemental caps.

2. DHS Publishes Notice Designating Lebanon for TPS and Providing Special Student Relief – On November 27, 2024, the Department of Homeland Security published a notice designating Lebanon for Temporary Protected Status for 18 months. Accompanying the announcement is a Special Student Relief notice for F-1 nonimmigrant students from Lebanon.

3. DOJ Reaches Agreement With Restaurant Group to Resolve Immigration-Related Discrimination Claims – DOJ found that the restaurant group’s treatment of a worker was part of a larger practice of requesting documents from lawful permanent residents that were not required to prove their citizenship status.

4. OFLC Confirms Permanent Online System Is No Longer Available – The Foreign Labor Application Gateway System has been implemented to replace the legacy Permanent Online System.

5. Courts in Kentucky and Mississippi Issue Orders on Implementation of Farmworker Protection Final Rule – The Department of Labor’s Office of Foreign Labor Certification announced court orders issued by the Eastern District of Kentucky and Southern District of Mississippi associated with implementation of the 2024 Farmworker Protection Final Rule.

6. DHS Removed or Returned More Individuals in FY 2024 Than Any Year Since FY 2010 – The Department of Homeland Security is seeking to expand removal flights.

7. USCIS Announces New Classes of Admission for LPR Status and Work Authorization for Surviving Spouses and Children of Certain U.S. Government Employees Abroad – U.S. Citizenship and Immigration Services announced multiple new classes of admission (COAs) for the surviving spouses and children of certain deceased employees of the U.S. government abroad. Individuals with these COAs are lawful permanent residents and are authorized to work incident to status.

8. Planned Trump Mass Deportations Could Heavily Impact U.S. Farming – The Trump administration’s plans to deport millions of undocumented migrants currently in the United States could severely impact U.S. agriculture and thus reduce the food supply and raise grocery prices.

9. ACLU SoCal Files Suit to Obtain Info on ICE Air Operations Program in Light of Trump Mass Deportation Plans – ACLU SoCal said that the information sought “will shed critical light on [U.S. Immigration and Customs Enforcement’s] removal processes and help to inform the public of the risks that would result if [ICE Air Operations’] capacity is further built out.”

10. DHS Announces Countries Eligible for H-2A and H-2B Nonimmigrant Worker Programs – The announcement adds Belize to the list of countries eligible to participate.

11. DOL Recovers $1.4 Million in Back Pay and Damages From General Dynamics Subsidiary for Wage Violations – Dozens of Mexican workers brought into the United States from Mexico on L-1 visas were paid in Mexican pesos below the minimum wage. The Department of Labor found that the company owed $719,135 in unpaid minimum and overtime wages plus an equal amount in liquidated damages.

12. President-Elect Trump Names Future Officials for DHS and Border – President-elect Donald Trump has named several future cabinet and administration officials, including Kristi Noem as Secretary of Homeland Security and Thomas Homan as “Border Czar.”

13. President-Elect Trump Names Picks for Secretary of Labor, Attorney General – Continuing his rapid-fire announcements of cabinet picks, President-elect Donald Trump named his choices for several more positions.

14. DOL Proposes to Amend H-2B Regulations for Employer-Provided Wage Surveys – The Department of Labor proposes to amend the regulations consistent with recent federal litigation by clarifying existing requirements for employer-provided surveys for the H-2B program. DOL also proposes to add new requirements and eliminate Form ETA-9165.

15. DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2025 – The Department of Homeland Security, in consultation with the Department of Labor, expects to make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2025, on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year.

16. OFLC Releases Data From Employers and H-2B Foreign Labor Recruiter List – The Department of Labor’s Office of Foreign Labor Certification has released data and selected program statistics for the fourth quarter of fiscal year 2024, along with the foreign labor recruiters list for the H-2B program.

17. USCIS Updates Guidance on Advance Parole in Extensive FAQ for DACA Recipients – U.S. Citizenship and Immigration Services has updated its extensive list of frequently asked questions and answers on Deferred Action for Childhood Arrivals and the use of advance parole.

18. DOJ Reaches Agreement With Staffing Company to Resolve Immigration-Related Discrimination Claim – The agreement resolves the Department of Justice’s determination that Express Employment Professionals “discriminated against a worker because of her immigration status by refusing to continue to honor her valid document that showed her permission to work in the United States.”

19. DOS Releases Visa Bulletin for December – The bulletin includes information on final action dates for employment-based visa preference cases, dates for filing of employment-based visa applications, diversity visa (DV) updates for December, and DV category rank cut-offs for January 2025, among other things.

20. DOS Brings Exchange Program Alumni Entrepreneurs to United States for Creative Economy Residency – This year’s Institute included artists and their community partners from Iraq, Mexico, Nigeria, Türkiye, and Ukraine for an intensive two-week exchange program in the United States.

21. Immigration Medical Exam Documentation Valid Indefinitely for Certain Afghan Nationals – U.S. Citizenship and Immigration Services has updated guidance to reflect that immigration medical examination documentation for certain Afghan nationals who arrived in the United States during Operation Allies Welcome is valid indefinitely.

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 – December 2024

1. DHS Publishes Temporary Final Rule to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2025

The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), will publish a temporary final rule on December 2, 2024, making available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2025. This followed an announcement on November 15, 2024.

The temporary rule provides effective dates for the various allocations. The rule allocates 20,000 visas for workers from Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, and 44,716 supplemental visas for returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. “The regulation would allocate the supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal and other temporary workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season,” DOL said.

The rule notes that these visas “will be available only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer. In addition, DHS is again providing temporary portability flexibility.” The rule provides details on what employers must do to qualify for the FY 2025 supplemental caps.

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2. DHS Publishes Notice Designating Lebanon for TPS and Providing Special Student Relief

On November 27, 2024, the Department of Homeland Security published a Federal Register notice designating Lebanon for Temporary Protected Status (TPS) for 18 months. DHS initially announced the designation on October 17, 2024. The new notice provides information about how to register for TPS under this designation.

The designation allows an estimated 11,000 Lebanese nationals (and individuals having no nationality who last habitually resided in Lebanon) who have been continuously residing in the United States since October 16, 2024, and have been continuously physically present in the United States since November 27, 2024, to apply for TPS if they are otherwise eligible.

Individuals who want to request TPS under Lebanon’s designation must submit Form I-821, Application for Temporary Protected Status, during the initial registration period that runs from November 27, 2024, through May 27, 2026. Applicants may also apply for TPS-related Employment Authorization Documents (EADs) and travel authorization. DHS noted that an applicant can request an EAD by submitting Form I-765, Application for Employment Authorization, with Form I-821 or separately.

The Federal Register notice explains the eligibility criteria, timelines, and procedures necessary to apply for TPS and for an EAD. On October 17, 2024, U.S. Citizenship and Immigration Services also posted a Federal Register notice establishing procedures for Lebanese nationals covered by President Biden’s July 26, 2024, grant of Deferred Enforced Departure (DED) to apply for EADs that will be valid through January 25, 2026.

Accompanying the announcement is a Special Student Relief notice for F-1 nonimmigrant students whose country of citizenship is Lebanon, which enables eligible students to request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain F-1 status through the TPS designation period. The notice covers eligible Lebanese F-1 nonimmigrant students beginning November 27, 2024, and ending May 27, 2026.

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3. DOJ Reaches Agreement With Restaurant Group to Resolve Immigration-Related Discrimination Claims

The Department of Justice (DOJ) secured agreements in late November with a restaurant group and a trailer manufacturer to resolve immigration-related discrimination claims.

Restaurant Group

On November 26, 2024, DOJ announced that it secured an agreement with Anna Maria Oyster Bar Inc., a restaurant group based in Bradenton, Florida. The agreement resolves DOJ’s determination that the restaurant group “routinely discriminated against lawful permanent residents when checking their permission to work in the United States.”

DOJ explained that after conducting an investigation based on a worker’s complaint, the Civil Rights Division’s Immigrant and Employee Rights Section (IER) concluded that Anna Maria Oyster Bar had required a specific document—a Permanent Resident Card (green card)—from a worker to prove her citizenship status, even though she had already presented sufficient proof of her permission to work. IER also found that “the restaurant group’s treatment of this worker was part of a larger practice of requesting documents issued by the Department of Homeland Security, typically Permanent Resident Cards, from lawful permanent residents to prove their citizenship status.”

Under the terms of the settlement, Anna Maria Oyster Bar will pay a civil penalty of $12,684 to the United States, train its employees on the Immigration and Nationality Act’s (INA) requirements, revise its employment policies and be subject to DOJ monitoring.

Trailer Manufacturer

On November 25, 2024, DOJ announced that it secured a settlement agreement with Great Dane LLC (Great Dane) resolving DOJ’s determination that Great Dane’s plant in Wayne, Nebraska, violated the INA. For example, DOJ determined that even though the worker who filed the initial complaint provided sufficient information and documents to prove his permission to work (his state ID and unrestricted Social Security card), the company nevertheless wanted him to provide additional information from a Permanent Resident Card.

Under the terms of the settlement, DOJ said, the company will pay $218,000 in civil penalties to the United States and establish a backpay fund of $218,000 “to compensate victims of the company’s discriminatory practices, including those whom it failed to hire or who lost work because they could not comply with the company’s discriminatory document demands.” The agreement also requires Great Dane to train its personnel on the INA’s anti-discrimination requirements, revise its employment policies, and be subject to DOJ monitoring and reporting requirements.

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4. OFLC Confirms Permanent Online System Is No Longer Available

On December 1, 2024, the Department of Labor’s Office of Foreign Labor Certification (OFLC) confirmed that the legacy Permanent Online System, which provided public access to permanent labor certification applications and final determinations, is fully decommissioned and no longer available.

OFLC explained that the Foreign Labor Application Gateway (FLAG) System has been implemented to replace the legacy Permanent Online System, improve service, and modernize the administration of foreign labor certification programs. Pending applications will continue to be processed, but new users will be redirected to the FLAG System.

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5. Courts in Kentucky and Mississippi Issue Orders on Implementation of Farmworker Protection Final Rule

On November 27, 2024, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced court orders issued on November 25, 2024, by the Eastern District of Kentucky and Southern District of Mississippi associated with implementation of the 2024 Farmworker Protection Final Rule.

A preliminary injunction in the Kentucky case, Barton v. U.S. DOL, enjoins and restrains DOL from implementing, enacting, enforcing, or taking any action in any manner to enforce certain provisions of the final rule. In the Mississippi case, a decision in International Fresh Produce Association v. U.S. DOL stays the effective date of certain regulations in the Farmworker Protection Rule nationwide until the conclusion of proceedings in the case, including any appellate proceedings.

DOL said it will issue “additional information and guidance on its ongoing compliance and implementation of these orders as soon as possible.” Until that additional guidance is published, “as of November 27, 2024, employers (or an employer’s authorized attorney or agent) will be directed on the Foreign Labor Application Gateway (FLAG) System to prepare and submit H-2A job orders and Applications for Temporary Employment Certification using the forms applicable under the version of 20 CFR part 655, subpart B in effect on June 27, 2024,” DOL said [scroll to November 27, 2024].

Previously, the United States District Court for the Southern District of Georgia issued a preliminary injunction in Kansas U.S. DOL prohibiting DOL from enforcing the rule in certain states and with respect to certain entities. The affected states include Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, and Virginia. The entities include Miles Berry Farm and members of the Georgia Fruit and Vegetable Growers Association as of August 26, 2024. On August 28, 2024 and again on September 10, 2024, the Employment and Training Administration issued related announcements [scroll to November 27, 2024].

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6. DHS Removed or Returned More Individuals in FY 2024 Than Any Year Since FY 2010

On November 18, 2024, the Department of Homeland Security (DHS) said that it has removed or returned more individuals in FY 2024 than any year since FY 2010. From the implementation of President Biden’s Proclamation on June 4, 2024 (which temporarily suspended the entry of certain noncitizens across the southern border), through the end of October 2024, DHS has operated more than 640 international repatriation flights to more than 155 countries, including the People’s Republic of China (PRC), Colombia, Ecuador, Peru, Egypt, Mauritania, Senegal, Uzbekistan, and India. Efforts to expand removal flights continue, the agency said, noting that there has also been a more than 55 percent decrease in “Border Patrol encounters” since the proclamation was issued.

Meanwhile, DHS announced that on November 16, 2024, U.S. Immigration and Customs Enforcement conducted the third large-frame charter removal flight in less than six months to the PRC of Chinese nationals with no lawful basis to remain in the United States.

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7. USCIS Announces New Classes of Admission for LPR Status and Work Authorization for Surviving Spouses and Children of Certain U.S. Government Employees Abroad

On November 25, 2024, U.S. Citizenship and Immigration Services (USCIS) announced multiple new classes of admission (COAs) for the surviving spouses and children of certain deceased employees of the U.S. government (USG) abroad. Individuals with these COAs are lawful permanent residents and are authorized to work incident to status.

The previous and current COAs include:

• SS1—Surviving spouse or child of deceased USG employee (Arrival)
• SS2—Spouse of SS1 surviving spouse (Arrival)
• SS3—Child of SS1 surviving spouse or child (Arrival)
• SS6—Surviving spouse or child of deceased USG employee (Adjustment)
• SS7—Spouse of SS6 (Adjustment)
• SS8—Child of SS6 unrelated to deceased USG employee (Adjustment)

• GS1—Certain surviving spouses or children of USG Significant Immigrant Visa employee under the Grateful Act (an individual with a GV1 COA) (Arrival)

• GS2—Current spouse of GS1 (if any) (Arrival)
• GS3—Unmarried child of GS1 (if any) (Arrival)
• GS6—Certain surviving spouses or children of GV1 eligible person (Adjustment)
• GS7—Current surviving spouse of GS1/GS6 (if any) (Adjustment)
• GS8—Unmarried child of GS1/GS6 (if any) (Adjustment)

Systematic Alien Verification for Entitlements (SAVE) will provide an initial verification response of “Lawful Permanent Resident—Employment Authorized” for these classes of admission, USCIS said.

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8. Planned Trump Mass Deportations Could Heavily Impact U.S. Farming

According to reports, the Trump administration’s plans to deport millions of undocumented migrants currently in the United States could severely impact U.S. agriculture, among other industries, and thus reduce the U.S. food supply and raise grocery prices.

For example, in an ABC News report, Mass Deportations Could Upend Agriculture Industry, correspondent Martha Raddatz interviewed farm owners in California’s Central Valley, which produces 25 percent of the U.S. food supply. According to the report, the Department of Agriculture has estimated that about half of U.S. farmworkers do not have legal status. In the Central Valley, that constitutes more than 330,000 workers, according to estimates.

One farmer, Joe Del Bosque, said that his farm’s labor supply was already stretched thin and that they cannot afford a labor shortage. He noted that when there have been labor shortages, crops have been unharvested and lost. Mr. Del Bosque said that U.S. citizens do not want to perform that type of work in “extreme conditions” like 100+-degree heat and dust. He said California grows about 50 percent of the fruits, vegetables, and nuts for the entire country.

The head of a farmers and farmworkers trade association in the Fresno area, Manuel Cunha, Jr., said that California pays some of the highest wages in the nation for farm work, but U.S. citizens still will not apply, so higher pay is not the issue. He attributed U.S. citizens’ unwillingness to perform farm work to the toughness of the work: “It ain’t gonna happen. They’re not going to get up at 4 or 5 a.m. in the morning, drive to the field, and pick fruit.” He also distinguished between undocumented migrants who are criminals and those who are otherwise law-abiding and in some cases have been working in the United States for decades without incident.

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9. ACLU SoCal Files Suit to Obtain Info on ICE Air Operations Program in Light of Trump Mass Deportation Plans

On November 18, 2024, the American Civil Liberties Union (ACLU) SoCal, joined by Mayer Brown LLP, filed a lawsuit in Los Angeles, California, to obtain information on U.S. Immigration and Customs Enforcement’s (ICE) Air Operations (IAO) program following an unsuccessful Freedom of Information Act (FOIA) request submitted in August 2024.

President-elect Trump plans to declare a national emergency so he can use the U.S. military, including the National Guard and other U.S. troops, to support his mass deportation plans. Kyle Virgien, senior staff attorney for the ACLU’s national prison project, said, “For months, the ACLU has been preparing for the possibility of a mass detention and deportation program, and FOIA litigation has been a central part of our roadmap. A second Trump administration underscores the urgency of our litigation.”

In its suit, ACLU SoCal said that President-elect Trump’s “stated plan to arrest noncitizens on a vast scale and operate around-the-clock deportation flights using [IAO] has rendered the public’s interest in the matter all the greater.” Specifically, the lawsuit “seeks disclosure of records related to [IAO] from the period of January 1, 2023 through the present, including, but not limited to, contracts for operating removal flights and ground transportation to removal flights, and internal policies and procedures for staging, staffing, and handling flights, including those with unaccompanied children.”

IAO is ICE’s primary air transportation division. IAO “facilitates the transfer and removal of noncitizens via commercial airlines and chartered flights in support of ICE field offices and Department of Homeland Security (DHS) initiatives.” ACLU SoCal noted that “ICE continues to withhold from the public key information about the millions of taxpayer dollars that it funnels to private third parties to operate [IAO] with little public oversight or transparency.” The suit notes that “[o]ver the past few decades, the institutional infrastructure behind these flights has shifted from a government-run operation by the U.S. Marshals Service on government planes, to a sprawling and opaque network of flights on privately-owned aircraft chartered by [IAO]. Despite the critical role these flights play in the removal system—in many instances, serving as the mechanism for deportation—[IAO] remains shrouded in secrecy.” ACLU SoCal said that the information sought “will shed critical light on ICE’s removal processes and help to inform the public of the risks that would result if [IAO’s] capacity is further built out.”

ACLU SoCal is a nonprofit affiliate of the national ACLU Foundation and has more than 120,000 members.

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10. DHS Announces Countries Eligible for H-2A and H-2B Nonimmigrant Worker Programs

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B nonimmigrant worker visa programs for the next 12 months.

The announcement adds Belize to the list of countries eligible to participate in those programs and does not remove any country previously designated as eligible. (Mongolia and the Philippines are eligible to participate in the H-2B program but not the H-2A program. Paraguay is eligible to participate in the H-2A program but not the H-2B program.)

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11. DOL Recovers $1.4 Million in Back Pay and Damages From General Dynamics Subsidiary for Wage Violations

On November 19, 2024, the Department of Labor’s (DOL) Wage and Hour Division (WHD) announced that it has recovered more than $1.4 million in back pay and damages from a General Dynamics subsidiary, National Steel and Shipbuilding Co. (NASSCO), in San Diego, California, on behalf of 36 Mexican engineer employees. NASSCO paid the employees in Mexican pesos at a rate below the federal minimum wage.

NASSCO brought the engineers into the United States via the L-1B visa program from a General Dynamics subsidiary in Mexicali, Mexico, to install power plants, engines and machinery; complete structures; and finish and furnish ship interiors.

According to DOL, NASSCO “paid the engineers in pesos at Mexican pay rates to work an average of 42 hours or more weekly.” WHD also determined that NASSCO “wrongfully treated the traveling workers’ per diem and lodging costs as wages and did not maintain accurate time records for them. Investigators found that NASSCO owed the 36 engineers $719,135 in unpaid minimum and overtime wages, plus an equal amount in liquidated damages.”

DOL noted that NASSCO, which is headquartered in San Diego, operates shipyards in Norfolk, Virginia; and Bremerton, Washington; and Mayport in Jacksonville, Florida. Its parent company, General Dynamics, is an aerospace and defense contractor employing more than 100,000 people worldwide that generated $42.3 billion in revenue in 2023.

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12. President-Elect Trump Names Future Officials for DHS and Border

President-elect Donald Trump has named several future cabinet and administration officials, including, among others, Secretary of Homeland Security: Kristi Noem and “Border Czar” Thomas Homan. He also nominated Sen. Marco Rubio (R-Fla.) for Secretary of State. As of press time, the Secretary of Labor had not yet been nominated.

Ms. Noem, who is governor of South Dakota, is expected to be vetted by the Senate as part of the nomination process. Mr. Homan is a former acting director of U.S. Immigration and Customs Enforcement under the previous Trump administration. His duties and his relationship to DHS are unclear, since “border czar” does not appear to be a cabinet position. Mr. Trump said on his Truth Social platform that Mr. Homan will be “in charge of our Nation’s Borders (“The Border Czar”), including, but not limited to, the Southern Border, the Northern Border, all Maritime, and Aviation Security.” It is possible he may serve in an advisory role. Mr. Rubio is expected to leave his Senate seat if confirmed as Secretary of State.

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13. President-Elect Trump Names Picks for Secretary of Labor, Attorney General

Continuing his rapid-fire announcements of cabinet picks, President-elect Donald Trump named Rep. Lori Chavez-DeRemer (R-Ore.) as his choice for Secretary of Labor on November 22, 2024. She is described as “moderate” and “union-friendly,” although reactions were mixed. She served on the House of Representatives’ Education and the Workforce Committee, among other assignments. Rep. Chavez-DeRemer was favored by the head of the Teamsters Union, Sean O’Brien, but the AFL-CIO scored her at only 10 percent for her legislative record in 2023. The Senate is expected to consider her nomination in January after the new Congress convenes.

President-elect Trump has also named his picks for various other key positions. Most recently, he named Pam Bondi for Attorney General, heading the Department of Justice, after Matt Gaetz, who was Trump’s first pick for Attorney General, withdrew following a swirl of controversy. Ms. Bondi, formerly Florida’s Attorney General, has also served as a defense lawyer and legal advisor on Trump’s legal team and headed legal activities for the America First Policy Institute.

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14. DOL Proposes to Amend H-2B Regulations for Employer-Provided Wage Surveys

The Department of Labor (DOL) proposes to amend its regulations for employer-provided wage surveys for the H-2B temporary labor certification program. The regulations were published in 2015 in the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program Final Rule.

DOL proposes to amend the regulations consistent with recent federal litigation by clarifying existing requirements for employer-provided surveys for the H-2B program. DOL also proposes to add new requirements and eliminate Form ETA-9165, Employer-Provided Survey Attestations to Accompany H-2B Prevailing Wage Determination Request Based on a Non-OEWS Survey.

Comments are due by January 17, 2025.

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15. DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2025

On November 15, 2024, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced that it expects to make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2025, on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year, as it has done in years past.

“The supplemental visa allocation will help address the need for seasonal and temporary workers in areas where too few U.S. workers are available, willing and qualified to do the temporary work and address the labor needs of American businesses,” including in hospitality and tourism, landscaping, seafood processing, and other industries, DOL said.

The H-2B supplemental rule would include an allocation of 20,000 visas for workers from Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, and a separate allocation of 44,716 supplemental visas for returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. “The regulation would allocate the supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal and other temporary workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season,” DOL said.

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16. OFLC Releases Data From Employers and H-2B Foreign Labor Recruiter List

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released data and selected program statistics for the fourth quarter of fiscal year 2024, along with the foreign labor recruiters list for the H-2B program. The releases include:

• A comprehensive set of public disclosure data drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3),
  H-2A, H-2B, CW-1, and Prevailing Wage programs. OFLC noted that it recently implemented the revised form ETA-9089. As a result, there will be two distinct PERM disclosure data files. These files will each have their own record layout documents. The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2023, through September 30, 2024, reporting period.
• Selected program statistics for the fourth quarter of fiscal year 2024 for the PERM, LCA (H-1B,
  H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
• An updated list of the names of foreign labor recruiters for the H-2B program, and related frequently asked questions. The list contains the name and location of persons or entities identified on Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B application. The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during the October 1, 2023, through September 30, 2024.

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17. USCIS Updates Guidance on Advance Parole in Extensive FAQ for DACA Recipients

U.S. Citizenship and Immigration Services (USCIS) has updated its extensive list of frequently asked questions and answers (FAQ) on Deferred Action for Childhood Arrivals (DACA) and the use of advance parole. Generally, USCIS said, it will issue an advance parole document if the DACA recipient wants to travel outside the United States for:

• Humanitarian purposes, including to obtain medical treatment, attend funeral services for a family member, or visit an ailing relative;
• Educational purposes, such as semester abroad programs and academic research. Travel for educational purposes means travel affiliated with an institution that provides education as its primary purpose. A DACA recipient does not need to be enrolled in the institution with which the program is affiliated but must be enrolled in the program they will be traveling with; or
• Employment purposes, such as overseas assignments, interviews, conferences, trainings, consular appointments for an employer-sponsored nonimmigrant visa, or meetings with clients overseas.

Travel for vacation is not a valid basis for advance parole, USCIS said.

The FAQ also includes a summary of DACA-related court decisions, and examples of documents to submit to demonstrate that the applicant meets the threshold criteria for DACA.

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18. DOJ Reaches Agreement With Staffing Company to Resolve Immigration-Related Discrimination Claim

On November 15, 2024, the Department of Justice (DOJ) announced that it has reached a settlement agreement with Key Fortune, Inc., doing business as Express Employment Professionals (Express), a staffing company in Rancho Cucamonga, California. The agreement resolves DOJ’s determination that Express “discriminated against a worker because of her immigration status by refusing to continue to honor her valid document that showed her permission to work in the United States.” DOJ said the agreement also resolves the agency’s determination “that Express refused to place her on an assignment until she presented a specific document showing her future permission to work.”

Under the terms of the settlement, Express will pay a civil penalty of $2,200 to the United States and pay the worker backpay of $1,748.45 plus interest, less any tax withholding required by law. The agreement also requires the company to train its personnel on the anti-discrimination requirements, review its employment policies, and be subject to departmental monitoring.

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19. DOS Releases Visa Bulletin for December

The Department of State (DOS) has released the Visa Bulletin for December 2024.

The bulletin includes information on final action dates for employment-based visa preference cases, dates for filing of employment-based visa applications, diversity visa (DV) updates for December, and DV category rank cut-offs for January 2025, among other things.

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20. DOS Brings Exchange Program Alumni Entrepreneurs to United States for Creative Economy Residency

On November 15, 2024, the Department of State (DOS) announced that as part of its Global Music Diplomacy Initiative, which “elevates music as a platform for promoting peace and democracy,” DOS hosted the OneBeat Institute’s “Resilient Futures” residency from October 27 to November 7, 2024. This year’s Institute included five teams of OneBeat alumni and their community partners from Iraq, Mexico, Nigeria, Türkiye, and Ukraine for an intensive two-week exchange program in the United States. “Through project-specific mentorship and strategic support, these creative leaders refined their vision, developed curricula, crafted business and multi-year plans —advancing their capacity to enrich the creative economies in their home countries,” DOS said.

The visiting exchange program alumni included composers, curators, musicians, graffiti artists, and filmmakers. They began with a weeklong residency in upstate New York, where they “presented unique entrepreneurial music and civic projects, engaged in organizational and creative exercises, and met with guest artists and advisors.” The program continued in New York City, where they “deepened their collaboration by engaging in peer-to-peer learning and receiving professional mentorship from U.S.-based leaders across business, arts, culture, technology, and education sectors.”

Launched in 2012, OneBeat began as an annual U.S.-based residency and tour program, bringing together early-career musicians from around the world to collaboratively create, perform original music, and develop innovative strategies for arts-driven civic and social engagement. Over the past 12 years, OneBeat has expanded from a single annual residency into a dynamic array of year-round initiatives, including global residencies and tours, a virtual residency, an artist-industry incubation program, a podcast, and an alumni micro-grant accelerator program.

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21. Immigration Medical Exam Documentation Valid Indefinitely for Certain Afghan Nationals

U.S. Citizenship and Immigration Services (USCIS) announced in a policy alert that it has updated guidance in its Policy Manual to reflect that immigration medical examination documentation for certain Afghan nationals who arrived in the United States during Operation Allies Welcome (OAW) is valid indefinitely. USCIS said this means that those who arrived in the United States during OAW and meet certain conditions will not have to repeat an immigration medical examination when they apply to adjust their status to lawful permanent residence.

This updated guidance is effective as of November 13, 2024, and applies to any Form I-485, Application to Register Permanent Residence or Adjust Status, that is pending or filed on or after that date.

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has published a new client alert: Election 2024: Immigration Implications for Employers, Employees, and Investors.

Cyrus Mehta and Kaitlyn Box co-authored several new blog posts: Ethical Obligations of the Attorney to Safeguard Information About a Client’s Whereabouts With a Removal Order Under Trump 2.0; Biden’s Last and Best Gift to Legal Immigrants: Advancing the Filing Dates in the 2025 January Visa Bulletin to Current; and Saving America by Defending Clients Against Trump’s Immigration Policies.

Mr. Mehta was quoted by Bloomberg Law in Parole Program for U.S. Citizens’ Spouses Found Unlawful. Even if an appeal of a federal judge’s decision to strike down the Biden administration’s “parole in place” program for undocumented spouses of U.S. citizens were filed, it would likely be quickly withdrawn by the new administration, he said: “It puts the final nail in the coffin with regards to parole-in-place.”

Mr. Mehta, Charles Kuck, and Adam Cohen, of Siskind Susser PC, were quoted by the Times of India in The Writing on the Wall is Clear: Tighter H-1B Norms on Anvil, Perhaps With Wage-Hikes and Stiffer Vetting of Applications. Mr. Cohen said, “If a wage hike is announced for H-1B workers and allotment is linked to the highest wages, it would badly impact international students. F-1 students typically transition to an H-1B and earn the lowest range of salary in the initial years of their career.” Mr. Kuck said, “Prepare for major H-1B changes: a lottery based on wages, higher filing fees, and stricter enforcement against job shops. Expect higher denial rates, longer processing times, no immigration reform, no increase in green card allotments, no changes to the 7% per-country limit, and possibly reduced legal immigration.” Mr. Mehta said that the Trump administration “could make it more difficult for employers to renew H-1B visas by requiring artificially high wages and making it harder to prove that the job qualifies as a specialty occupation for H-1B classification.”

Mr. Mehta and Greg Siskind, of Siskind Susser PC, were quoted by the Times of India in Citizenship by Birth to be Curtailed by Incoming U.S. President Trump, Will Impact 1 Million Indians in Green Card Queue. Mr. Mehta said, “If a child whose parents are in H-1B status is not issued a U.S. birth certificate, they can seek review in federal court and should win. The Trump administration is capable of taking the case to the Supreme Court to test their theory, but even if the Supreme Court has Trump-appointed justices, it does not mean that they will abide by the policies of the Trump administration if they are in direct contradiction to the U.S. Constitution.” Mr. Siskind said, “This will certainly be litigated as it violates the 14^th Amendment. We will have to see if they go so far as to exclude children of people legally in the U.S.”

Cyrus Mehta and Stephen Yale-Loehr were quoted by the Times of India in Indian IT Companies Brace for Tighter Visa Guidelines. Mr. Mehta said he could see the Trump administration tightening legal immigration even though their focus so far has been on people coming through the border. “Indian IT firms will be impacted, and we already got a taste of that during the last Trump administration,” he said. Mr. Mehta noted that the Trump administration could issue regulations requiring higher wages for H-1B workers that may be well above market wages and could impose even higher filing fees. “The administration can also insist on specific contracts between the IT firm and the client when H-1B workers are placed at client sites, and if they approve the H-1B petition, can limit the validity period [until] the end date of the contract or work order with the third-party client.” Mr. Yale-Loehr said that both legal and undocumented immigrants could be hurt by a second Trump administration. “During his first term in office, Donald Trump hurt H-1B workers by restricting who could qualify, slowing down processing times, and issuing more denials. He is likely to do that in his second administration.” He also noted that a second Trump administration may try to make it harder for international students to work temporarily in the United States after they graduate. “Moreover, because there are more conservative judges now than before, litigation to stop such efforts may be less likely to succeed,” he said.

Mr. Yale-Loehr was quoted by Newsweek in Trump Team Eyes Using State And Local Police For Immigration Enforcement. He noted that a potentially applicable 1996 immigration law was not intended to allow local law enforcement to round up anyone suspected of living in the United States without authorization. “It’s not geared for local cops to go into a factory and see if they can find some undocumented immigrants to pick up,” he said.

Mr. Yale-Loehr was quoted by the Boston Globe in College Campuses Scramble to Protect Foreign and Undocumented Students Under Trump (subscription required). Most colleges are working “more behind the scenes than in 2017 because they fear that the new administration may put a target on their backs if they do so publicly,” he said.

Mr. Yale-Loehr moderated a webinar, Immigration Reform in 2025: What is Possible?, on November 20, 2024, at 1 p.m. ET. Mr. Yale-Loehr and a panel of experts from the Cornell Law School immigration law and policy research program discussed what immigration laws and policies might change, both in the lame-duck session after the election and in 2025.

Mr. Yale-Loehr spoke on a recent webinar, “Preparing for Change: How the New Administration Could Impact DACA Recipients.” The webinar focused on preparing Deferred Action for Childhood Arrivals (DACA) recipients for the potential impact of the new administration, with discussions on available immigration remedies, support and resources, and potential changes to employment-based options. The speakers also addressed the ongoing legal challenges to the DACA program, the importance of renewing DACA status, and the exploration of legal options for undocumented noncitizens. The conversation ended with a discussion on resources available for general educational purposes and the importance of self-care and community support. The webinar recording and slides are now available.

Mr. Yale-Loehr was quoted by the Canadian Broadcasting Corporation in Trump Wants to Use a 226-Year-Old Law to Deport Millions of Undocumented Migrants. Can He Do It? He said, “If Trump were to try to use the normal procedures, it would [be to] round up a lot of people and put them into immigration court proceedings. But it would be a long time before they could actually be deported.” During those proceedings, an immigration judge would decide whether those individuals were deportable or entitled to some type of relief from deportation, such as asylum, he said. Due to backlogs, “[m]any cases are being scheduled for four or five years from now,” Mr. Yale-Loehr noted, adding that if the future President Trump follows current deportation procedures, he would need money to hire more judges and immigration agents, and build more detention centers.

Mr. Yale-Loehr was quoted by the South China Morning Post in Trump Names Architects of His Promised Mass Deportation Policy. Citing the due process clause of the U.S. Constitution, he said that “people have a right to a hearing before they can be deported. If they have applied for asylum, that means they’re in immigration court and they cannot be summarily deported without finding out whether their asylum claim is valid.” Mr. Yale-Loehr said that the Trump administration “will have to ask Congress for more money to hire more ICE agents, to create more detention camps, to pay for planes, etc., so you’re not going to see a lot of mass deportations on Day One.” He also noted that immigration courts are facing massive backlogs: “We already have 3.7 million cases in immigration court.”

Mr. Yale-Loehr was quoted by Newsweek in Democratic Governor Pledges Deportation Rebellion. He said that “so-called sanctuary policies” mean police “will not cooperate with federal immigration officials to turn over immigrants accused of crimes.” “Such cities and states may use those policies to prevent mass arrests,” he said. The first Trump administration “threatened to deprive so-called sanctuary jurisdictions of federal funding if they failed to cooperate with immigration agents. States and cities fought back, tying up the Trump administration’s efforts in litigation. With more conservative judges now, it is unclear whether such lawsuits will succeed again.”

Mr. Yale-Loehr was quoted by the Chronicle of Higher Education in What Trump’s Threats of Mass Deportation Could Mean for Higher Ed (registration required). He said that although it is important to take Trump’s stances seriously, “there’s a big difference between rhetoric and due process.” According to Mr. Yale-Loehr, there is a current backlog of 3.6 million deportation cases in the immigration courts. “Trump just can’t round up students and put them on a plane.” He said that college legal clinics could be a resource for concerned students. The article notes that a project run by Cornell University has counseled nearly 700 Deferred Action for Childhood Arrivals recipients, 60 percent of whom were identified as having a path to a skilled-work visa or other status.

Mr. Yale-Loehr was quoted by Digital Journal in Trump Mass Deportation Pledge Faces Legal, Economic Barriers. He said, “Rhetoric is one thing. Actual implementation is something else. The Constitution provides due process for everyone in the country, not just U.S. citizens, so Trump cannot just round up people and send them out of the country the next day. There already is a backlog of over 3.6 million cases in our immigration courts.”

Mr. Yale-Loehr was quoted by The Appeal in Stopping Trump’s Anti-Immigrant Agenda Will Be Harder This Time. “What scares me about another Trump term on immigration? Everything,” he said. “We saw how much Trump hurt immigrants in his first administration: the Muslim travel ban, family separations, increased delays in processing routine cases. He will hurt immigrants even more if he’s reelected, with devastating impacts on the U.S. economy, workers, and families.”

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS case processing times online: https://egov.uscis.gov/processing-times/

Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

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