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ABIL Immigration Insider • July 7, 2024

July 07, 2024/in Immigration Insider /by ABIL

In this issue:

1. Liberian DED Extended Through June 2026 – President Biden has extended through June 30, 2026, deferred removal for Liberians with a grant of Deferred Enforced Departure (DED). President Biden also announced that eligible Liberian nationals will have continued work authorization through June 30, 2026.

2. DHS Releases Details on Haiti TPS Extension and Redesignation, Work Authorization for Haitian F-1 Students – The Department of Homeland Security released additional details about the extension and redesignation of Haiti for Temporary Protected Status (TPS) through February 3, 2026. Given the timeframes, U.S. Citizenship and Immigration Services automatically extended through August 3, 2025, the validity of certain employment authorization documents issued under the TPS designation for Haiti and having the expiration dates listed in the notice.

3. DHS Raises Civil Penalties for Certain Violations – The Department of Homeland Security has raised civil monetary penalties for certain violations based on inflation. The new penalty amounts are effective for penalties assessed after June 28, 2024, whose associated violations occurred after November 2, 2015.

4. Naturalization Applicants Can Request Replacement Social Security Cards When They Apply for Citizenship – Applicants for naturalization can now request a replacement Social Security card when they apply for citizenship through Form N-400 (edition date 04/01/24).

5. DOS Updates Diversity Visa Guidance in Response to Court Decision – The Department of State said it will not process DV cases associated with several district court decisions from the DV-2020 or DV-2021 program years.

6. Ninth Circuit Holds That Discrimination Against U.S. Citizens on Basis of Citizenship is Prohibited – In Rajaram v. Meta Platforms, Inc., the U.S. Court of Appeals for the Ninth Circuit held that discrimination against U.S. citizens on the basis of their citizenship is prohibited under 42 U.S.C. § 1981.

7. DOJ Reaches Settlement With Staffing Agency for Discrimination Against Non-U.S. Citizens – The Department of Justice has secured a settlement agreement with eTeam Inc., an online staffing agency that provides services to companies in the United States and worldwide. The agreement resolves DOJ’s determination that eTeam discriminated against non-U.S. citizens with permission to work in the United States by excluding them from job opportunities based on their citizenship or immigration status.

8. FLCDataCenter.com Discontinued – FLCDataCenter.com is discontinued effective July 1, 2024. Prevailing wage data from the Occupational Employment and Wage Statistics Survey is now available through the OFLC Wage Search tool.

9. President Announces New Measures for Spousal Work Authorization, DACA Recipients – On June 18, 2024, President Biden announced measures “to ensure that U.S. citizens with noncitizen spouses and children can keep their families together.” He also announced measures to enable certain Deferred Action for Childhood Arrivals recipients and others to receive work visas more quickly.

10. USCIS Extends Certain TPS Work Permits Through March 9, 2025 – USCIS is extending the work authorization of Temporary Protected Status beneficiaries under the designations of El Salvador, Honduras, Nepal, Nicaragua, and Sudan through March 9, 2025.

11. DOJ Reaches Settlement With Staffing Agency for Discrimination Against Noncitizens – Under the settlement, the company will pay civil penalties, train its employees on the INA’s requirements, revise its employment policies, and be subject to monitoring.

12. Coming Soon: Increased Login Security for E-Verify and SAVE – U.S. Citizenship and Immigration Services announced that login security will be enhanced for E-Verify and Systematic Alien Verification for Entitlements later this year

13. DOS Rolls Out ‘Beta Release’ of Online Passport Renewal System – The Department of State is testing a system for U.S. citizens to renew their passports online.

14. EB-3 Category Retrogresses for July, Other Updates: Visa Bulletin – The worldwide EB-3 final action date (including Mexico and Philippines) retrogressed in July.

15. OFLC Seeks Info on Availability of Qualified Workers and Ways to Contact Them – The Office of Foreign Labor Certification seeks input on the annual determination of Labor Supply States to enhance U.S. worker recruitment.

16. Class Certified for Visa Applicants Refused Visas Under Presidential Proclamation – A U.S. District Court has certified a class to allow certain visa applicants who were refused visas under Presidential Proclamation 9645 to receive a one-time, non-transferable fee credit to submit a new visa application and (for eligible class members) to get a prioritized visa appointment.

17. New USCIS Policy Guidance Interprets Confidentiality Protections as Ending at Naturalization – “This policy will result in naturalized citizens having full access to USCIS electronic benefit processing and critical customer service tools that are available to other U.S. citizens,” USCIS said.

18. Update Your E-Verify Login Bookmark! – The URL should say “everify.uscis.gov”, not “e-verify.uscis.gov”.

19. President Suspends and Limits Entry Into the United States of Certain Noncitizens, With Exceptions – Exceptions include lawful permanent residents, noncitizen nationals of the United States, noncitizens with valid visas or other lawful permission to enter, noncitizens traveling under the Visa Waiver Program, unaccompanied children, and others.

20. DOJ Sues Oklahoma Over New State Enforcement Law Against Unauthorized Noncitizens – The Department of Justice (DOJ) has sued the state of Oklahoma over House Bill 4156, a new law that DOJ says “impermissibly creates a state-specific immigration system that effectively seeks to regulate noncitizens’ entry, reentry, and presence in the United States.”

21. BALCA, OALJ Offices Move – The national, Washington, DC, and Cherry Hill offices of the Board of Alien Labor Certification Appeals and the Office of Administrative Law Judges have relocated to the Frances Perkins building in DC.

22. ABIL Global: Colombia – This article discusses visa options for retirees and “digital nomads” in Colombia.

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 – July 2024


1. Liberian DED Extended Through June 2026

President Biden has extended through June 30, 2026, deferred removal for Liberians with a grant of Deferred Enforced Departure (DED) under a 2022 memorandum. President Biden also announced that eligible Liberian nationals will have continued work authorization through June 30, 2026.

The grant of DED and continued employment authorization applies to any person who was eligible for a grant of DED under the 2022 memorandum, to include any Liberian national, or person without nationality who last habitually resided in Liberia, who has been continuously physically present in the United States since May 20, 2017, except for certain categories outlined in the new memorandum issued June 28, 2024.

Details:

  • Memorandum on Extending Eligibility for Deferred Enforced Departure for Liberians, 89 Fed. Reg. 55017 (June 28, 2024).

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2. DHS Releases Details on Haiti TPS Extension and Redesignation, Work Authorization for Haitian F-1 Students

The Department of Homeland Security released additional details about the extension and redesignation of Haiti for Temporary Protected Status (TPS) through February 3, 2026. Given the timeframes for processing TPS re-registration and work authorization renewal applications, U.S. Citizenship and Immigration Services (USCIS) automatically extended through August 3, 2025, the validity of certain employment authorization documents (EADs) issued under the TPS designation for Haiti and having the expiration dates listed in the notice.

  • To get an EAD valid after August 3, 2025, USCIS said, holders of those EADs must re-register for TPS and file Form I-765, Application for Employment Authorization, following the instructions in the Federal Register notice extending and redesignating Haiti for TPS until February 3, 2026. If USCIS approves the newly filed Form I-765, it will issue an EAD valid through February 3, 2026.
  • USCIS noted that “this may be the final time USCIS will automatically extend TPS Haiti-based EADs with a Category of A-12 or C-19 and a Card Expires date of Dec. 31, 2022; Oct. 4, 2021; Jan. 4, 2021; Jan. 2, 2020; July 22, 2019; Jan. 22, 2018; or July 22, 2017.”
  • The notice also gives instructions for employers completing Form I-9, Employment Eligibility Verification, for TPS Haitian beneficiaries. Employers must reverify certain Haitian employees before they start work on August 4, 2025.

On July 1, 2024, U.S. Immigration and Customs Enforcement also released a notice on work authorization for Haitian F-1 nonimmigrant students.

Details:

  • TPS designation for Haiti  page.
  • I-9 Central TPS
  • ICE notice on work authorization for Haitian F-1 nonimmigrant students (July 1, 2024).
  • DHS notice (July 1, 2024) (advance copy).
  • DHS news release (June 28, 2024).

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3. DHS Raises Civil Penalties for Certain Violations

The Department of Homeland Security (DHS) has raised civil monetary penalties for certain violations based on inflation. The new penalty amounts are effective for penalties assessed after June 28, 2024, whose associated violations occurred after November 2, 2015. For example:

  • Civil penalties for knowingly hiring, recruiting, referral, or retention of unauthorized aliens—Penalty for first offense (per unauthorized alien): $698-$5,579.
  • Civil penalties for I-9 paperwork violations: $281-$2,789.

Details:

  • DHS Final Rule, 89 Fed. Reg. 53849 (June 28, 2024).

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4. Naturalization Applicants Can Request Replacement Social Security Cards When They Apply for Citizenship

U.S. Citizenship and Immigration Services (USCIS) announced that applicants for naturalization can now request a replacement Social Security card when they apply for citizenship through Form N-400 (edition date 04/01/24).

USCIS noted several reasons why an applicant for naturalization might request a Social Security card through their application for naturalization:

  • Replacing a lost, stolen, or damaged Social Security card
  • Replacing a “restricted” Social Security card with an “unrestricted” Social Security card that can be used to show permission to work in the Form I-9 process
  • Receiving a card with an updated name if the person’s legal name has changed
  • Updating their citizenship information with the Social Security Administration
  • Opening a My Social Security account without first visiting a local Social Security Administration office

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5. DOS Updates Diversity Visa Guidance in Response to Court Decision

On June 25, 2024, the U.S. Court of Appeals for the District of Columbia reversed the district courts’ decisions that had ordered the Department of State (DOS) to reserve and adjudicate diversity visa (DV) cases from the DV-2020 and DV-2021 program years. The court found that:

The district courts had no authority to order the State Department to keep processing applications for diversity visas and issuing the visas beyond the end of the relevant fiscal years. … [C]ourts cannot order relief that conflicts with a clear and constitutionally valid statute. … Once Fiscal Years 2020 and 2021 ended, the plaintiffs lost their eligibility for diversity visas. The district courts erred in asserting an equitable authority to override these clear statutory deadlines, which foreclose the prospective relief sought in these cases. Accordingly, we … remand the cases with instructions to enter judgment for the government.

Accordingly, DOS said it will not process DV cases associated with these district court decisions from the DV-2020 or DV-2021 program years. Affected individuals from eligible countries “who wish to submit a new DV entry may do so during the registration period for the DV-2026 program year, which will open in October 2024 and close in early November 2024,” DOS said.

DOS said it “will continue to preserve case records related to the DV-2020 and DV-2021 programs until the litigation has concluded.”

Details:

  • Goodluck v. Biden (consolidated) (June 25, 2024).
  • DOS notice (June 27, 2024).

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6. Ninth Circuit Holds That Discrimination Against U.S. Citizens on Basis of Citizenship is Prohibited

In Rajaram v. Meta Platforms, Inc., the U.S. Court of Appeals for the Ninth Circuit held that discrimination against U.S. citizens on the basis of their citizenship is prohibited under 42 U.S.C. § 1981. Purushothaman Rajaram, a naturalized U.S. citizen and information technology professional, alleged that Meta Platforms, Inc., refused to hire him because it prefers to hire noncitizens holding H-1B visas to whom it can pay lower wages. The court noted:

An employer that discriminates against United States citizens gives one class of people—noncitizens, or perhaps some subset of noncitizens—a greater right to make contracts than “white citizens.” If some noncitizens have a greater right to make contracts than “white citizens,” then it is not true that “[a]ll persons” have the “same right” to make contracts as “white citizens.” That is precisely what the literal text of the statute prohibits.

Details:

  • Rajaram v. Meta Platforms, Inc. (June 27, 2024).

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7. DOJ Reaches Settlement With Staffing Agency for Discrimination Against Non-U.S. Citizens

The Department of Justice (DOJ) announced on June 20, 2024, that it secured a settlement agreement with eTeam Inc., an online staffing agency that provides services to companies in the United States and worldwide. The agreement resolves DOJ’s determination that eTeam discriminated against non-U.S. citizens with permission to work in the United States by excluding them from job opportunities based on their citizenship or immigration status.

An investigation by the Immigrant and Employee Rights Section of DOJ’s Civil Rights Division found that “during various months in 2021, eTeam regularly distributed job advertisements that contained unlawful hiring restrictions based on citizenship status or otherwise screened out candidates based on their citizenship status. These actions harmed lawful permanent residents and individuals granted asylum or refugee status by deterring them from applying to the job advertisements and failing to meaningfully consider those who did apply,” DOJ said.

Under the terms of the settlement, eTeam will pay $232,500 in civil penalties and set aside $325,000 to compensate affected workers. The agreement also requires eTeam to train its personnel on immigration requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements, DOJ said.

Details:

  • DOJ announcement (June 20, 2024).
  • Settlement agreement (June 20, 2024).

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8. FLCDataCenter.com Discontinued

The Department of Labor’s Office of Foreign Labor Certification announced that FLCDataCenter.com is discontinued effective July 1, 2024.

Prevailing wage data from the Occupational Employment and Wage Statistics Survey is now available through the OFLC Wage Search tool (https://flag.dol.gov/wage-data/wage-search), OFLC said.

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9. President Announces New Measures for Spousal Work Authorization, DACA Recipients

On June 18, 2024, President Biden announced measures “to ensure that U.S. citizens with noncitizen spouses and children can keep their families together.” He said that:

  • To be eligible, noncitizens must—as of June 17, 2024—have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements. On average, those who are eligible for this process have resided in the U.S. for 23 years.
  • Those who are approved after the Department of Homeland Security’s case-by-case assessment of their application will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years. This will apply to all married couples who are eligible.
  • This action will protect approximately half a million spouses of U.S. citizens, and approximately 50,000 noncitizen stepchildren under the age of 21 whose parents are married to U.S. citizens.

President Biden also announced measures to enable Deferred Action for Childhood Arrivals (DACA) recipients “and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.” He said the administration “is taking action to facilitate the employment visa process for those who have graduated from college and have a high-skilled job offer, including DACA recipients and other Dreamers.” The action will involve streamlining the so-called “D-3” waiver process, by which people can overcome their unlawful presence problem by applying for a waiver at a consular post.

According to reports, details are expected to be released over the summer, along with an application process. People cannot apply yet.

 

Details:

  • Fact Sheet: President Biden Announces New Actions to Keep Families Together (June 18, 2024).
  • Easing the Nonimmigrant Visa Process for U.S. College Graduates, Department of State (June 18, 2024).
  • Biden Is Offering Some Migrants a Pathway to Citizenship. Here’s How the Plan Will Work, Associated Press (June 18, 2024).

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10. USCIS Extends Certain TPS Work Permits Through March 9, 2025

U.S. Citizenship and Immigration Services (USCIS) announced on June 20, 2024, that it is extending the work authorization of Temporary Protected Status (TPS) beneficiaries under the designations of El Salvador, Honduras, Nepal, Nicaragua, and Sudan through March 9, 2025.

USCIS will issue Form I-797, Notice of Action, to these TPS beneficiaries who are eligible to re-register for TPS or have a pending application to renew their Form I-766, Employment Authorization Document (EAD). The notice further extends the validity of their EAD through March 9, 2025.

USCIS said that employees may show their Form I-797, along with their TPS-based EAD (EAD with an A12 or C19 code), to any U.S. employer as proof of continued work authorization through March 9, 2025.

USCIS provided additional instructions for employers:

After a new employee has completed Form I-9, Employment Eligibility Verification, create a case in E-Verify for this employee. Enter the EAD document number you entered on Form I-9, as well as the automatically extended date of March 9, 2025. You must reverify these employees on Form I-9 before they start work on March 10, 2025.

Details:

  • USCIS alert (June 20, 2024).

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11. DOJ Reaches Settlement With Staffing Agency for Discrimination Against Noncitizens

The Department of Justice (DOJ) announced a settlement agreement with Selective Personnel Inc. (SPI), a California staffing agency. The agreement resolves DOJ’s determination that SPI’s predecessor business entity, South Bay Safety (SBS), violated the Immigration and Nationality Act (INA) by regularly discriminating against non-U.S. citizens when checking their permission to work in the United States.

After investigating, the Civil Rights Division’s Immigrant and Employee Rights Section (IER) concluded that between September 2020 and October 2022, SBS required non-U.S. citizens to present specific types of documentation reflecting their immigration status to prove their permission to work. In contrast, U.S. citizens could present any acceptable document of their choosing. IER concluded that SPI was a successor in interest to SBS and liable for the violations that IER found.

Under the settlement, SPI will pay civil penalties to the United States, train its employees on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring.

Details:

  • DOJ press release (June 17, 2024).

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12. Coming Soon: Increased Login Security for E-Verify and SAVE

U.S. Citizenship and Immigration Services (USCIS) announced that login security will be enhanced for E-Verify and Systematic Alien Verification for Entitlements (SAVE) later this year, when users will begin logging into E-Verify or SAVE using Login.gov. This change “will require users to enter more information than just a password through a process called multi-factor authentication,” USCIS said. For example, “along with the password, users may be asked to enter a code sent to their email or phone.”

USCIS said that enhancing these processes will help prevent unauthorized account access and minimize risk due to human error, misplaced passwords, or lost devices.

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13. DOS Rolls Out ‘Beta Release’ of Online Passport Renewal System

The Department of State (DOS) is testing a “beta release” of a system for U.S. citizens to renew their passports online. DOS said routine processing times for renewing a passport online are expected to be six to eight weeks (not including mailing). Expedited renewals are not available online.

DOS noted that applicants might not be able to start their applications on the days of their choice during the beta release period. The system will open for a limited time midday ET each day, “and will close once we reach our limit for the day.” If you can’t start your application, DOS said, “try again on another day.” Renewal by mail is still available also.

Details:

  • DOS announcement (June 12, 2024).

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14. EB-3 Category Retrogresses for July, Other Updates: Visa Bulletin

The Department of State’s Visa Bulletin for July includes the following information about retrogression in the EB-3 immigrant visa preference category and an alert about a new law’s impact on special immigrant visas:

RETROGRESSION IN THE EMPLOYMENT-BASED THIRD (EB-3) PREFERENCE CATEGORY

As readers were informed was possible in Item D of the June 2024 Visa Bulletin, it has become necessary to retrogress the worldwide EB-3 final action date (including Mexico and Philippines) effective in July. Given continued high demand and number use in this category, it will likely be necessary to either further retrogress the final action date or make the category “Unavailable” in August. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

U.S. GOVERNMENT EMPLOYEE SPECIAL IMMIGRANT VISAS (SIVs)

The National Defense Authorization Act (NDAA) for Fiscal Year 2024, signed into law on December 22, 2023, may affect certain current and former employees of the U.S. Government abroad applying for SIVs or adjustment of status, as described in section 101(a)(27)(D) of the INA. This does not affect certain Iraqis and Afghans applying for SQ and SI SIVs. Applicants should contact the consular section at which they filed their Form DS‑1884 for further information on the impact of that law on their case.

Details:

  • Visa Bulletin for July 2024.

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15. OFLC Seeks Info on Availability of Qualified Workers and Ways to Contact Them

The Department of Labor’s Office of Foreign Labor Certification (OFLC) seeks input by August 13, 2024, on the annual determination of Labor Supply States (LSS) to enhance U.S. worker recruitment. OFLC explained that LSS are “additional states in which an employer’s job order will be circulated and, if appropriate, where additional positive recruitment may be required of the employer.”

To make a determination regarding labor supply and the positive recruitment needed to reach qualified workers within a state, OFLC requests information on the availability of qualified workers and the “appropriate, effective methods of contacting those workers.” Information sought includes but is not limited to:

  • The type of qualified workers available (e.g., tomato harvest workers);
  • The state and geographic area(s) within the state where the workers may be located (e.g., city, county, regional non-metropolitan area);
  • The methods for apprising the workers of a job opportunity (e.g., local newspaper or periodical, posting with a particular community organization engaged with those workers); and/or
  • Most current information for the person(s) or entity (e.g., worker union, community-based organization) to be contacted for assistance in circulating the job opportunity to those workers.

OFLC said that all “previously determined LSS requirements will remain in full effect, unless the OFLC Administrator receives information indicating that a previous LSS is no longer a source for qualified workers.”

Details:

  • OFLC announcement (scroll to June 14, 2024).

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16. Class Certified for Visa Applicants Refused Visas Under Presidential Proclamation

The Department of State (DOS) disseminated a notice that the U.S. District Court for the Northern District of California has certified a class in the consolidated cases Emami v. Mayorkas and Pars Equality Center v. Blinken to allow certain visa applicants who were refused visas under Presidential Proclamation 9645 to receive a one-time, non-transferable fee credit to submit a new visa application and for eligible class members to get a prioritized visa appointment.

Certain nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were denied a visa between December 8, 2017, and January 20, 2021, and did not receive a waiver under that proclamation may be eligible for relief, DOS said.

Details:

  • DOS notice (also available in Arabic and Farsi) (June 13, 2024).

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17. New USCIS Policy Guidance Interprets Confidentiality Protections as Ending at Naturalization

U.S. Citizenship and Immigration Services (USCIS) has issued guidance that interprets certain confidentiality protections as ending at naturalization.

USCIS said it made this change because “the previous practice of maintaining 8 U.S.C. 1367 protections beyond naturalization created burdens for some naturalized U.S. citizens. This policy will result in naturalized citizens having full access to USCIS electronic benefit processing and critical customer service tools that are available to other U.S. citizens.”

Details:

  • Customer Service and Interpretation of 8 U.S.C. 1367 Confidentiality Protections for U.S. Citizens, USCIS Policy Alert PA-2024-15 (June 12, 2024).

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18. Update Your E-Verify Login Bookmark!

U.S. Citizenship and Immigration Services (USCIS) reminded E-Verify users to delete the dash in their E-Verify login bookmarks. The URL should say “everify.uscis.gov”, not “e-verify.uscis.gov”. USCIS said the old URL and associated redirect will no longer work, effective June 25, 2024. USCIS also reminded users to update “any material(s) used internally.”

Details:

  • USCIS notice (June 11, 2024).

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19. President Suspends and Limits Entry Into the United States of Certain Noncitizens, With Exceptions

Subject to certain exceptions, as of June 5, 2024, President Biden has “suspended and limited” entry into the United States of certain noncitizens across the southern border. In related remarks accompanying a Presidential Proclamation, President Biden said, “Migrants will be restricted from receiving asylum at our southern border unless they seek it after entering through an established lawful process.”

Exceptions include lawful permanent residents, noncitizen nationals of the United States, noncitizens with valid visas or other lawful permission to enter, noncitizens traveling under the Visa Waiver Program, unaccompanied children, and others, as set forth in the Presidential Proclamation.

The order will be lifted “14 calendar days after the [Secretary of Homeland Security] makes a factual determination that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters” of unauthorized noncitizens at the border, with some exceptions. The suspension and limitation on entry applies “on the calendar day immediately after the Secretary has made a factual determination that there has been a 7-consecutive-calendar-day average of 2,500 encounters or more,” a threshold that has been met.

Lee Gelernt, a spokesperson for the American Civil Liberties Union (ACLU), said the ACLU plans to sue. “A ban on asylum is illegal just as it was when Trump unsuccessfully tried it,” he said.

Details:

  • Presidential Proclamation (June 4, 2024).
  • Remarks by President Biden on Securing Our Border (June 4, 2024).
  • Biden Signs Executive Action Drastically Tightening Border, NBC News (June 4, 2024).
  • “Securing the Border,” interim final rule, Departments of Homeland Security and Justice, 89 Fed. Reg. 48710 (June 7, 2024).

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20. DOJ Sues Oklahoma Over New State Enforcement Law Against Unauthorized Noncitizens

The Department of Justice (DOJ) has sued the state of Oklahoma over House Bill (HB) 4156, a new law that DOJ says “impermissibly creates a state-specific immigration system that effectively seeks to regulate noncitizens’ entry, reentry, and presence in the United States.” In the suit, DOJ likened HB 4156 to “Texas’s preliminarily enjoined Senate Bill 4 and Iowa’s recently enacted Senate File 2340.” HB 4156, effective July 1, 2024, creates new state crimes and imposes state penalties on noncitizens in Oklahoma who unlawfully enter or reenter the United States, the suit says.

DOJ’s suit notes that “Congress has established a comprehensive scheme governing noncitizens’ entry and reentry into the United States—including penalties for unlawful entry and reentry…and removal from the country.” The agency argues that “HB 4156 intrudes on that scheme, frustrates the United States’ immigration operations, and interferes with U.S. foreign relations. It is preempted by federal law and thus violates the Supremacy Clause of the United States Constitution. HB 4156 also violates the dormant Foreign Commerce Clause, which limits the power of the States to regulate the international movement of persons. Accordingly, the United States seeks a declaration invalidating, and an order enjoining the enforcement of, HB 4156.”

Details:

  • S. v. State of Oklahoma, Case No. COMPLAINT CIV-24-511-J (May 21, 2024).
  • HB 4156 (approved by governor Apr. 30, 2024).

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21. BALCA, OALJ Offices Move

The national, Washington, DC, and Cherry Hill offices of the Board of Alien Labor Certification Appeals (BALCA) and the Office of Administrative Law Judges (OALJ) have relocated to the Frances Perkins building in DC. Effective immediately, all mail to these offices should be sent to:

U.S. Department of Labor
Office of Administrative Law Judges
200 Constitution Ave., NW
Room S-4325
Washington, DC  20210

The telephone and fax numbers for the offices remain the same.

Details:

  • OALJ notice (May 7, 2024).

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22. ABIL Global: Colombia

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

Colombia: An Emerging Haven for Foreign Retirees

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

Visa Options for Retirees

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

Requirements for the Retiree Visa

To obtain the retiree visa, applicants must provide:

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

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

Digital Nomads in Colombia

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

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

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

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

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New Publications and Items of Interest

Webinar on Ombudsman’s Report to Congress. The Department of Homeland Security’s Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) announced a webinar highlighting its 2024 Annual Report to Congress on Tuesday, July 30, 2024, from 1 to 2 p.m. ET. CIS Ombudsman staff will discuss the topics covered in this year’s report, including:

  • Year in Review: An overview of 2023 for both USCIS and the CIS Ombudsman
  • Recommendations for a Proactive Approach to Collecting Biometrics from Asylum Applicants in Removal Proceedings
  • Reexamining the Administration of the English Portion of the Naturalization Test
  • USCIS’ Prioritization Dilemmas: Lessons From the Form I-601A Backlog
  • Lost Mail and the Challenges of Delivering USCIS Documents
  • Meeting the Growing Demand for Employment Authorization Documents
  • Clarifying Processing Times to Improve Inquiries and Manage Expectations
  • Looking Backward, Looking Forward: Thoughts on the Future of USCIS

During the webinar, participants will be able to submit questions and comments. To join the webinar, click on this Teams link. Registration is not required.

Fact sheets on LPRs in various areas. U.S. Citizenship and Immigration Services (USCIS) has released fact sheets on select characteristics of people with lawful permanent residence (LPR) (green card) status, including:

  • Buffalo-Cheektowaga, NY
  • New York-Newark-Jersey City, NY-NJ-PA
  • Philadelphia-Camden-Wilmington, PA-NJ-DE-MD
  • Los Angeles-Long Beach-Anaheim, CA
  • New Orleans-Metairie, LA
  • Durham-Chapel Hill, NC
  • San Antonio-New Braunfels, TX
  • Brownsville-Harlingen, TX

USCIS said that “[p]roviding more information on the eligible to naturalize population is in keeping with the Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans (E.O. 14012).”

USAID resources for Temporary Work Abroad. The U.S. Agency for International Development (USAID) released resources on temporary work programs for Guatemalans and Hondurans. USAID also released information on how to recruit a Honduran workforce.

OFLC updates Appendix A to the Preamble – Education and Training Categories by O*NET-SOC occupations for July 2024 through June 2025 wage year. On November 15, 2021, the Department of Labor’s Employment and Training Administration announced that the Office of Foreign Labor Certification (OFLC) was updating Appendix A to the Preamble–Education and Training Categories by Occupational Information Network (O*NET)-Standard Occupational Classification (SOC) Occupations. OFLC explained that Appendix A is a list of professional occupations that serves as a guide for employers to distinguish between professional and non-professional occupations when complying with the professional recruitment requirements of the PERM program. On June 26, 2024, OFLC released this year’s Appendix A, which implements the new list of professional occupations for the July 2024 through June 2025 wage year and will be effective starting July 1, 2024.

H-2A hourly Adverse Effect Wage Rates for Non-Range Occupations published: The Department of Labor’s Employment and Training Administration is updating the Adverse Effect Wage Rates (AEWRs) under the H-2A temporary agricultural employment program that apply to a limited set of H-2A job opportunities for which the AEWR is determined using the Bureau of Labor Statistics OEWS survey. These changes are effective July 8, 2024.

Info on workers’/advocates’ requests for deferred action: The Department of Justice’s Civil Rights Division has posted information on how workers and their advocates can ask the Civil Rights Division to support a worker’s request for deferred action that is based on the worker’s participation in a Civil Rights Division enforcement matter. A fact sheet addresses several related topics.

Farmworker webinar materials: On June 6, 2024, the Office of Foreign Labor Certification’s (OFLC) Wage and Hour Division, and the Office of Workforce Investment, conducted a webinar on changes to the H-2A and Wagner-Peyser Employment Service programs made by the 2024 Farmworker Protection Final Rule. The presentation materials are located on OFLC’s website under the “Webinars” tab at the bottom of the H-2A Program page and are available at the links below:

  • View the slides of the Farmworker Protection Final Rule
  • View the webinar recording of the Farmworker Protection Rule

E-Verify webinars: E-Verify has updated its calendar of webinars. There is a new webinar focusing on acceptable documents for the Form I-9 work authorization verification process, to be presented July 9 and 17, and August 14 and 27, 2024. Other topics include E-Verify for existing and Web services users, employee rights, employer responsibilities, information for federal contractors, an overview of E-Verify and Form I-9 requirements, and myE-Verify, among others.

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

Immigration agency X (formerly Twitter) accounts:

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

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

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ABIL Member / Firm News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOL Liaison Committee: Andrea-Li Wallace, Michele Madera

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

CBP National Liaison Committee: Janice Flynn

EOIR Committee: Dustin Baxter, Aaron Hall

USCIS Field Operations Committee: Charles Kuck, Johnna Main Bailey

EB-5 Committee: Kristal Ozmun

H-1B Taskforce: Dagmar Butte

Military Committee: Daniel Carpenter, Catherine Magennis

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

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

Standing Committee on Political Engagement (SCOPE): William Stock

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

Family Section Steering Committee: Jorge Gavilanes

Federal Court Litigation Steering Committee: Zachary New

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

Ethics Committee: Oxana Bowman

Pro Bono Committee: Vikram Akula

Media Advocacy Committee: Elissa Taub

High Impact Adjudications Assistance Committee: Adam Cohen

Client Resources Committee: Meghan Moody

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

Technology Advisory Group: Julie Pearl

Well-Being Committee: Jennifer Howard

Board Member Emeritus: Charles Foster

Annual Conference 2024 Planning Committee: Jason Susser

Mid-Winter Conference Planning Committee: Elissa Taub

Innovation and Technology Summit Planning Committee: Julie Pearl

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

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

Mid-South Chapter Chair: Jason Susser

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-07-07 17:44:502024-07-13 12:14:59ABIL Immigration Insider • July 7, 2024

ABIL Immigration Insider • June 2, 2024

June 02, 2024/in Immigration Insider /by ABIL

In this issue:

1. E-Verify+ Trial Launched; Users Should Check Their Bookmarks, USCIS Said – E-Verify+ integrates the Form I-9 and E-Verify employment eligibility verification processes. USCIS also noted that E-Verify users should check their bookmarks and update them if needed.

2. USCIS Reminds SAVE Users to Certify Tutorial Review, Provides Best Practice Tips – As of May 28, 2024, SAVE users must certify review of the SAVE tutorial before creating new SAVE cases. The agency also provided best practice tips when submitting a case.

3. USCIS Updates Guidance on Family-Based Immigrant Visas – Effective May 22, 2024, U.S. Citizenship and Immigration Services (USCIS) has updated its guidance on family-based immigrant visa petitions. The update includes an explanation of how USCIS corrects approval notice errors, processes requests for consular processing or adjustment of status on the beneficiary’s behalf, and handles routing procedures for approved petitions.

4. District Court Approves New Visa Applications and Fee Waivers for Travel Ban Class Members – Affected class members include nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were refused visas under Presidential Proclamation 9645.

5. DOJ, DOL Secure Agreements With Tech Company to Resolve Discriminatory “U.S. Born Citizens [Whites Only]” Job Posting – On May 23, 2024, the Departments of Justice and Labor announced separate agreements with Arthur Grand Technologies Inc., an information technology services firm based in Virginia.

6. DOS Implements New Visa Restrictions for Certain Georgians – Secretary of State Antony Blinken said that “anyone who undermines democratic processes or institutions in Georgia—including in the lead-up to, during, and following Georgia’s October 2024 elections—may be found ineligible for U.S. visas under this policy and precluded from travel to the United States.”

7. DHS Issues New ‘Western Hemisphere Parole’ Class of Admission – As part of the Biden administration’s actions to manage regional migration and facilitate “safe, orderly, and humane processing of migrants,” the Department of Homeland Security has issued a new class of admission, Western Hemisphere Parole.

8. SAVE Requires Users to Review New Tutorial – SAVE users must review a new tutorial and certify completion of their review before creating new SAVE cases.

9. Representatives Send Letter to USCIS Director Expressing Concerns About Work Authorization Process for Asylees and Humanitarian Parolees – Sixteen members of Congress sent a letter to Ur Jaddou, Director of U.S. Citizenship and Immigration Services, expressing their concerns with the process for submitting Employment Authorization Document applications for asylees and humanitarian parolees.

10. DOJ Secures Agreement With National Home Healthcare Company to Resolve Immigration-Related Employment Discrimination Claims – The Department of Justice announced that it secured a settlement agreement with Maxim Healthcare Services, a home healthcare company based in Columbia, Maryland, with operations in 35 states.

11. Retrogression Likely in EB-2 and EB-3 Categories, Visa Bulletin for June 2024 States – High demand in the employment-based second (EB-2) and third (EB-3) categories will most likely necessitate retrogression of the worldwide final action date (including Mexico and Philippines) next month. Also, a new law may affect certain current and former employees of the U.S. government abroad applying for Special Immigrant Visas or adjustment of status.

12. USCIS Clarifies Policy on Location of H-3 Training – U.S. Citizenship and Immigration Services issued policy guidance clarifying when H-3 nonimmigrants may participate in training provided on the property of an academic or vocational institution.

13. OFLC Seeks Comments on Proposed Three-Year Extension of Labor Condition Application and WH-4 Forms for H-1B, H-1B1, and E-3 Temporary Programs – Comments are due by July 5, 2024.

14. DOL Ratifies Final H-2A Rule’s AEWR Methodology – The Department of Labor published a notice stating that the Assistant Secretary for Employment and Training ratified a final rule on Adverse Effect Wage Rate methodology for H-2A agricultural workers “out of an abundance of caution.”

15. DOJ Secures Agreement With Climate Nonprofit to Resolve Immigration-Related Employment Discrimination Claims – The agreement resolves the Department of Justice’s determination that Second Nature violated the Immigration and Nationality Act by posting discriminatory job advertisements that deterred non-U.S. citizens from applying for open positions.

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – June 2024


1. E-Verify+ Trial Launched; Users Should Check Their Bookmarks, USCIS Said

U.S. Citizenship and Immigration Services (USCIS) announced the launch of the E-Verify+ trial. E-Verify+ integrates the Form I-9 and E-Verify employment eligibility verification processes.

USCIS said that the trial puts the agency “one step closer to bringing E-Verify+ to you.” The trial will include live testing with E-Verify users to assess the user experience. Their feedback will be considered for incorporation in the product when it is released for wider use, USCIS said.

USCIS also noted that E-Verify users should check their bookmarks. Effective June 25, 2024, the E-Verify account log-in page will only be accessible through everify.uscis.gov. Users should review their bookmarks to ensure that they are using the current URL without a dash, USCIS said.

Details:

  • E-Verify+ trial announcement (May 29, 2024).

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2. USCIS Reminds SAVE Users to Certify Tutorial Review, Provides Best Practice Tips

U.S. Citizenship and Immigration Services (USCIS) reminded Systematic Alien Verification for Entitlements (SAVE) users that as of May 28, 2024, SAVE users must certify review of the SAVE tutorial before creating new SAVE cases. SAVE users will be unable to create new SAVE cases until they attest to review of the SAVE tutorial and certify to completion. Users can complete the certification without delay at SAVE> Manage Profile.

SAVE published a new SAVE Tutorial that provides guidance “to help SAVE users correctly and efficiently use SAVE to verify benefit applicants, which users are encouraged to review,” USCIS said.

The tutorial provides information about:

  • SAVE and the verification process
  • SAVE CaseCheck
  • Commonly used immigration documents and where to find immigration enumerators
  • Common case responses
  • Best practices for additional verification
  • Managing cases
  • Administering SAVE accounts

USCIS also noted that the SAVE additional verification response time for May 2024 is now five federal workdays. “Response times vary depending upon the complexity of the case,” USCIS said. The agency provided the following best practice tips when submitting a case:

  • Ensure that the applicant’s name, date of birth, and immigration enumerators are entered exactly as they appear on the applicant’s immigration documentation.
  • Include all immigration enumerators provided by the applicant. For example, if the applicant presents a Form I-766, Employment Authorization Document, and a Form I-94, Arrival/Departure Record, enter both the USCIS number from the I-766 and the I 94 number into SAVE.
  • If an applicant needs their most recent Form I-94 issued by U.S. Customs and Border Protection (CBP), they can visit CBP’s I-94 website or download the CBP One mobile app to retrieve a copy.

Details:

  • SAVE announcements (May 28, 2024).

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3. USCIS Updates Guidance on Family-Based Immigrant Visas

Effective May 22, 2024, U.S. Citizenship and Immigration Services (USCIS) has updated its guidance on family-based immigrant visa petitions. The update includes an explanation of how USCIS corrects approval notice errors, processes requests for consular processing or adjustment of status on the beneficiary’s behalf, and handles routing procedures for approved petitions.

USCIS explained that the update clarifies procedures for family-based immigration petitions “to promote more efficient processing where the beneficiary’s preference for consular processing or adjustment of status is unclear or has changed or a correction is needed.”

The updated guidance “provides that if you do not clearly indicate whether your beneficiary wants consular processing or adjustment of status, we will use discretion to decide whether to send the approved petition to the [National Visa Center] for consular processing or keep the petition for adjustment of status processing, based on evidence of the beneficiary’s most recent location, including the beneficiary’s address on the petition,” USCIS said.

Details:

  • USCIS alert (May 22, 2024).
  • USCIS Policy Manual.

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4. District Court Approves New Visa Applications and Fee Waivers for Travel Ban Class Members

Certain nonimmigrant and immigrant visa applicants who were refused visas under a Trump-era travel ban can now obtain a one-time fee waiver to submit a new visa application and receive a prioritized visa appointment, thanks to federal district court approval. Affected class members include nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were refused visas under Presidential Proclamation 9645.

The U.S District Court for the Southern District of California also requires the government to notify all eligible class members and provide periodic reports.

Details:

  • Emami v. Nielsen, Case 3:18-cv-01587-JD, Joint Proposed Injunction (May 14, 2024).
  • Emami v. Mayorkas, 18-cv-01587-JD and 18-cv-07818-JD, Order re Summary Judgment (Aug. 1, 2022).

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5. DOJ, DOL Secure Agreements With Tech Company to Resolve Discriminatory “U.S. Born Citizens [Whites Only]” Job Posting

On May 23, 2024, the Departments of Justice (DOJ) and Labor (DOL) announced separate agreements with Arthur Grand Technologies Inc., an information technology services firm based in Virginia.

DOJ’s agreement resolves the department’s determination that Arthur Grand violated the Immigration and Nationality Act (INA) by posting a discriminatory job advertisement in March 2023 that restricted eligible candidates to “only US Born Citizens [white] who are local within 60 miles from Dallas, TX [Don’t share with candidates]” [brackets in original].

DOJ’s agreement notes that Arthur Grand “asserted that the posted advertisement was generated by a disgruntled recruiter in India and was intended to embarrass the company; and Respondent thereby denies that the posting was authorized by the company or that Respondent intended to dissuade non-U.S. Citizens from applying for the position.” The agreement orders the company to pay a civil penalty of $7,500. Among other requirements, the agreement also requires recruitment personnel to view a training video.

DOL’s agreement resolves its determination that Arthur Grand violated Executive Order 11246, which prohibits federal contractors from discriminating in employment based on race, color, religion, sex, sexual orientation, gender identity, or national origin. That agreement includes $31,000 to compensate individuals and other injunctive relief.

Details:

  • DOJ press release (May 23, 2024).
  • DOJ agreement (May 23, 2024).
  • DOL agreement (May 3, 2024).

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6. DOS Implements New Visa Restrictions for Certain Georgians

In response to a new “foreign influence” law and related “campaign of intimidation and the use of violence to suppress peaceful dissent,” Secretary of State Antony Blinken announced on May 23, 2024, that it is implementing “a new visa restriction policy for Georgia that will apply to individuals who are responsible for or complicit in undermining democracy in Georgia, as well as their family members.” He said this includes “individuals responsible for suppressing civil society and freedom of peaceful assembly in Georgia through a campaign of violence or intimidation.”

Secretary Blinken said that “anyone who undermines democratic processes or institutions in Georgia—including in the lead-up to, during, and following Georgia’s October 2024 elections—may be found ineligible for U.S. visas under this policy and precluded from travel to the United States.”

Details:

  • DOS press statement (May 23, 2024).

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7. DHS Issues New ‘Western Hemisphere Parole’ Class of Admission

As part of the Biden administration’s actions to manage regional migration and facilitate “safe, orderly, and humane processing of migrants,” the Department of Homeland Security (DHS) has issued a new class of admission (COA), Western Hemisphere Parole (WHP). Individuals with this COA can be paroled into the United States, on a case-by-case basis, for up to three years. Such parolees are not authorized to work incident to their parole, DHS said, and must have an Employment Authorization Document (EAD) if they wish to work. DHS said that Systematic Alien Verification for Entitlements can provide an initial verification response of parolee with a COA of WHP. The initial response may also include work authorization information if the parolee has an EAD.

DHS noted that WHP parolees may have more than one valid immigration status or category and may also present valid immigration documents that demonstrate other pending applications or approved statuses or categories.

Cuban and Haitian nationals who are paroled into the United States under the WHP COA may be eligible to receive certain public benefits, DHS said.

Details:

  • New COA for Western Hemisphere Parole (DHS notice), May 13, 2024.
  • S. Government Announces Sweeping New Actions to Manage Regional Migration (DHS fact sheet), Apr. 27, 2023.

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8. SAVE Requires Users to Review New Tutorial

Systematic Alien Verification for Entitlements (SAVE) is requiring users to review a new tutorial that “provides up-to-date guidance to help SAVE users correctly and efficiently use SAVE to verify benefit applicants.” The tutorial takes about 15 to 20 minutes to complete.

Effective May 28, 2024, SAVE users must review the new tutorial and certify completion of their review before creating new SAVE cases. SAVE users “are encouraged to review the tutorial now,” U.S. Citizenship and Immigration Services (USCIS) said.

Details:

  • SAVE Requires Users to Review New Tutorial, USCIS, May 13, 2024.

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9. Representatives Send Letter to USCIS Director Expressing Concerns About Work Authorization Process for Asylees and Humanitarian Parolees

Sixteen members of Congress sent a letter to Ur Jaddou, Director of U.S. Citizenship and Immigration Services (USCIS), with a copy to David Neal, Director of the Executive Office for Immigration Review, expressing their concerns with the process for submitting Employment Authorization Document (EAD) applications for asylees and humanitarian parolees.

The letter notes barriers that may prevent EAD-eligible individuals from completing their forms and receiving work authorization. Most notably, the letter says that “the cost of filing a Form I-765 (an application for employment authorization) ranges from $470 to $520 starting April 1, 2024 for parole-based EAD submissions. Although parolees can apply for a fee waiver with Form I-912, there is no option to file it online, despite the fact that form I-765 can be completed online and a discount is offered for doing so. Additionally, both the Form I-765 and the Form I-912 are only available in English.” Furthermore, the letter states, the EAD application “is a lengthy, multi-step process, which may require assistance from an attorney or translator to complete.”

The letter asks several questions, and the signers offer to work with the Biden administration “to resolve agency-level barriers for EAD applicants in order to shorten processing and adjudication times.”

Details:

  • Letter to Ur Jaddou, May 8, 2024.

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10. DOJ Secures Agreement With National Home Healthcare Company to Resolve Immigration-Related Employment Discrimination Claims

The Department of Justice (DOJ) announced on May 15, 2024, that it secured a settlement agreement with Maxim Healthcare Services (Maxim), a home healthcare company based in Columbia, Maryland, with operations in 35 states. The agreement resolves DOJ’s determination “that Maxim violated the Immigration and Nationality Act (INA) at its Gardena, California, office by discriminating against a non-U.S. citizen worker when it rejected her valid document showing her permission to work and requiring lawful permanent residents working for the company to prove their continued permission to work even though it was unnecessary.”

Specifically, DOJ determined that the company rejected the worker’s employment authorization document (EAD) “because the last name on it was different from the last name on her driver’s license and Social Security card, even though the company accepted documents from U.S. citizens under similar circumstances and believed that the EAD reasonably appeared to be genuine and to relate to the worker,” DOJ said. The investigation also determined that Maxim routinely required lawful permanent residents to present unnecessary documentation when their Permanent Resident Cards expired.

Under the settlement, Maxim will pay a civil penalty of $7,488 to the United States and $1,750 in lost wages to the affected worker, train its employees on the INA’s anti-discrimination requirements, revise its employment policies and processes, and be subject to monitoring by DOJ.

Details:

  • DOJ press release (May 15, 2024).
  • Settlement agreement (May 15, 2024).

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11. Retrogression Likely in EB-2 and EB-3 Categories, Visa Bulletin for June 2024 States

The Department of State’s (DOS) Visa Bulletin for June 2024 notes that high demand in the employment-based second (EB-2) and third (EB-3) categories will most likely necessitate retrogression of the worldwide final action date (including Mexico and Philippines) next month to hold number use within the maximum allowed under the fiscal year 2024 annual limit. The bulletin states that DOS will monitor this situation and make any necessary adjustments.

The bulletin also notes that the National Defense Authorization Act (NDAA) for Fiscal Year 2024, signed into law on December 22, 2023, may affect certain current and former employees of the U.S. government abroad applying for Special Immigrant Visas (SIVs) abroad or adjustment of status in the United States. This does not affect certain Iraqis and Afghans, the bulletin notes, adding that applicants “should contact the consular section at which they filed their Form DS‑1884 for further information on the impact of that law on their case.”

Details:

  • DOS Visa Bulletin for June 2024.

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12. USCIS Clarifies Policy on Location of H-3 Training

On May 8, 2024, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance clarifying when H-3 nonimmigrants may participate in training provided on the property of an academic or vocational institution. USCIS noted that this was a clarification rather than a change in policy.

USCIS explained that generally, H-3 trainees “cannot participate in training provided primarily at or by an academic or vocational institution.” The updated policy guidance clarifies that “if other H-3 requirements are met, training that happens to take place on the physical property of an academic or vocational institution may qualify if the training program is primarily created, offered, and sponsored by a government agency or other nonacademic or nonvocational entity.”

Details:

  • USCIS alert (May 8, 2024).

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13. OFLC Seeks Comments on Proposed Three-Year Extension of Labor Condition Application and WH-4 Forms for H-1B, H-1B1, and E-3 Temporary Programs

The Department of Labor’s (DOL) Employment and Training Administration (ETA) announced its intent to extend the Office of Foreign Labor Certification’s Labor Condition Application (LCA) forms and the Wage and Hour Division’s WH-4 complaint form for three years and invited public comments until July 5, 2024. DOL proposes the extensions without changes.

The information collection request includes LCA Forms ETA-9035, ETA-9035E (electronic), ETA-9035 and 9035E Appendix A, ETA-9035CP Instructions, and the WH-4 complaint form.

Written comments must be submitted in accordance with the notice’s instructions.

Details:

  • OFLC notice (scroll to May 6, 2024).
  • Federal Register notice (with a link to submit comments) (May 6, 2024).

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14. DOL Ratifies Final H-2A Rule’s AEWR Methodology

The Department of Labor (DOL) published a notice stating that the Assistant Secretary for Employment and Training (ETA) ratified a final H-2A rule published February 28, 2023, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States. The ratification was signed on May 3, 2024.

The notice explains that the final rule has become the subject of litigation asserting that the final rule was improperly issued. Specifically, a question concerns whether the final rule was approved by the Attorney General in consultation with the Secretaries of Labor and Agriculture. The notice states that on April 29, 2024, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and Agriculture, approved the final rule. Before its issuance in February 2023, the final rule was provided to the Departments of Homeland Security and Agriculture through an interagency review process, the notice says. To “resolve any possible uncertainty,” the DOL, through its Assistant Secretary for Employment and Training, is ratifying the final rule “out of an abundance of caution.”

The ratification certifies, among other things, that “the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed, and that the changes adopted in the Final Rule best strike the balance between the statute’s competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages of workers in the United States similarly employed.”

Details:

  • DOL ratification notice, 89 Fed. Reg. 38838 (May 8, 2024).

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15. DOJ Secures Agreement With Climate Nonprofit to Resolve Immigration-Related Employment Discrimination Claims

The Department of Justice (DOJ) announced that it secured a settlement agreement with Second Nature, a nonprofit organization based in Massachusetts, on May 9, 2024. The agreement resolves DOJ’s determination that Second Nature violated the Immigration and Nationality Act (INA) by posting discriminatory job advertisements that deterred non-U.S. citizens from applying for open positions.

DOJ explained that after opening an investigation based on a worker’s complaint, its Civil Rights Division’s Immigrant and Employee Rights Section (IER) concluded that “Second Nature posted a job advertisement inviting applications only from U.S. citizens. In doing so, the company deterred non-U.S. citizens with permission to work (such as people granted asylum or refugee status, and lawful permanent residents) from applying to the job advertisements and being fairly considered for the employment opportunities.” The investigation also determined that “the lawful permanent resident who filed the complaint was deterred from applying for the job because of the discriminatory language in the posting.”

Under the settlement, Second Nature will pay a $4,610 civil penalty to the United States and pay the affected worker $904 in lost wages. The agreement also requires the company to train those employees who recruit on the INA’s requirements, revise its employment policies, and be subject to monitoring and reporting requirements.

Details:

  • DOJ press release (May 9, 2024).
  • Settlement agreement (May 9, 2024).

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16. ABIL Global: France

A new law to control immigration entered into force on January 26, 2024.

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

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

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

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

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

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

Legislative Changes

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

Talent Passport Residence Permits

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

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

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

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

Regularization of Undocumented Workers in Short-Staffed Professions

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

Olympic Games 2024

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

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

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

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

Absence of Transposition of EU Blue Card Directive

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

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

French authorities had two months to respond and complete the transposition. Failing this, the Commission could issue a reasoned opinion and, in the absence of a response, bring the matter before the EU Court of Justice. As of May 30, 2024, there was no update regarding the transposition of the EU Blue Card Directive into French law, and the Commission had not yet issued its opinion.

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

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New Publications and Items of Interest

Webinar on Farmworker Protection Final Rule: The Department of Labor (DOL) will host a public webinar on Thursday, June 6, 2024, from 1 to 2 p.m. for employers, agricultural associations, farm labor contractors, farmworkers, advocates, and others on changes to the H-2A and Wagner-Peyser Employment Service programs made by the 2024 Farmworker Protection Final Rule. Participants will hear from DOL’s Office of Foreign Labor Certification (OFLC), the Office of Workforce Investment, and the Wage and Hour Division about key aspects of the rule. The Final Rule is effective June 28, 2024. OFLC will begin accepting applications subject to the provisions of the rule on August 29, 2024. OFLC’s announcement is here (scroll to May 21, 2024).

Fact Sheet on I-9 Fine Calculations: Homeland Security Investigations has released a fact sheet for employers on fine calculations for Form I-9, Employment Eligibility Verification.

CIS Ombudsman: New features for case assistance requests. On May 9, 2024, the Citizenship and Immigration Services Ombudsman announced new features “to improve the case assistance request experience.” The new features include updates to the DHS Form 7001, Request for Case Assistance page. For example, the form is now interactive with a progress bar, sections that adapt questions based on answers, alerts for missing information, and a screen for reviewing and editing answers before submitting.

USCIS EB-5 Q&A update. U.S. Citizenship and Immigration Services (USCIS) updated its questions and answers on the EB-5 program in May 2024.

HHS final rule on DACA/noncitizen eligibility for Qualified Health Plans. Effective November 1, 2024, a final rule issued by the Department of Health and Human Services provides that Deferred Action for Childhood Arrivals recipients and certain other noncitizens will be included in the definitions of ‘”lawfully present’” that are used to determine eligibility to enroll in a Qualified Health Plan through an Exchange, for Advance Payments of the Premium Tax Credit and Cost-Sharing Reductions, or for a Basic Health Program.

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 several new blog posts: Considerations for Early-Career Scholars and EB-1B Outstanding Researcher/Professor Petitions, Digital Nomad Visa Programs: An APAC Update, and Visa Reconsideration and Fee Waiver for Applicants Impacted by Presidential Proclamation 9645.

Klasko Immigration Law Partners, LLP, has published The Immigration Considerations to Attract and Retain Remote Staff Working Abroad. In the article, Klasko attorneys Tim D’Arduini, Jordan Gonzalez, and Sarah Holler outline the numerous considerations employers must consider when putting together a global remote work policy, from visas and work authorization to tax and labor law considerations.

Charles Kuck was interviewed on NewsNation about border issues. He corrected some facts and put the blame for a broken immigration system on Congress.

Mr. Kuck was quoted by the Atlanta Journal-Constitution in In Atlanta, Long Lines of Migrants Reflect Surge at Border. Commenting on long lines at Atlanta’s U.S. Immigration and Customs Enforcement office, Mr. Kuck said, “I haven’t seen this in 25 years.”

Cyrus Mehta has authored a new blog post: Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected?

Mr. Mehta and Kaitlyn Box have authored several new blog posts: Ethical Obligations of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System After Trump’s Conviction, Saving the Labor Certification for the Backlogged Beneficiary Even After the Job Has Changed, and The Much Neglected Schedule A, Group II Green Card Option Gets a Boost After USCIS Broadens the Sciences and Arts Definition.

David Isaacson, of Cyrus D. Mehta & Associates, PLLC, has authored a new blog post: Harrow v. Department of Defense and What it Means for Immigration Cases: The 30-Day Time Limit for Filing a Petition for Review Is Still Very Important, But Probably Not Jurisdictional Anymore.

Stephen Yale-Loehr and another professor at Cornell Law School have secured a $1.5 million grant from Bay Area humanitarian foundation Crankstart to fund Path2Papers, an innovative nonprofit that provides legal assistance to Deferred Action for Childhood Arrivals (DACA) recipients and DACA-eligible individuals. Based at Cornell Law, Path2Papers offers legal consultations and guidance to DACA-eligible San Francisco Bay-area residents and Cornell students, the Cornell Daily Sun explained. “Path2Papers’ ties to Cornell extend even further. The programs legal team is composed of five lawyers, three of whom are Cornell alumni. It will also be the focus of Cornell Law’s 1L Immigration Law and Advocacy Clinic.” Mr. Yale-Loehr said that DACA’s precarity highlights the importance of Path2Papers’ work. “The DACA program could be terminated by the courts or [a] new administration, [and] many DACA recipients don’t know if they’ll have legal residency options.” Path2Papers has already yielded results, the Daily Sun noted. “Since the program’s launch in January, over 130 DACA or DACA-eligible individuals and employers have registered for a consultation, 50 percent of whom—the Path2Papers’ team has found—are potentially eligible for a work-related visa or green card.”

Mr. Yale-Loehr authored an op-ed, Commentary: A Match Made in New York: Job Openings and Immigrants, published by the Albany, NY Times Union. The article discusses New York’s population outmigration and plethora of job openings and recommends ways to remove obstacles so immigrants can fill them.

Mr. Yale-Loehr was quoted by Univision in Biden’s New Asylum Rule Submitted for Public Comment: These are the Keys. The article (in Spanish, with English translation available) discusses a new proposed rule to allow asylum officers to consider the possible applicability of certain asylum prohibitions and legal withholding of removal during certain credible fear assessments. The measure will be “challenged in courts of law,” Mr. Yale-Loehr said, noting that it is “much more limited than previous ideas that were proposed, such as an executive action that prevents certain people from even entering the United States.” He said the prohibitions authorized during the initial credible fear evaluation stage “will be the subject of a judicial dispute.”

Mr. Yale-Loehr was quoted by Voice of America in Biden Proposal Would Target Some Migrants for Quicker Denial of Asylum. He said the Biden administration is between “a rock and a hard place” and that “the public is demanding immigration changes. The Biden administration seems damned if it tries to do anything to resolve the border crisis and damned if it doesn’t.”

Mr. Yale-Loehr was quoted by Marketplace Morning Report in Biden Administration Rule Will Give DACA Recipients Access to Federal Health Insurance for the First Time. He noted that there are about 600,000 DACA recipients living in the United States now. “The new rule estimates that about 100,000 of them are currently uninsured and can qualify for this kind of health insurance through the Affordable Care Act because of the relatively low incomes they are earning.”

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-06-02 10:14:242024-06-10 18:26:19ABIL Immigration Insider • June 2, 2024

ABIL Immigration Insider • May 5, 2024

May 05, 2024/in Immigration Insider /by ABIL

In this issue:

1. USCIS Reports Statistics on Employers and Beneficiaries for FY 2025 H-1B Cap Initial Registration – Following up on U.S. Citizenship and Immigration Services’ (USCIS) previous announcement that it had received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year 2025 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap), USCIS reported several statistics in an email blast.

2. USCIS Reminds Certain Employment-Based Petitioners to Submit Correct Fees – A new added FAQ asks, How can I make sure that my filing is not rejected at intake for incorrect fees? U.S. Citizenship and Immigration Services’ response emphasizes the differences between “small employer” and “nonprofit” status and includes examples with details.

3. CBP Issues 30-Day Request for Comments on Arrival/Departure Record and Electronic System for Travel Authorization – Comments are due by May 30, 2024.

4. DOL Amends Regulations on Certification for Temporary/Seasonal Nonimmigrant Agricultural Workers – Effective June 28, 2024, the Department of Labor is amending its regulations governing certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural work and enforcement of contractual obligations applicable to their employers.

5. USCIS Agrees to Refund Ukrainians for I-765 Fees – U.S. Citizenship and Immigration Services (USCIS) announced on April 24, 2024, that it is refunding all of the I-765 work permit fees collected from eligible Ukrainian parolees who entered as parolees after February 24, 2022.

6. DOS Issues Final Rule on Exchange Visitor Program Provisions – The Department of State issued a final rule, effective May 23, 2024, on Exchange Visitor Program regulations that apply to J-1 sponsors. The final rule includes a requirement for digital signatures when signing the Form DS-2019.

7. USCIS to Open International Field Offices in Qatar and Turkey – U.S. Citizenship and Immigration Services announced the opening of international field offices in May in Doha, Qatar, and Ankara, Turkey.

8. Cap Reached for Additional Returning Worker H-2B Visas for Early Second Half of FY 2024 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year 2024 with start dates from April 1 to May 14, 2024.

9. DOS Announces New Exchange Visitor Program for Japan – The program authorizes an exception under the Specialist category in the Exchange Visitor Program regulations to permit Japanese language and culture specialists to stay up to 36 months in the United States on J-1 visas.

10. USCIS Updates Fee Schedule for Petition for a Nonimmigrant Worker (I-129) – U.S. Citizenship and Immigration Services has updated its fee schedule for Form I-129, Petition for a Nonimmigrant Worker—H-1B and H-1B1 Petitions, to reflect the additional required fees for online filings.

11. DHS Provides Work Authorization for Certain Ethiopian and Palestinian Students in F-1 Nonimmigrant Status – Covered students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant status.

12. DOS Suspends Visa Services in Haiti – The U.S. Embassy in Port-au-Prince has suspended routine immigrant and nonimmigrant visa appointments until further notice.

13. DOJ Secures Agreement to Resolve Claims of Immigration-Related Discrimination at Washington University School of Medicine – The agreement resolves the Department of Justice’s determination that Washington University School of Medicine in St. Louis violated the Immigration and Nationality Act by discriminating against a worker, who had been granted asylum, based on his citizenship status and then retaliating against him for complaining about the discrimination.

14. Non-Minister Special Immigrant Religious Workers Category Extended – H.R. 2882, signed into law on March 23, 2024, extended the Employment Fourth Preference Certain Religious Workers (SR) category until September 30, 2024.

15. DOS Seeks Comments on Attestation for Employers Seeking H-2B Nonimmigrant Workers – The Department of State seeks comments on an Employment and Training Administration information collection request that supports a temporary final rule, Exercise of Time-Limited Authority to Increase the Numerical Limitation for Fiscal Year 2024 for H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking to Change Employers.

16. Expansion of Schedule A, Group II Definition to Support STEM Talent – The U.S. Citizenship and Immigration Services has expanded the “science or art” categories within Schedule A, Group II to include any field of knowledge or skill for which colleges and universities commonly offer courses leading to a degree.

17. New Audit Measures for EB-5 Regional Centers – The U.S. Citizenship and Immigration Services has announced new audit measures under the EB-5 Reform and Integrity Act of 2022, affecting all designated regional centers.

18. Employment Authorization Granted to Eligible Palestinians Under DED – Effective immediately, Palestinians covered by Deferred Enforced Departure are eligible to apply for work permits valid through August 13, 2025.

19. ABIL Global: Switzerland – There have been developments toward easier access to the Swiss labor market for certain professions.

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-May-2024


1. USCIS Reports Statistics on Employers and Beneficiaries for FY 2025 H-1B Cap Initial Registration

Following up on U.S. Citizenship and Immigration Services’ (USCIS) previous announcement that it had received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year (FY) 2025 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap), USCIS reported several statistics in an email blast:

  • The agency “selected 114,017 beneficiaries, resulting in 120,603 selected registrations in the initial selection for the FY 2025 H-1B cap.”
  • During the registration period for the FY 2025 H-1B cap, the agency “saw a significant decrease in the total number of registrations submitted compared to FY 2024, including a decrease in the number of registrations submitted on behalf of beneficiaries with multiple registrations.”
  • The number of unique beneficiaries this year for FY 2025 (approximately 442,000) was comparable to the number last year for FY 2024 (approximately 446,000). The number of unique employers this year for FY 2025 (approximately 52,700) was also comparable to the number last year for FY 2024 (approximately 52,000), USCIS said.

USCIS has notified all prospective petitioners with selected beneficiaries that they are eligible to file H-1B cap-subject petitions for those beneficiaries.

Details:

  • USCIS alert (Apr. 1, 2024). See also FY 2025 H-1B Cap Registration Process Update (scroll down).

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2. USCIS Reminds Certain Employment-Based Petitioners to Submit Correct Fees

U.S. Citizenship and Immigration Services (USCIS) announced on April 29, 2024, that it has updated its Frequently Asked Questions on the USCIS Fee Rule “to help certain employment-based petitioners understand how to submit the correct required fees.”

A new added FAQ asks, How can I make sure that my filing is not rejected at intake for incorrect fees? USCIS’s response emphasizes the differences between “small employer” and “nonprofit” status and includes examples with details on how USCIS determines the required fees based on the various types of petitions and the employer’s responses to questions in the petition, and how employers should answer the questions and calculate the fees.

For example, for Form I-129, Petition for a Nonimmigrant Worker, USCIS provides several tips, including:

Part 5, Question 14 asks for your “Current Number of Employees in the United States.” If you check “Yes” to Part 5, Question 15, and you answer Question 14 with a number greater than 25, then your supporting documentation should demonstrate how you calculated the number of full-time equivalent employees as 25 or fewer. If we cannot determine the number of full-time equivalent employees, we may reject your petition.

Details:

  • USCIS alert (Apr. 29, 2024).

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3. CBP Issues 30-Day Request for Comments on Arrival/Departure Record and Electronic System for Travel Authorization

U.S. Customs and Border Protection (CBP) seeks comments on the Arrival/Departure Record (Form I-94) and the Electronic System for Travel Authorization (ESTA).

Comments are due by May 30, 2024, using the method described in the notice, which also provides contact information for those seeking additional information.

Details:

  • CBP notice, 89 Fed. Reg. 34262 (Apr. 30, 2024).

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4. DOL Amends Regulations on Certification for Temporary/Seasonal Nonimmigrant Agricultural Workers

Effective June 28, 2024, the Department of Labor (DOL) is amending its regulations governing certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural work and enforcement of contractual obligations applicable to their employers. The revisions in the final rule “focus on strengthening protections for temporary agricultural workers and enhancing [DOL’s] capabilities to monitor program compliance and take necessary enforcement actions against program violators.” DOL said it determined the need for these revisions “through program experience, recent litigation, challenges in enforcement, comments on this rulemaking as well as on prior rulemakings, and reports from various stakeholders.”

The regulatory revisions include provisions to protect workers’ voices and empowerment; clarify termination for cause; designate an immediate effective date for adverse effect wage rate updates; enhance transparency for job opportunities and foreign labor recruitment; enhance transparency and protections for agricultural workers; enhanced enforcement capabilities; and the definitions and factors used in determining terms such as what constitutes a “single employer” or a “successor in interest.”

Details:

  • DOL final rule, 89 Fed. Reg. 33898 (Apr. 29, 2024) (advance copy).

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5. USCIS Agrees to Refund Ukrainians for I-765 Fees

U.S. Citizenship and Immigration Services (USCIS) announced on April 24, 2024, that it is refunding all of the I-765 employment authorization document (EAD) fees collected from eligible Ukrainian parolees who entered as parolees after February 24, 2022. The action is a result of a class action lawsuit against USCIS.

IMMpact sued USCIS in August 2022 for failing to carry out provisions in the 2022 Ukraine supplemental bill, which mandated that Ukrainian parolees be provided automatic, free employment authorization. As a result of the litigation, IMMpact noted, USCIS changed its policy to recognize automatic work authorization in November 2022 but failed to refund unlawfully collected I-765 EAD fees for applications received before that date. IMMpact filed a second suit in 2023 to recover those funds for tens of thousands of Ukrainians.

USCIS will refund the filing fee Ukrainians paid for their initial EADs if they:

  • Were paroled under the Uniting for Ukraine process or were paroled between February 24, 2022, and September 30, 2023;
  • Filed their initial Form I-765 between May 21, 2022, and November 21, 2022, based on their parole; and
  • Paid a filing fee of $410.

IMMpact is a collaboration of the firms Bless Litigation in Boston, Massachusetts; Joseph & Hall in Denver, Colorado; Kuck Baxter in Atlanta, Georgia; and Siskind Susser in Memphis, Tennessee.

Details:

  • IMMpact Litigation press release (Apr. 25, 2024).
  • Refund information and form, USCIS (N.D.)
  • For further information or updates on the lawsuit, email Greg Siskind at [email protected].

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6. DOS Issues Final Rule on Exchange Visitor Program Provisions

The Department of State (DOS) issued a final rule, effective May 23, 2024, on J-1 exchange visitor program regulations that apply to sponsors that DOS designates to conduct international educational and cultural exchange programs. The final rule includes a requirement for digital signatures when signing the Form DS-2019, Certificate of Eligibility for Exchange Visitor Status.

DOS noted that most of the 64 commenters addressed two topics: sponsor preference for electronic signatures rather than digital signatures, and the need for sponsors to electronically transmit Forms DS-2019 directly to third parties acting on their behalf. After consideration, DOS has retained the requirement for digital signatures for signing Forms DS-2019, and it makes no changes to the list of entities to which sponsors may transmit Forms DS-2019 electronically. However, the final rule will allow third parties to retrieve Forms DS-2019 directly from sponsors’ password-protected computer network systems and/or databases. “This modification allows third parties to retrieve copies of digital Forms DS-2019 directly from sponsors that wish to give them such access,” the rule notes. DOS will also continue to allow sponsors to “wet sign” and physically mail Forms DS-2019 to exchange visitors and/or third parties.

DOS explained that a digital signature, which requires digital signature software, provides a “higher level of security” over an electronic signature.

Details:

  • DOS final rule, 89 Fed. Reg. 30268 (Apr. 23, 2024).

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7. USCIS to Open International Field Offices in Qatar and Turkey

On April 23, 2024, U.S. Citizenship and Immigration Services (USCIS) announced the opening of international field offices in May in Doha, Qatar, and Ankara, Turkey, available by appointment, “to increase capacity for refugee processing, strengthen strategic partnerships, and facilitate interagency cooperation.” USCIS Director Ur M. Jaddou said that opening these field offices “establishes a USCIS presence and expertise in critical locations in the Middle East.”

USCIS noted that the Biden administration set the refugee admissions ceiling for fiscal year 2024 at 125,000 refugees. Establishing USCIS field offices in Qatar and Turkey will support the U.S. Refugee Admissions Program’s infrastructure in the region and will directly support long-established and increasing USCIS refugee processing circuit rides, USCIS said.

With the opening of the Doha field office on May 7, 2024, and the Ankara field office on May 9, 2024, USCIS will have 11 international field offices. The others include Beijing and Guangzhou, China; Guatemala City; Havana, Cuba; Mexico City; Nairobi, Kenya; New Delhi, India; San Salvador, El Salvador; and Tegucigalpa, Honduras.

Details:

  • USCIS news release (Apr. 23, 2024).

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8. Cap Reached for Additional Returning Worker H-2B Visas for Early Second Half of FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on April 18, 2024, that it has received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year (FY) 2024 with start dates from April 1 to May 14, 2024, under the H-2B supplemental cap temporary final rule (FY 2024 TFR). USCIS said that April 17, 2024, was the final receipt date for petitions requesting supplemental H-2B visas under the FY 2024 early-second-half-returning-worker allocation.

USCIS said it is still accepting petitions for “H-2B nonimmigrant workers for the additional 20,000 visas allotted for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) who are exempt from the returning worker requirement, as well as those who are exempt from the congressionally mandated cap.”

Starting April 22, 2024, USCIS will begin accepting petitions for workers for the late second half of FY 2024, requesting employment start dates from May 15 to September 30, 2024. USCIS said that the 5,000 visas available under this allocation are limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality.

Details:

  • USCIS alert (Apr. 18, 2024).
  • Temporary Increase in H-2B Nonimmigrant Visas for FY 2024, USCIS (information on the 20,000 visas set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica) (Apr. 18, 2024).

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9. DOS Announces New Exchange Visitor Program for Japan

On April 19, 2024, the Department of State (DOS) announced a new international exchange visitor program for Japan. The program authorizes an exception under the Specialist category in the Exchange Visitor Program regulations to permit Japanese language and culture specialists to stay up to 36 months in the United States on J-1 visas.

The Japan Specialist Program “will expand educational and cultural exchange opportunities between the people of the United States and Japan, promote the interchange of knowledge and skills among foreign and U.S. specialists, and foster long-term mutual understanding and international cooperation with U.S. communities across the United States,” DOS said.

During their program, DOS said, exchange visitors from Japan “will share their specialized knowledge of Japanese language and education in the United States at community based, non-profit organizations, U.S. Government offices, secondary schools, or post-secondary academic institutions offering Japanese, and similar types of institutions to increase U.S. local communities’ understanding of Japan, its culture, and language. Selected experts in Japanese culture and language will gain a better understanding of U.S. culture and society and promote mutual enrichment by enhancing U.S. knowledge of Japanese culture, language, and educational systems.”

Details:

  • DOS notice, 89 Fed. Reg. 28839 (Apr. 19, 2024).

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10. USCIS Updates Fee Schedule for Petition for a Nonimmigrant Worker (I-129)

U.S. Citizenship and Immigration Services (USCIS) has updated its fee schedule for Form I-129, Petition for a Nonimmigrant Worker—H-1B and H-1B1 Petitions, to reflect the additional required fees for online filings.

According to the American Immigration Lawyers Association (AILA), USCIS made the update in response to an AILA query noting that “the information [previously] listed was unclear and could have been construed as an indication that the additional fees, such as the ACWIA fee, the Fraud Detection Fee and Asylum Program fee, were not required if a Form I-129 was filed online.”

Details:

  • AILA Practice Alert (Apr. 19, 2024).
  • USCIS Fee Schedule (I-129, Petition for a Nonimmigrant Worker—H-1B and H-1B1 Petitions) (Apr. 1, 2024).

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11. DHS Provides Work Authorization for Certain Ethiopian and Palestinian Students in F-1 Nonimmigrant Status

The Department of Homeland Security’s U.S. Immigration and Customs Enforcement agency issued notices providing work authorization for certain Ethiopian and Palestinian students in lawful F-1 nonimmigrant status. Covered students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant status.

For covered Ethiopian students, the notice is effective June 13, 2024, through December 12, 2025. For covered Palestinian students, the notice is effective February 14, 2024, through August 13, 2025. See the Federal Register notices for additional details about eligibility.

Details:

  • Ethiopian notice, 89 Fed. Reg. 26161 (Apr. 15, 2024).
  • Palestinian notice, 89 Fed. Reg. 26156 (Apr. 15, 2024).

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12. DOS Suspends Visa Services in Haiti

The Department of State has suspended visa services in Haiti. The U.S. Embassy in Port-au-Prince has suspended routine immigrant and nonimmigrant visa appointments until further notice.

Immigrant visa applicants who can travel to another U.S. embassy or consulate that processes immigrant visas and remain in that country for the duration of their visa processing should consider requesting the transfer of their case from U.S. Embassy Port-au-Prince using the instructions in the DOS notice.

DOS said that the U.S. Embassy in Port au Prince can only accept expedited nonimmigrant visa appointments for life-or-death medical emergencies (with proof of travel plans) or to facilitate travel for a child with a confirmed USCIS appointment for a naturalization interview based on a Form N-600K. Applicants can submit a request for an expedited NIV appointment by following the instructions at https://www.ustraveldocs.com/ht/en/nonimmigrant-visa. Nonimmigrant visa applicants may apply at any embassy or consulate where they are physically present and where appointments are available, DOS said.

Details:

  • DOS notice (Apr. 15, 2024).

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13. DOJ Secures Agreement to Resolve Claims of Immigration-Related Discrimination at Washington University School of Medicine

The Department of Justice (DOJ) announced on April 17, 2024, that it secured a settlement agreement with Washington University, a private university headquartered in St. Louis. The agreement resolves DOJ’s determination that the university’s medical school, known as Washington University School of Medicine in St. Louis (WashU School of Medicine), violated the Immigration and Nationality Act (INA) by discriminating against a worker based on his citizenship status and then retaliating against him for complaining about the discrimination.

Specifically, DOJ said that the Civil Rights Division’s Immigrant and Employee Rights Section (IER) determined that WashU School of Medicine discriminated against the individual, who had been granted asylum, when it repeatedly confronted him about his immigration status, his documentation, and his right to work, even though he had provided sufficient proof of his authorization to work. The department also determined that WashU School of Medicine retaliated against the worker when it terminated his employment for complaining about the discrimination.

Under the terms of the settlement agreement, the school will pay civil penalties of $4,465 to the United States and pay $3,264 in back pay, plus interest, to the affected worker. The agreement also requires the school to train its personnel on the INA’s antidiscrimination requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

Details:

  • DOJ press release (Apr. 17, 2024).
  • Settlement Agreement (Apr. 17, 2024).

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14. Non-Minister Special Immigrant Religious Workers Category Extended

The Department of State’s Visa Bulletin for May 2024 notes that H.R. 2882, signed into law on March 23, 2024, extended the Employment Fourth Preference Certain Religious Workers (SR) category until September 30, 2024.

The bulletin states that no SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight September 29, 2024. Visas issued prior to that date will be valid only until September 29, 2024, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight September 29, 2024.

The bulletin notes that the SR category “is subject to the same final action dates as the other Employment Fourth Preference categories per applicable foreign state of chargeability.”

Details:

  • DOS Visa Bulletin for May 2024.

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15. DOS Seeks Comments on Attestation for Employers Seeking H-2B Nonimmigrant Workers

The Department of State seeks comments on an Employment and Training Administration information collection request that supports a temporary final rule, Exercise of Time-Limited Authority to Increase the Numerical Limitation for Fiscal Year 2024 for H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking to Change Employers.

Details:

  • DOS OMB notice, 89 Fed. Reg. 26937 (Apr. 16, 2024).

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16. Expansion of Schedule A, Group II Definition to Support STEM Talent

In a significant development for employers and individuals involved in the STEM fields, the U.S. Citizenship and Immigration Services (USCIS) has announced an update to the definition of “Schedule A, Group II” occupations, which is part of the agency’s efforts to align more closely with the Department of Labor (DOL) definitions and streamline the permanent residency application process for high-achieving employees. This clarification, as outlined in the latest policy guidance from USCIS, expands the “science or art” categories within Schedule A, Group II, to include any field of knowledge or skill for which colleges and universities commonly offer courses leading to a degree. This change, effective immediately, is designed to enhance the utility of the Schedule A, Group II designation for employers sponsoring employees for permanent residency, particularly in sectors experiencing a shortage of qualified U.S. workers.

The updated policy now explicitly incorporates the DOL’s definition of “sciences or arts,” covering a broader range of occupations than previously eligible. This means that occupations in any field that commonly lead to a degree from higher education institutions, and that demonstrate exceptional ability, are now encompassed under the Schedule A, Group II designation. Importantly, this designation waives the labor market test requirement for EB-2 or EB-3 permanent residency sponsorship applications, facilitating a more efficient pathway to permanent residency for eligible employees. This policy update reflects the current administration’s commitment to retaining STEM talent within the United States and underscores the agency’s ongoing efforts to make the immigration process more accommodating for individuals with exceptional abilities in the sciences and arts.

Details:

  • USCIS alert (Apr. 10, 2024).

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17. New Audit Measures for EB-5 Regional Centers

The U.S. Citizenship and Immigration Services (USCIS) has announced new audit measures under the EB-5 Reform and Integrity Act of 2022, affecting all designated regional centers. Under the 2022 law, USCIS must conduct audits at least once every five years for each regional center. These audits are comprehensive, including a review of necessary documentation maintained by the regional centers and the flow of immigrant investor capital into their projects. This initiative aims to reinforce the credibility and reliability of the EB-5 program by verifying the accuracy of information provided in the regional center applications, annual certifications, and related investor petitions.

In terms of procedure, USCIS will implement audits based on the Generally Accepted Government Auditing Standard, starting April 23. This will provide a standardized approach to assess the regional centers’ compliance with laws and their eligibility for continued designation. It’s important for regional centers to understand that non-compliance during these audits, such as refusing a site visit or attempting to impede the audit process, may lead to termination of their designation. However, adverse findings from an audit do not automatically affect the status of EB-5 associated entities or petitioners unless they directly involve non-compliance or eligibility issues.

USCIS has created a website with additional resources for regional centers, including how to prepare for an audit, participating in an audit, and more.

Details:

  • USCIS Alert (Apr. 9, 2024).
  • EB-5 Regional Center Audits (Apr. 9, 2024)

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18. Employment Authorization Granted to Eligible Palestinians Under DED

U.S. Citizenship and Immigration Services (USCIS) has issued a significant update for Palestinians in the United States, as detailed in a recent Federal Register notice. Effective immediately, Palestinians covered by Deferred Enforced Departure (DED) are eligible to apply for Employment Authorization Documents (EADs) valid through August 13, 2025. This follows a memorandum issued by President Biden on February 14, 2024, which defers the removal of certain Palestinians present in the U.S. from the time of the announcement through August 13,2025. The memorandum directs the Department of Homeland Security to implement measures facilitating work authorization for eligible Palestinians and excludes individuals who entered the U.S. after February 14, 2024 from DED eligibility. Applicants will need to provide acceptable documentation, such as a Palestinian Authority passport or identification card, to support their applications.

Additionally, the announcement includes provisions for Special Student Relief for Palestinian F-1 nonimmigrant students, allowing them to request employment authorization, work more hours during the school session, and reduce their course load while maintaining their F-1 status. These measures aim to assist Palestinians in maintaining economic stability and educational pursuits during their stay in the U.S. under DED. USCIS has committed to adjudicating each EAD application on a case-by-case basis, ensuring a fair, humane, and efficient process.

Details:

  • USCIS notice (Apr. 12, 2024).

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19. ABIL Global: Switzerland

There have been developments toward easier access to the Swiss labor market for certain professions.

Efforts to provide easier access to the Swiss labor market for certain professions include the default for non-European Union (EU)/European Free Trade Association (EFTA) nationals: a Swiss labor market test requirement.

By giving priority to the domestic labor market, the aim is to increase local workers’ chances of finding a job and to limit the entry of new foreign workers to meet the requirements of the labor market. With its two-tier structure, the system works in favor of domestic workers and workers from EU/EFTA states who can invoke the Agreement on the Free Movement of Persons between the EU/EFTA countries and Switzerland and are entitled to admission to the Swiss labor market.

In addition to Swiss nationals, domestic persons include those who are foreign nationals seeking employment who already live in Switzerland and are authorized to take up gainful employment. The admission of third-country nationals is therefore only possible if, in addition to the domestic and local labor force, there are no suitable workers from the EU/EFTA area for the Swiss labor market.

Occupations With a Pronounced Shortage of Skilled Labor

Within the last year, the following possible exemptions from the labor market test requirement have been added for consideration by labor market and migration authorities:

In occupations that are demonstrably affected by a pronounced structural shortage of skilled labor, it can be assumed that the domestic potential has been exhausted. If the demand for skilled labor in a particular occupation exceeds the supply under the given working conditions, a shortage of skilled labor can be assumed. However, skills shortages are not absolute, but they can vary in severity. The focus is on structural imbalances, which—in contrast to cyclical fluctuations between supply and demand for skilled labor—exist over a longer period of time.

These are often skilled workers who are not, or only insufficiently, available in the EU/EFTA area. For applications for residence for employment in occupations that are demonstrably affected by a pronounced shortage of skilled labor, the legally stipulated provision of proof of priority in enforcement can be facilitated.

In such cases, the authorities responsible for the preliminary labor market decision may refrain from demanding concrete search efforts. By plausibly demonstrating in an application that there is a shortage occupation in the specific case, the applicant company can fulfil the obligation to provide evidence. In this case, the competent cantonal authority can make the judgement that the domestic potential has been exhausted and that the priority principle is therefore fulfilled.

Taking into account the State Secretariat for Economic Affairs (SECO) indicators and empirical values from the State Secretariat for Migration (SEM), the following occupational fields may fall under the facilitation of enforcement with regard to the obligation to provide evidence:

  • Executives (management positions) in research and development; health care; education; information and communication technology; management consultancy; finance and insurance; the mechanical, electrical, and metal industry; and the production of chemical and pharmaceutical products and food products;
  • Business administration specialists in management and organizational analysis;
  • Engineering professionals (process and production engineers; civil engineers; engineers in electrical engineering, electronics, and telecommunications), natural scientists, mathematicians and engineers and specialists in information and communication technology (IT engineers, system analysts, software developers, application programmers, database and network specialists);
  • Certain healthcare professionals: Medical specialists, medical assistants, physiotherapists, qualified nurses (with specialization), other medical specialization, other medical-technical specialists (e.g., medical-technical radiology assistants); and
  • University and college teachers.

If the facts of the case are critical, or if the competent cantonal authority sees a reason to do so, it can request suitable special evidence (e.g., advertisement of the vacant position on the public unemployment system site or in the EU/EFTA area or reference to the skilled labor situation in the EU/EFTA area). The reasons for this could include the cantonal labor market situation, regional economic priorities, or macroeconomic interests.

The above is not a blanket exemption from the labor market test requirement but gives authorities discretion to grant work permit approvals without labor market testing for these types of employment. Individual case evaluation thus remains as vital as ever.

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New Publications and Items of Interest

The May webinar schedule for the Systematic Alien Verification for Entitlements (SAVE) program includes:

Current Users and Best Practices. This 60-minute webinar is for registered SAVE users. The presentation includes:

  • An in-depth look at the verification process
  • Highlights of SAVE’s Case Management, Agency Management, and User Management features
  • An overview of SAVE resources and customer support features
  • An interactive Q&A session

SAVE Program Overview. This 30-minute webinar provides users with an overview of:

  • How SAVE works
  • SAVE registration
  • SAVE Resources and support

New court requirements and legal guidance on AI use: The American Immigration Lawyers Association’s Practice and Professionalism Center has released Tracking New Court Reporting Requirements on Lawyer AI Use. The article provides links to resources to help practitioners keep up with the changing landscape of artificial intelligence (AI), including:

  • Ropes and Grey Standing Orders and Local Rules on the Use of AI. Breaks down what type of AI uses are required to be reported by each court, with color coding and a U.S. map.
  • Law360 Tracking Federal Judge Orders on Artificial Intelligence. Tracks federal court orders on AI.
  • Ballard Spahr AI Legislation and Litigation Tracker. Includes information on current AI legislation and litigation.
  • BCLP Us State-by-State AI Legislation Snapshot. Provides information on AI-related legislation state by state.
  • Bloomberg Law Legal Profession, Professional Perspective – Bar Associations Begin to Tackle AI & the Practice of Law. This article surveys AI and the practice of law, including developments in bar association guidance from California, Florida, New York, other state bar associations, and the American Bar Association.
  • SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) offers a series of webinars and customized tutorials for prospective, new, or current user agencies. Pre-registration is not required.
  • OFLC CW-1 webinar materials: On March 26, 2024, the Office of Foreign Labor Certification (OFLC) conducted a webinar to provide an overview on common issues the National Processing Center has identified with CW-1 Applications for Temporary Employment Certification and offered filing tips that can minimize common application errors. The presentation materials are now located under the “Webinars” tab at the bottom of the CW-1 Program page at https://www.dol.gov/agencies/eta/foreign-labor/programs/cw-1.

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

Several ABIL member firms were named in Canadian Lawyer‘s top 10 immigration boutiques for 2024-25, including Gomberg Dalfen S.E.N.C. and Corporate Immigration Law Firm (CILA). Canada’s best immigration law firms were selected from a pool of 47 nominees, include boutiques of varying sizes. Barbara Jo Caruso, CILA co-president and founding partner, said, “In Canadian Lawyer‘s announcement of who’s who and who is succeeding, there’ll be a common thread that these people haven’t gotten there on their own. Regardless of where you’re practicing immigration law, to succeed, immigration lawyers need a community to bounce ideas off of to keep abreast of all the changes.”

The IMMpact Litigation team (Kuck Baxter, Joseph & Hall, Bless Litigation, and Siskind Susser), along with Motley Rice, reported a major victory. On the eve of class certification, U.S. Citizenship and Immigration Services agreed to refund 100 percent of the I-765 filing fees for 100,000+ Ukrainian parolees covered by IMMpact’s Volkova lawsuit. See the press release and web link for Ukrainian clients to request a refund check. For further information or updates on the lawsuit, email Greg Siskind at [email protected].

Klasko Immigration Law Partners welcomes Jessica DeNisi as its newest partner. Effective May 6, 2024, Jessica will rejoin Klasko Immigration to co-lead the EB-5 Regional Center and Developer Practice from the firm’s Washington, DC, office, contributing significantly to the firm’s continued growth in this area.

Klasko Immigration Law Partners welcomes Brian Green to its esteemed Immigration Litigation Practice Team. Brian joins the firm as Of Counsel and will play a key role in supporting clients through strategic litigation who are facing delays and improper denials. Brian brings over a decade of experience in successfully litigating more than 1,000 immigration cases. His extensive expertise includes navigating complex legal challenges and advocating for clients’ rights in diverse immigration matters. He is admitted to practice before 30 district courts, all circuit courts of appeal, and the Supreme Court. He is currently Vice Chair of the American Immigration Lawyers Association’s National Benefits Litigation Committee and regularly presents on addressing immigration problems through litigation at CLE conferences across the country.

Cyrus Mehta and Kaitlyn Box have authored a new blog post: The Much Neglected Schedule A, Group II Green Card Option Gets a Boost After USCIS Broadens the Sciences and Arts Definition

Greg Siskind of Siskind Susser PC was quoted by Forbes in Attorney: Biden Officials Should Protect Russian Fulbright Scholars. The article discusses the potential impact on approximately 150 Russian Fulbright scholars and recent alumni in the United States of the Russian government’s declaration that the Institute of International Education, an implementing partner for the Fulbright Program, is an “undesirable organization.” Mr. Siskind explained that if they return to Russia, “Fulbright participants are now subject to suspicion in a country that has a sorry track record for jailing people who disagree with the government.” He discussed various options for Fulbright scholars in the United States.

WR Immigration has published a new blog posting: My I-526E for an Investment in a Rural Project Has Been Approved in 3-4 Months – Now What?

Stephen Yale-Loehr was quoted by the San Francisco Chronicle in Trump Wants Local Police to Enforce Immigration Law. California Forbids It (available by subscription). The article discusses California law SB54, which restricts police officers’ ability to enforce immigration laws. During his presidency, the article explains, Mr. Trump “sought to withhold federal law enforcement grants from cities including San Francisco that had passed so-called sanctuary laws prohibiting police from aiding immigration enforcement.” San Francisco sued and won at the federal district and appellate court levels. The Biden administration ended the Trump administration’s efforts to take the case to the Supreme Court. Mr. Yale-Loehr said that if Mr. Trump were to try the same thing during a second administration, it would likely end up in litigation again. “Courts would have to make a final decision as to whether he could deny funding to those jurisdictions,” he said, noting that in general, it would be harder for Trump to deputize local police for immigration enforcement in places like California that have passed sanctuary laws.

Mr. Yale-Loehr and others have started a new Deferred Action for Childhood Arrivals (DACA) project at Cornell Law School. The nonprofit Path2Papers project, supported by a $1.5 million grant, helps DACA recipients in the San Francisco Bay area pursue work visas and other pathways to legal permanent residence. According to a press release, Path2Papers is one of the only programs in the United States “that combines experience in employer representation with expertise in evaluating employment-based immigration options for DACA recipients.”

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-05-05 17:45:362024-05-24 17:55:26ABIL Immigration Insider • May 5, 2024

ABIL Immigration Insider • April 7, 2024

April 07, 2024/in Immigration Insider /by ABIL

In this issue:

1. USCIS Has Completed FY2025 H-1B Cap Initial Registration – U.S. Citizenship and Immigration Services has completed the selection process for fiscal year 2025 H-1B cap registrations, including the master’s cap.

2. Higher Immigration Fees Took Effect April 1 – Despite pending litigation, higher immigration fees took effect on April 1.

3. USCIS Announces Rule to Increase Automatic Extension Period for Work Permits – U.S. Citizenship and Immigration Services announced a temporary final rule to increase the automatic extension period for certain work permit holders from 180 days to 540 days.

4. USCIS Issues New Guidance on Medical Exam Validity – Immigration medical examinations that were completed and signed by a civil surgeon on or after November 1, 2023, are valid indefinitely. Those examinations completed before November 1, 2023, remain subject to prior policy and the two-year validity period.

5. U.S. District Judge Declines to Temporarily Stop Immigration Fee Increases – A U.S. District Judge in Colorado denied a request for a temporary restraining order to stop immigration fee increases scheduled to take effect April 1, 2024.

6. USCIS Announces Filing Location Change for Certain Employment-Based Forms – U.S. Citizenship and Immigration Services (USCIS) announced that on April 1, 2024, it is changing the filing location from USCIS service centers to a USCIS lockbox for several employment-based forms.

7. USCIS Reminds Employers About H-1B I-129 Filing Location Change and FY 2025 H-1B Cap Updates – U.S. Citizenship and Immigration Services (USCIS) issued several H-1B-related announcements and reminders.

8. Naturalization Applicants Can Now Request Social Security Numbers on Form N-400 – Beginning April 1, 2024, noncitizens applying for naturalization, using the new edition of Form N-400 (edition date 04/01/24), can complete additional questions on the form to request an original or replacement Social Security number card and to authorize U.S. Citizenship and Immigration Services to update their immigration status as a U.S. citizen with the Social Security Administration.

9. New Law Provides Immigrant Visas to Certain Foreign National Employees of U.S. Government Abroad – Foreign nationals (and their spouses and children) can now receive special immigrant visas when the foreign national has been employed by the U.S. government abroad for at least 15 years and it is in the national interest to award the visa.

10. DOJ Secures Agreement With IT Staffing Company to Resolve Hiring Discrimination Claims – Under the terms of the settlement, the staffing company will pay $100,000 in civil penalties to the United States, train its employees on anti-discrimination requirements, revise its employment policies, and be subject to monitoring by the Department of Justice.

11. USCIS Extends FY 2025 H-1B Cap Initial Registration Period to March 25 – The initial registration period will now run through noon ET on March 25, 2024.

12. USCIS Clarifies Policy Guidance on Expedite Requests – U.S. Citizenship and Immigration Services (USCIS) clarified how the agency considers expedite requests related to government interests and emergencies or urgent humanitarian situations, including travel-related requests. The update also clarifies how to make an expedite request and explains how USCIS processes expedite requests.

13. DHS Extends and Redesignates Burma (Myanmar) TPS – The Department of Homeland Security is extending and redesignating Burma (Myanmar) for Temporary Protected Status.

14. USCIS Reopens Field Office in Tegucigalpa, Honduras – The Tegucigalpa Field Office will be located inside the U.S. Embassy in Honduras.

15. USCIS Implements Streamlined Process to Shorten Wait Times for EADs, SSNs for Refugees – U.S. Citizenship and Immigration Services is implementing a streamlined process to provide Employment Authorization Documents more efficiently to eligible refugees after they are admitted into the United States. USCIS will also electronically provide the Social Security Administration with the information required to assign a Social Security number and mail a Social Security card to the refugee.

16. USCIS Issues Guidance Clarifying Anti-Discrimination Policy for USCIS Employees and Contractors Interacting With Public – U.S. Citizenship and Immigration Services clarified its anti-discrimination policy pertaining to USCIS employees and contractors interacting directly or indirectly with members of the public.

17. E-Verify Updates Tutorial – E-Verify updated its tutorial and knowledge test “to accurately reflect E-Verify’s processes, images, branding, and resources, and to provide new and existing users with an improved experience.” The tutorial requirement and process has not changed.

18. USCIS Reaches H-2B Cap for Second Half of FY 2024, Announces Filing Dates for Supplemental Visas – U.S. Citizenship and Immigration Services (USCIS) has received enough petitions to meet the H-2B cap for the second half of fiscal year (FY) 2024. USCIS also announced the filing dates for supplemental H-2B visas for the remainder of FY 2024.

19. H-1B Registration Glitch Causes Missing Signatures on Form G-28 PDFs – According to reports, some practitioners have reported signatures missing on Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (PDF version), for H-1B registrations.

20. In Surprise About-Face on April 1, USCIS Cancels Raised Fees, Lowers Most Fees, and Freezes Other Fees – The agency said it was just kidding about the immigration and naturalization-related fee “adjustments” scheduled for April 1, 2024.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – April 2024


1. USCIS Has Completed FY2025 H-1B Cap Initial Registration

U.S. Citizenship and Immigration Services (USCIS) has completed the selection process for fiscal year (FY) 2025 H-1B cap registrations, including the master’s cap, and has notified selected petitioners to proceed with filing their H-1B cap-subject petitions. Registrants can now check the status of their submissions online, with designations ranging from “Submitted” to “Selected” or “Not Selected.” Additionally, USCIS reminds petitioners that H-1B cap-subject petitions for FY 2025 may be filed starting April 1, 2024, for selected beneficiaries, requiring submission of a copy of the selection notice and evidence of the beneficiary’s valid passport or travel document used during registration. USCIS also highlighted changes in fees, form edition, and filing location effective April 1, 2024.

Details:

  • USCIS alert (Mar. 29, 2024).

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2. Higher Immigration Fees Took Effect April 1

Effective April 1, 2024, higher immigration fees took effect following a U.S. district court judge’s refusal to block a U.S. Citizenship and Immigration Services (USCIS) fee rule. USCIS has primarily targeted employers sponsoring workers, with fee increases of 70% for H-1B petitions, 201% for L-1 petitions, and 129% for O-1 petitions, alongside a new $600 Asylum Program Fee and a raise in the H-1B Electronic Registration Fee from $10 to $215 per beneficiary. According to estimates by the National Foundation for American Policy, under the new rule, most companies may spend around $9,400 to petition for a first-time H-1B visa holder, with costs potentially rising to about $18,000 when including H-1B extensions.

In Moody v. Mayorkas, a federal judge denied the plaintiffs’ motion for a temporary restraining order against USCIS, citing the high burden required for such an injunction. Despite this setback, the litigation continues, with plaintiffs aiming to challenge the fee rule’s compliance with federal law and seeking potential returns of already paid higher fees. The plaintiffs affirmed their commitment to the case, emphasizing their belief in the strength of their arguments against the fee rule and their determination to pursue legal action against USCIS.

Details:

  • USCIS FAQs (Apr. 3, 2024).
  • Forbes article (Apr. 1, 2024)

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3. USCIS Announces Rule to Increase Automatic Extension Period for Work Permits

U.S. Citizenship and Immigration Services announced a temporary final rule to increase the automatic extension period for certain employment authorization document (EAD) holders from 180 days to 540 days.  This temporary measure applies to eligible applicants who timely filed an EAD renewal application on or after October 27, 2023, if the application is pending on the date of publication in the Federal Register, as well as those renewal applicants who timely file their applications during the 540-day period after the rule’s publication. The aim is to prevent nearly 800,000 EAD renewal applicants, including asylum applications, Temporary Protected Status applicants and green card applicants, from suffering a lapse in their employment authorization.

Details:

  • USCIS notice (Apr. 4, 2024).

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4. USCIS Issues New Guidance on Medical Exam Validity

U.S. Citizenship and Immigration Services (USCIS) has issued new guidance on the validity of Form I-693, Report of Immigration Medical Examination and Vaccination Record. For all forms that were properly completed and signed by a civil surgeon on or after November 1, 2023, there is no expiration date and they may be used indefinitely to demonstrate an applicant is admissible on health-related grounds. However, USCIS officers do retain the discretion to request more evidence or a new or updated Form I-693 if they have reason to believe the submitted Form I-693 is inaccurate or that an applicant’s medical condition has changed.

If an applicant’s immigration medical examination was completed before November 1, 2023, the two-year validity period still applies.

Details:

  • USCIS Alert (Apr. 4, 2024).

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5. U.S. District Judge Declines to Temporarily Stop Immigration Fee Increases

A U.S. District Judge in Colorado denied a request for a temporary restraining order to stop immigration fee increases that were scheduled to take effect April 1, 2024.

The judge said the court “simply cannot say [the irreparable harm alleged by the plaintiff if the fee hikes take effect] is great, especially in comparison to the amount she invested.” The judge also noted that the plaintiffs waited about two months after the rule was finalized to file their lawsuit, finding that the delay “undercuts their claimed irreparable harm.” Although the court did not grant a temporary restraining order, the litigation will proceed.

Details:

  • No Temporary Stay on U.S. Visa-Fee Hikes, But Lawsuit Will Continue, Times of India (Mar. 30, 2024).
  • Judge Won’t Stop Immigration Fee Hikes From Taking Effect, Law360 (registration required) (Mar. 29, 2024).
  • Moody v. Mayorkas, 1:24-cv-00762, U.S. District Court for the District of Colorado (Mar. 29, 2024).

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6. USCIS Announces Filing Location Change for Certain Employment-Based Forms

U.S. Citizenship and Immigration Services (USCIS) announced that on April 1, 2024, it changed the filing location from USCIS service centers to a USCIS lockbox for concurrently filed Forms I-907, Request for Premium Processing Service; I-140, Immigrant Petition for Alien Worker; and I-485, Application to Register Permanent Residence or Adjust Status, and for related Forms I-131, Application for Travel Document; I-765, Application for Employment Authorization; and I-824, Application for Action on an Approved Application or Petition, filed with the application package.

The USCIS alert includes the addresses to use based on where the beneficiary will work. USCIS said that starting May 2, 2024, the agency may reject concurrently filed Forms I-907, I-140, and I-485, and any related Forms I-131, I-765, and I-824 filed with the application package, that are received at USCIS service centers.

Details:

  • USCIS alert (Mar. 29, 2024).

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7. USCIS Reminds Employers About H-1B I-129 Filing Location Change and FY 2025 H-1B Cap Updates

U.S. Citizenship and Immigration Services (USCIS) issued several H-1B-related announcements and reminders:

  • USCIS reminded employers that starting April 1, 2024, H-1B and H-1B1 (HSC) Form I-129 petitions must no longer be filed at USCIS service centers. All paper-based H-1B and H-1B1 (HSC) Form I-129 petitions must be filed at USCIS lockbox locations, including cap, non-cap, and cap-exempt H-1B filings. USCIS said it will reject such petitions received at a USCIS service center on or after April 1, 2024. There will be no grace period.
  • USCIS also reminded employers that the initial registration period for the FY 2025 H-1B cap season closed at noon ET on March 25, 2024. USCIS said it “will soon randomly select enough unique beneficiaries of properly submitted registrations projected as needed to reach the FY 2025 H-1B numerical allocations (H-1B cap), including the advanced degree exemption (master’s cap), and will notify all prospective petitioners with selected beneficiaries that they are eligible to file an H-1B cap-subject petition for such beneficiaries.”
  • Topics also included new fees and when to use the new I-129 form edition (04/01/24), online filing and organizational accounts, and prepaid mailers no longer being used.

Details:

  • USCIS alert (Mar. 29, 2024).

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8. Naturalization Applicants Can Now Request Social Security Numbers on Form N-400

Beginning April 1, 2024, noncitizens applying for naturalization, using the new edition of Form N-400 (edition date 04/01/24), can complete additional questions on the form to request an original or replacement Social Security number (SSN) card and to authorize U.S. Citizenship and Immigration Services to update their immigration status as a U.S. citizen with the Social Security Administration (SSA) office, USCIS announced. The agency said this will eliminate the need for most new citizens to separately visit the SSA field office to apply for an SSN or replacement card or to provide documentation of their new U.S. citizen status to the SSA. (SSA may request additional information if needed.)

Applicants who do not request an SSN card or authorize the disclosure of information to the SSA when completing the Form N-400 must visit a Social Security office to request an SSN card and update their status as a U.S. citizen.

Details:

  • USCIS alert (Mar. 28, 2024).

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9. New Law Provides Immigrant Visas to Certain Foreign National Employees of U.S. Government Abroad

U.S. Citizenship and Immigration Services (USCIS) announced on March 26, 2024, that foreign nationals (and their spouses and children) can now receive special immigrant visas when the foreign national has been employed by the U.S. government abroad for at least 15 years and the Department of State has found that it is in the national interest to award the visa. A limited number of such visas are available each fiscal year.

Individuals with the new classes of admission (COAs) are lawful permanent residents (LPRs). They may present the following documentation that includes a GV1 (USG SIV Employee—2024 NDAA (Arrival)), GV2 (Spouse, Arrival), GV3 (Child, Arrival), GV6 (USG SIV Employee—2024 NDAA (Adjustment)), GV7 (Spouse of GV6, Adjustment), or GV8 (Child of GV6, Adjustment) COA:

  • Form I-551, Permanent Resident Card (Green Card);
  • Form I-94, Arrival/Departure Record with a Temporary I-551 Permanent Resident Stamp;
  • Foreign passport with a Temporary I-551 Permanent Resident Stamp; or
  • Foreign passport with a Temporary I-551 Machine Readable Immigrant Visa.

Systematic Alien Verification for Entitlements will provide an initial verification response of “Lawful Permanent Resident – Employment Authorized” for a COA of GV1, GV2, GV3, GV6, GV7, or GV8.

Details:

  • USCIS notice (Mar. 26, 2024).

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10. DOJ Secures Agreement With IT Staffing Company to Resolve Hiring Discrimination Claims

The Department of Justice (DOJ) announced on March 28, 2024, that it has secured a settlement agreement with Frank Recruitment Group Incorporated (FRG), an information technology staffing company that does business under eight brand names (Revolent Group, Nigel Frank International, Mason Frank International, Washington Frank International, Anderson Frank International, Nelson Frank International, Jefferson Frank International, and FRG Technology Consulting) at locations throughout the United States. The agreement resolves DOJ’s determination that FRG “violated the Immigration and Nationality Act (INA) by excluding or deterring certain non-U.S. citizens with permission to work in the United States from applying to job opportunities because of their citizenship status.” Under the terms of the settlement, FRG will pay $100,000 in civil penalties to the United States, train its employees on the INA’s anti-discrimination requirements, revise its employment policies, and be subject to monitoring by DOJ.

DOJ said its investigation “determined that FRG published several online job advertisements with language that restricted eligibility to U.S. citizens and lawful permanent residents, even though FRG had no lawful basis to do so. FRG’s restrictive job ads excluded and deterred other potentially qualified individuals, including individuals granted asylum or refugee status by the federal government, based on their citizenship or immigration status.”

Details:

  • Settlement agreement (Mar. 27, 2024).
  • DOJ press release (Mar. 27, 2024).

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11. USCIS Extends FY 2025 H-1B Cap Initial Registration Period to March 25

U.S. Citizenship and Immigration Services (USCIS) announced on March 21, 2024, that it has extended the initial registration period for the fiscal year (FY) 2025 H-1B cap. The initial registration period, which opened at noon ET on March 6, 2024, and was originally scheduled to run through noon ET on March 22, 2024, ran through noon ET on March 25, 2024. USCIS said it is “aware of a temporary system outage experienced by some registrants, and is extending the registration period to provide additional time due to this issue.”

During this period, prospective petitioners and their representatives, if applicable, had to use a USCIS online account to register each beneficiary electronically for the selection process and pay the associated registration fee for each beneficiary, USCIS said. The agency added that it intended to notify selected registrants by March 31, 2024.

Details:

  • USCIS alert (Mar. 21, 2024).

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12. USCIS Clarifies Policy Guidance on Expedite Requests

U.S. Citizenship and Immigration Services (USCIS) announced on March 21, 2024, that it has updated guidance in its USCIS Policy Manual, effective immediately, to clarify how the agency considers expedite requests related to government interests and emergencies or urgent humanitarian situations, including travel-related requests. The update also clarifies how to make an expedite request and explains how USCIS processes expedite requests.

USCIS said it “may expedite cases identified as urgent by federal, state, tribal, territorial, or local governments of the United States because they involve public interest, public safety, national interest, or national security interests.” When an expedite request is made by a federal government agency or department based on government interests, USCIS generally defers to that agency or department’s assessment.

The update also clarifies that USCIS will consider expediting Form I-131, Application for Travel Document, to benefit requestors in the United States “when they have a pressing or critical need to leave the United States, whether the need to travel relates to an unplanned or planned event, such as a professional, academic, or personal commitment.”

When the need is related to a planned event, USCIS said it considers whether the applicant timely filed Form I-131, and whether processing times would prevent USCIS from issuing the travel document by the planned date of departure.

Details:

  • USCIS alert (Mar. 21, 2024).

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13. DHS Extends and Redesignates Burma (Myanmar) TPS

The Department of Homeland Security (DHS) is extending and redesignating Burma (Myanmar) for Temporary Protected Status (TPS).

Extension. TPS for eligible beneficiaries will be extended for 18 months, beginning on May 26, 2024, and ending on November 25, 2025. Existing TPS beneficiaries who wish to extend their status through November 25, 2025, must re-register during the 60-day re-registration period beginning on the date of publication of the notice in the Federal Register (currently scheduled for March 25, 2024).

Redesignation. DHS estimates that approximately 7,300 individuals may become newly eligible for TPS under the redesignation of Burma. DHS explained that the redesignation of Burma allows additional nationals of Burma (and individuals having no nationality who last habitually resided in Burma) who have been continuously residing in the United States since March 21, 2024, to apply for TPS for the first time during the initial registration period, which begins on the date of publication of the notice in the Federal Register (currently scheduled for March 25, 2024), and runs through November 25, 2025.

In addition to demonstrating continuous residence in the United States since March 21, 2024, and meeting other eligibility criteria, initial applicants for TPS under the designation must demonstrate that they have been continuously physically present in the United States since May 26, 2024, the effective date of the redesignation, DHS said.

Details:

  • Federal Register notice (advance copy), scheduled for publication on March 25, 2024.
  • DHS news release (Mar. 22, 2024).

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14. USCIS Reopens Field Office in Tegucigalpa, Honduras

U.S. Citizenship and Immigration Services (USCIS) announced on March 22, 2024, the reopening of an international field office in Tegucigalpa, Honduras. USCIS said the Tegucigalpa Field Office, which will be available only by appointment, “will focus on increasing refugee processing capacity and helping reunite individuals with their family members already in the United States.”

The Tegucigalpa Field Office will be located inside the U.S. Embassy in Honduras. USCIS said its staff will assume responsibility for agency workloads currently handled by the Department of State’s Consular Section there. Additionally, reopening the USCIS Tegucigalpa Field Office “will help support the U.S. government’s effort to resettle refugees from the Americas,” USCIS said.

Details:

  • USCIS alert (Mar. 22, 2024).

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15. USCIS Implements Streamlined Process to Shorten Wait Times for EADs, SSNs for Refugees

U.S. Citizenship and Immigration Services (USCIS) announced on March 12, 2024, that it has begun implementing a streamlined process to provide Employment Authorization Documents (EADs) more efficiently to eligible refugees after they are admitted into the United States. The process shortens the wait time for an EAD to approximately 30 days instead of several months, USCIS said. All individuals admitted into the United States as refugees on or after December 10, 2023, will receive EADs pursuant to this new process.

The new process is fully automated and no longer requires refugees to apply for an EAD. USCIS will digitally create a Form I-765 (EAD) for arriving refugees and begin adjudicating it as soon as they are admitted into the United States. USCIS indicated that after it approves a refugee’s Form I-765, refugees “will generally receive their EAD within one to two weeks,” although timeframes may vary depending on delivery times. USCIS will mail the EAD via U.S. Postal Service Priority Mail to the refugee’s address of record. USCIS asks that refugees allow a total of 30 days before inquiring.

USCIS will also electronically provide the Social Security Administration with the information required to assign a Social Security number and mail a Social Security card to the refugee.

USCIS noted that this process does not apply to following-to join refugees admitted into the United States based on an approved Form I-730, Refugee/Asylee Relative Petition. Additionally, refugees seeking a replacement or renewal EAD will still need to complete and submit Form I-765, USCIS said.

Details:

  • USCIS alert (Mar. 12, 2024).

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16. USCIS Issues Guidance Clarifying Anti-Discrimination Policy for USCIS Employees and Contractors Interacting With Public

U.S. Citizenship and Immigration Services (USCIS) issued guidance on March 15, 2024, to further clarify its anti-discrimination policy pertaining to USCIS employees and contractors interacting directly or indirectly with members of the public. The guidance “is controlling and supersedes any related prior guidance,” USCIS said. The agency noted that its policy is “to treat the public in a nondiscriminatory manner regardless of whether they belong to a class or group specifically protected under federal anti-discrimination laws or other legal authorities.” The new policy guidance:

  • Clarifies USCIS’ anti-discrimination policy, specifically pertaining to USCIS employees interacting directly or indirectly with members of the public.
  • Confirms that USCIS provides agency-wide training on its anti-discrimination policy to all its employees and contractors who interact directly or indirectly with members of the public.
  • Affirms that USCIS is committed to providing consistent public service in accordance with its mission statement and core values.

Details:

  • USCIS Policy Alert, PA-2024-04 (Mar. 15, 2024).

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17. E-Verify Updates Tutorial

U.S. Citizenship and Immigration Services (USCIS) announced on March 13, 2024, that E-Verify updated its tutorial and knowledge test “to accurately reflect E-Verify’s processes, images, branding, and resources, and to provide new and existing users with an improved experience.” The tutorial requirement and process has not changed. USCIS said that new users must complete all lessons and pass the knowledge test with a score of 70% or above to begin using E-Verify. The agency noted:

  • Existing users who successfully completed the knowledge test before this update can review the new content but are not required to retake the tutorial. Users may review or retake the tutorial by navigating to the “Take Tutorial” option under the Resources menu in their account.
  • Users who were in the process of completing the tutorial but had not yet passed the knowledge test will have their progress reset. These users must start the tutorial over and complete the knowledge test to gain access to their accounts.

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18. USCIS Reaches H-2B Cap for Second Half of FY 2024, Announces Filing Dates for Supplemental Visas

U.S. Citizenship and Immigration Services (USCIS) announced on March 8, 2024, that it has received enough petitions to meet the H-2B cap for the second half of fiscal year (FY) 2024, which ends September 30, 2024. USCIS also announced the filing dates for supplemental H-2B visas for the remainder of FY 2024 made available under the FY 2024 H-2B supplemental visa temporary final rule.

March 7, 2024, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2024, and before October 1, 2024. USCIS said it is rejecting new cap-subject H-2B petitions received after March 7, 2024, that request an employment start date within that range.

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

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

Below are the filing start dates for each of the remaining supplemental visa allocations under the rule:

  • For employers seeking workers who are nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, regardless of whether such nationals are returning workers: USCIS will begin accepting petitions for employers requesting an employment start date from April 1, 2024, to September 30, 2024, on March 22, 2024.
  • For employers seeking returning workers for the early second half of FY 2024 (April 1 to May 14): USCIS will begin accepting petitions for the additional 19,000 visas made available to returning workers regardless of country of nationality on March 22, 2024.
  • For employers seeking returning workers for the late second half of FY 2024 (May 15 to September 30): USCIS will begin accepting petitions for the additional 5,000 visas made available to returning workers regardless of country of nationality on April 22, 2024.

USCIS said it will stop accepting petitions under the temporary final rule received after September 16, 2024, or after the applicable cap has been reached, whichever occurs first.

USCIS previously announced that it 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 FY 2024 with employment start dates on or before March 31, 2024.

Details:

  • USCIS alert (Mar. 8, 2024).

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19. H-1B Registration Glitch Causes Missing Signatures on Form G-28 PDFs

According to reports, some practitioners have reported signatures missing on Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (PDF version), for H-1B registrations.

The American Immigration Lawyers Association said that U.S. Citizenship and Immigration Services has advised that any legal representative affected not submit registrations until further notice.

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20. In Surprise About-Face on April 1, USCIS Cancels Raised Fees, Lowers Most Fees, and Freezes Other Fees

In response to reports that a U.S. district judge declined to temporarily stop immigration fee increases, U.S. Citizenship and Immigration Services (USCIS) said they’d do that themselves. The agency announced on April 1, 2024, that it was just kidding about the immigration and naturalization-related fee “adjustments” [<cough> increases] scheduled for April 1, 2024. At a press conference announcing the cancellation of fees, President Biden said, “This is not a joke, folks. No, I’m serious.” He leaned over and whispered into the microphone for emphasis, “No new taxes! I mean fees!”

USCIS had planned to adjust [<cough> raise] fees for the first time since 2016 to “recover operating costs” and “support timely processing.” But among other things, the agency realized that timely processing is but a dream that flits away in the cold light of dawn like an unreliable seagull, so it threw up its hands and decided to cancel the final rule. As USCIS Director Ur Jaddou noted, “‘Clearing the Backlogs’ would be a great name for a band! It markets itself through sheer repetition. But as with many band names, it’s really a mere mist of a possibility, or in the realm of a wisp of hope passing like a ship in the night, or maybe a lonely seagull coasting across a bleak sky against the backdrop of a foggy, only dimly perceivable, horizon at the end of the lagoon of time and memory as we gaze into a future of backlogged, built-up, piled-up, pooled, and cached uncertainty, not to say doom…” Here Dr. Jaddou trailed off, gazed into the indeterminate distance, and held up her hand as if motioning toward a mirage. Doctors expect a full recovery.

Advocates, attorneys, and corporate immigration and HR professionals were agog at the announcement. “It boggles the mind!” said Buster Higginbotham, a reporter from the Binghamton Bangle. There were general blatherings of bafflement about the reverse adjustment, which one wag likened to “realizing you’d just put your pants on backwards.” But these reactions were tempered with feelings of fortune and unflappability.

As of this writing, April 1 wasn’t scheduled to occur until tomorrow, although USCIS said that was subject to change. This has led some to suspect that a bamboozlement about the freezing fees, or droppings, was afoot—or that perhaps USCIS just got cold feet, like a seagull in late fall padding across a wet, sandy beach whipped with the chill wind of approaching winter. Journalists (like gulls hungry for that last piece of fish glinting on the sea, or was it just a mirage?) flocked breathlessly to a hastily assembled press conference at which Director Jaddou’s son’s band, “Clearing the Backlogs,” played to warm up the audience and clear the room of overblown metaphors. When asked, Director Jaddou said she had only one comment: “Happy April Fool’s Day!”

Details:

  • No further comments, Your Honor (Apr. 1, 2024).

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New Publications and Items of Interest

I-9 guidance updated on acceptable documents. In response to public inquiries about the Form I-9 (Employment Eligibility Verification) Lists of Acceptable Documents, especially List C #7 documents, USCIS clarified its guidance. Sample images of List C #7 documents as well as information on acceptable documents are now easier to find on I-9 Central and in the M-274, Handbook for Employers, USCIS said. See Form I-9 Acceptable Documents and the revised subsections of the Handbook for Employers:

  • Sections 13.1
  • Section 13.2
  • Section 13.3

E-Verify remote document examination video. Employers who participate in E-Verify in good standing can remotely examine their employees’ documentation using a Department of Homeland-Security-authorized alternative procedure at their E-Verify hiring sites. The new Remote Document Examination Video demonstrates this process in two minutes.

Policy brief on employment-based immigration: The Migration Policy Institute (MPI) has released a new report, A New Way Forward for Employment-Based Immigration: The Bridge Visa. The policy brief outlines MPI’s “proposal for a new employment-based visa pathway, the bridge visa, that would enable the United States to better leverage immigration to meet its labor market needs. The proposed visa would help meet employers’ demand for workers in a wide range of industries and across skill levels, be flexible enough to accommodate both circular migrants and those wishing to stay in the United States permanently, ensure protections for both U.S. and foreign workers, and grow and shrink in scale over time, as needed to meet economic and other imperatives.”

Fact sheet for employers on avoiding Form I-9 violations: The Department of Justice’s Civil Rights Division and U.S. Immigration and Customs Enforcement’s Homeland Security Investigations released a joint fact sheet for employers, How to Avoid Unlawful Discrimination and Other Form I-9 Violations When Using Commercial or Proprietary Programs to Electronically Complete the Form I-9 or Participate in E-Verify. This fact sheet discusses what employers should keep in mind if they use private-sector commercial or proprietary products to electronically complete, modify, or retain the Form I-9. Although the fact sheet refers to these products collectively as Form I-9 software programs, the information also applies to employers who use such programs to participate in E-Verify. The Form I-9 software programs discussed in this fact sheet do not include programs that the Department of Homeland Security directly oversees and administers, such as E-Verify.

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

Seth Dalfen, Avi Gomberg, Genevieve Hénault, and Lisa Middlemiss, of Gomberg Dalfen, S.E.N.C., were included in the 2024 Canadian Legal Lexpert® Directory. They were ranked based on the Lexpert® peer survey.

Mr. Kuck has authored a new book, In Pursuit of a Better Future: What You Need to Know to Achieve Your American Dream.

Charles Kuck and Cyrus Mehta were quoted by Law360 in High Court SEC Case May Bear on DOJ’s Immigration Probes (registration required). Mr. Mehta said, “In the SpaceX case, there’s a unique statute that doesn’t allow one to go and ask for attorney general review of the decision. You have to go directly to the court of appeals.” He suggested that that feature of the case could mean it’s destined for a stop at the Fifth Circuit and perhaps ultimately the U.S. Supreme Court, the article noted. Commenting on authority issues in a case the Supreme Court justices are reviewing, Mr. Kuck said, “Does that mean immigration courts are going away? Nobody’s filed that challenge yet. It’s not out there. But I can assure you that if the Supreme Court strikes down the SEC’s right and authority to do these cases, that challenge is not far behind.”

Mr. Mehta has authored a new blog post: As Texas Has Been Smacked Down Thrice for Lack of Standing in Challenges to Federal Immigration Policy, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions.

Mr. Mehta and Kaitlyn Box have co-authored several new blog posts: To What Extent Can Walmart’s Successful Blocking of an Administrative Law Judge in the Executive Office for Immigration Review Extend to Immigration Judges?; The Application for Prevailing Wage Determination and the Application for Permanent Labor Certification: Siblings or Twins?; and The Potential Impact of SEC v. Jarkesy on Immigration Law and EB-5 Lawyers.

Mr. Mehta and Stephen Yale-Loehr were quoted by Bloomberg News in SpaceX, Walmart Court Wins Imperil DOJ’s Immigration Bias Probes. The article noted that Justice Department efforts to prevent businesses from discriminating against work-authorized immigrants are in jeopardy after two courts sided with Walmart Inc. and SpaceX in declaring a little-known adjudication process unconstitutional. “We’re in a brave new world when it comes to anti-discrimination cases because of the Walmart and SpaceX decisions, and it’s going to take a while for this issue to get sorted out,” said Mr. Yale-Loehr. Mr. Mehta added, “I would advise my employer clients who would be facing scrutiny to definitely file a lawsuit on these lines, if they were so inclined. I think it does embolden employers.”

WR Immigration has published a new blog post: 5 Takeaways on EB-5 Visas From State Department’s FY 2023 Annual Report.

Mr. Yale-Loehr was quoted by the Chronicle of Higher Education in A Law That Could Restrict Graduate Students From China, Iran is Challenged in Court (registration required). The article discusses a lawsuit filed by two doctoral students and a professor to block a new Florida law “that restricts public colleges in the state from hiring graduate assistants or visiting scholars from ‘countries of concern,’ including China, Iran, and Russia.” Mr. Yale-Loehr said, “The U.S. Constitution provides due process and equal protection to everyone in the U.S., not just citizens. This Florida law clearly violates those rights by barring certain international students and professors from conducting academic research.” He noted that a federal appeals court recently blocked another Florida law that banned Chinese citizens, including graduate students and professors, from buying property in the state because it would violate federal law. “I am confident that a federal court will void this Florida law on the same grounds,” he said.

Mr. Yale-Loehr was quoted by Verify This in No, Biden’s Executive Order Doesn’t Allow Ineligible People to Vote. He said, “Nothing in the executive order allows noncitizens to vote.… The executive order clearly states that [it] only protects the right to vote ‘for all Americans who are legally entitled to participate in elections.’ Noncitizens, even green card holders, are not allowed to vote in national elections.” He noted that “[o]nly Congress can change the law to allow noncitizens to vote in federal elections, and even that would probably require a constitutional amendment, as it did to allow women to vote.”

Mr. Yale-Loehr was quoted by Verify This in No, the President Can’t Completely Close the Border by Executive Order. The article notes that some people, including House Speaker Mike Johnson, have cited section 212(f) of the Immigration and Nationality Act “when claiming Biden has the authority to shut down the border via executive action.” Mr. Yale-Loehr said that federal law does give the president broad powers to suspend the entry of certain noncitizens who are “detrimental to the interests of the United States,” but that “doesn’t mean [the President] can just shut the border.”

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-04-07 11:12:302024-05-07 11:21:16ABIL Immigration Insider • April 7, 2024

ABIL Immigration Insider • March 3, 2024

March 03, 2024/in Immigration Insider /by ABIL

In this issue:

1. FY 2025 H-1B Cap Registration Period Opens Soon; USCIS Issues Reminders for Employers About Online Filing, Other New Requirements for Cap and Non-Cap Petitions – The initial registration period for the FY 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. A USCIS online account is required to register each beneficiary electronically for the selection process and pay the associated $10 registration fee.

2. Certain Updated Forms Take Effect April 1 With No Grace Period – Under the new fee final rule effective April 1, 2024, the new 04/01/24 editions of several forms will be required.

3. Reminder: Premium Processing Fees Have Increased – U.S. Citizenship and Immigration Services reminded employers that fees for Form I-907, Request for Premium Processing, increased as of February 26, 2024.

4. Eligible Ukrainians Can Apply for Re-Parole – Eligible Ukrainian citizens and their immediate family members who were paroled into the United States on or after February 11, 2022, and are physically present can apply for re-parole.

5. DOS Implements New Visa Restrictions for Transportation Operators Facilitating Irregular Migration – The Department of State has implemented a new visa restriction policy that “targets owners, executives, and senior officials of charter flight, ground, and maritime transportation companies providing transportation services designed for use primarily by persons intending to migrate irregularly to the United States.”

6. E-Verify to Pilot ‘Next Generation’ Service in Spring 2024 – E-Verify+ will include streamlining of Form I-9 and the employment eligibility verification process.

7. DOS Signs MOU With Germany on Exchange Visitor Program – The Department of State has signed a memorandum of understanding with Germany to allow certain German principals to come to the United States as J-1 exchange visitors.

8. Mayorkas Impeached; Conviction in Senate Seems Unlikely – After a previous failed attempt to impeach Secretary of Homeland Security Alejandro Mayorkas, Republicans in the House of Representatives succeeded in impeaching Mr. Mayorkas on February 13. Conviction in the Senate seems highly unlikely.

9. President Orders Deferred Enforced Departure for Palestinians in the United States – On February 14, 2024, President Biden directed the Secretary of Homeland Security to grant Deferred Enforced Departure to Palestinians in the United States for 18 months, with some exceptions.

10. ETA Extends Comment Period for Responses to PERM Schedule A Request for Information – ETA said it has received “a very limited number of comments, only a few of which have responded to the questions posed in the RFI.” The public comment period has been extended to May 13, 2024.

11. CIS Ombudsman Releases Tips on How to Avoid Getting Locked Out of Your USCIS Account – The tips include how to create a strong password, the importance of logging in regularly to maintain access, what to do when locked out, how to reset a password, security considerations, and how USCIS’s Technical Help Desk works to assist with account access.

12. ETA Updates Allowable Charges for Agricultural Workers’ Meals and for Travel Reimbursement, Including Lodging – The Employment and Training Administration announced updates to the 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 annual notice also announced the maximum travel subsistence meal reimbursement a worker with receipts may claim under the H-2A and H-2B programs, and reminded employers of their obligations concerning overnight lodging costs as part of required subsistence.

13. USCIS Releases FY 2023 Data and Highlights of FY 2024 Plans – U.S. Citizenship and Immigration Services released end-of-fiscal-year 2023 data and highlights of its plans for FY 2024.

14. EOIR to Transition to DOJ Login – The Executive Office for Immigration Review is implementing a phased migration to DOJ Login that it expects to complete this spring. EOIR will notify users by email when it is time for them to activate their new DOJ Login ID.

15. ABIL Global: Canada – Québec reopened its Immigrant Investor Program on January 1, 2024.

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 – March 2024


1. FY 2025 H-1B Cap Registration Period Opens Soon; USCIS Issues Reminders for Employers About Online Filing, Other New Requirements for Cap and Non-Cap Petitions

U.S. Citizenship and Immigration Services (USCIS) reminded employers that the initial registration period for the FY 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. A USCIS online account is required to register each beneficiary electronically for the selection process and pay the associated $10 registration fee. USCIS also announced:

  • Starting with the FY 2025 initial registration period, USCIS will require registrants to provide valid passport information or valid travel document information for each beneficiary. The passport or travel document provided must be the one the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa. Each beneficiary must only be registered under one passport or travel document.
  • On February 28, 2024, USCIS launched new myUSCIS organizational accounts to allow multiple people within an organization, as well as their legal representatives, to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907, Request for Premium Processing Service. A new organizational account is required to participate in the H-1B Electronic Registration Process as of March 2024.
  • In response to reports from practitioners about problems with setting up myUSCIS accounts, USCIS said:

We are working expeditiously to address any technical issues that may arise for legal representatives whose accounts migrated when they logged into their online account on or after Feb. 14, 2024, including impacts on cases other than H-1B filings. If you previously experienced issues upon logging in to your online account after migration, please log back in to see if your issues have been resolved by our ongoing technical fixes. For additional information and resources, please review updated information on the Organizational Accounts Frequently Asked Questions page.

  • In March, USCIS will launch online filing of Form I-129, Petition for a Nonimmigrant Worker, and associated Form I-907 for non-cap H-1B petitions. Those who are filing Form I-129 alone or with Form I-907 may also file online.
  • On April 1, 2024, USCIS service centers will no longer accept Form I-129 petitions requesting
    H-1B Specialty Occupation Worker or H-1B1 (HSC) Free Trade Agreement Worker (specialty occupation from Chile and Singapore) classification. USCIS will reject such H-1B or H-1B1 (HSC) petitions received at a USCIS service center on or after April 1, 2024. There will be no grace period Beginning on April 1, 2024, all paper-filed Form I-129 petitions requesting H-1B1 (HSC), or H-1B classification, including those with a concurrent Form I-907, Request for Premium Processing Service, and those with concurrently filed Form I-539 and/or Form I-765, must be filed at a USCIS lockbox facility.
  • USCIS will provide the lockbox filing addresses for paper-filed forms in late March via web alert and on its Form I-129 Direct Filing Addresses
  • USCIS is hosting several Tech Talks to answer questions about organizational accounts.

Details:

  • FY 2025 H-1B Registration Period and myUSCIS Organizational Account Reminders (Feb. 28, 2024).
  • Organizational Accounts FAQ (Mar. 1, 2024).
  • Organizational Accounts for Legal Representatives—Demonstration (video, USCIS YouTube channel).
  • Organizational Accounts for Companies—Demonstration (video, USCIS YouTube channel).
  • myUSCIS
  • H-1B Electronic Registration Process (Mar. 1, 2024).
  • H-1B Electronic Registration Process: Registrants (video, USCIS YouTube channel).
  • I-129, Petition for a Nonimmigrant Worker, USCIS alert (Mar. 1, 2024).

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2. Certain Updated Forms Take Effect April 1 With No Grace Period

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that under the new fee final rule effective April 1, 2024, the new 04/01/24 editions of several forms will be required, including:

  • Form I-129, Petition for a Nonimmigrant Worker.
  • Form I-129 CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker
  • Form I-140, Immigrant Petition for Alien Workers

Note: USCIS will only accept the 04/01/24 edition of these forms if they are postmarked on or after April 1, 2024.

USCIS explained that although it usually provides “a grace period when publishing new forms, the forms listed above include changes necessary for us to administer the new fees.” Beginning April 1, 2024, applicants and petitioners must submit the 04/01/24 edition of these forms with the appropriate fee listed on the USCIS Fee Schedule G-1055. USCIS said it will reject earlier versions of the above forms.

Details:

  • USCIS alert (Mar. 1, 2024).

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3. Reminder: Premium Processing Fees Have Increased

U.S. Citizenship and Immigration Services (USCIS) reminded employers that fees for Form I-907, Request for Premium Processing, increased as of February 26, 2024. The new fees are:

  • $2,805 if you are requesting premium processing of Form I-129 requesting E-1, E-2, E-3, H-1B,
    H-3, L (including blanket L-1), O, P, Q, or TN nonimmigrant classification.
  • $1,685 if you are requesting premium processing of Form I-129 requesting H-2B or R nonimmigrant classification.
  • $2,805 if you are requesting premium processing of Form I-140 requesting EB-1, EB-2, or EB-3 immigrant visa classification.
  • $1,685 if you are requesting premium processing of Form I-765 with eligibility category (C)(3)(A), (C)(3)(B), or (C)(3)(C).
  • $1,965 if you are requesting premium processing of Form I-539 seeking change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status.

USCIS said that if it receives a Form I-907 postmarked on or after February 26, 2024, with the incorrect filing fee, it will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (e.g., UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt, USCIS said.

Details:

  • USCIS alert (Feb. 26, 2024).
  • USCIS final rule, 89 Fed. Reg. 89539 (Dec. 28, 2023).
  • How do I request premium processing? USCIS form instructions.

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4. Eligible Ukrainians Can Apply for Re-Parole

U.S. Citizenship and Immigration Services (USCIS) announced on February 27, 2024, that eligible Ukrainian citizens and their immediate family members who are physically present in the United States can now be considered for re-parole to continue to temporarily remain in the United States.

Ukrainian citizens and their immediate family members who were paroled into the United States on or after February 11, 2022, can apply for re-parole under this process, USCIS said. The agency will consider these applications “on a discretionary, case-by-case basis for urgent humanitarian reasons or significant public benefit,” as with any parole application.

If USCIS approves the re-parole application, the applicant may then file Form I-765, Application for Employment Authorization, in category (c)(11) to apply for a new Employment Authorization Document as proof of employment authorization consistent with the re-parole period.

Details:

  • Eligible Ukrainians Can Now Apply for Re-Parole, USCIS (Feb. 27, 2024).

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5. DOS Implements New Visa Restrictions for Transportation Operators Facilitating Irregular Migration

The Department of State (DOS) has implemented a new visa restriction policy that “targets owners, executives, and senior officials of charter flight, ground, and maritime transportation companies providing transportation services designed for use primarily by persons intending to migrate irregularly to the United States.”

The new policy expands and supersedes the Nicaragua policy on charter flights issued in November 2023.

Details:

  • DOS press statement (Feb. 21, 2024).

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6. E-Verify to Pilot ‘Next Generation’ Service in Spring 2024

E-Verify announced on February 22, 2024, that it will launch its “next generation” service, E-Verify+, as a pilot in spring 2024. E-Verify said the “plus” in E-Verify+ represents benefits the new service will provide to employers and employees, including “added efficiency” for employers and “more control over their personal information” for employees.

E-Verify+ will include streamlining of Form I-9 and the employment eligibility verification process. Feedback will be sought as part of the pilot process. Updates will be posted on E-Verify.gov.

Details:

  • E-Verify notice (Feb. 22, 2024).

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7. DOS Signs MOU With Germany on Exchange Visitor Program

The Department of State (DOS) announced on February 20, 2024, that it signed a memorandum of understanding (MOU) with the Federal Republic of Germany. The MOU waives certain regulatory provisions to establish an exchange of German principals to secondary schools overseen and financed by the government of Germany in the United States.

Exchange visitors under the MOU are “experts in a field with specialized knowledge or skills. Program participants are required to be German citizens, hold a valid German passport, and have teaching certification for the secondary level or an advanced degree equivalent to a Master’s degree in school administration or a similar field. Program participants are selected by the Federal German Foreign Office and its subordinate authority, the Central Agency for Schools Abroad. Participants are placed as principals in German schools in the United States that are recognized and overseen by the Federal Foreign Office,” the notice states.

DOS noted that a foreign national is eligible to participate in an exchange visitor program as a specialist if that individual does not fill a permanent or long-term position of employment while in the United States.

Details:

  • DOS notice, 89 Fed. Reg. 12937 (Feb. 20, 2024).

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8. Mayorkas Impeached; Conviction in Senate Seems Unlikely

After a previous failed attempt to impeach Secretary of Homeland Security Alejandro Mayorkas on February 6, 2024, Republicans in the House of Representatives succeeded in impeaching Mr. Mayorkas on February 13 with a vote of 214-213. Republicans accused Mr. Mayorkas of failing to maintain operational control of the border, among other things.

The Senate will next consider the articles of impeachment after February 26, 2024, when they return. The Senate has a variety of options, including voting to dismiss, acquit, or convict Mr. Mayorkas, among other things. Conviction, which would require a two-thirds majority vote, is considered highly unlikely. A vote to dismiss, by contrast, would need just a simple majority. Sen. James Lankford (R-OK) said the impeachment effort would be “dead on arrival” in the Senate.

Reaction from immigration advocates was sharp. American Immigration Lawyers Association (AILA) Executive Director Ben Johnson called the impeachment effort “politically motivated.” He said, “The accusations that Secretary Mayorkas breached ‘public trust’ continue to ring hollow given he was implementing policy as Cabinet Secretaries have done throughout American history,” and “[w]eaponizing the impeachment process is both unconstitutional and dangerous for the future of a functioning government.” Jeremy Robbins, executive director of the American Immigration Council, said, “All this political grandstanding around Mayorkas does absolutely nothing to address our challenges at the border.”

Details:

  • Senate Looks to Quickly Reject Mayorkas Impeachment Charges in Speedy Trial, New York Times (Feb. 14, 2024).
  • Articles of impeachment and related press releases.
  • Constitutional Law Experts on the Impeachment Proceedings Against Secretary of Homeland Security Alejandro Mayorkas (Jan. 10, 2024).
  • House Republicans Vote to Impeach Department of Homeland Security Secretary, American Immigration Lawyers Association and American Immigration Council (joint press release) (Feb. 14, 2024.

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9. President Orders Deferred Enforced Departure for Palestinians in the United States

On February 14, 2024, President Biden directed the Secretary of Homeland Security to grant Deferred Enforced Departure (DED) to Palestinians in the United States for 18 months, with some exceptions. He further directed the Secretary to authorize employment for Palestinian noncitizens whose removal has been deferred for the duration of such deferral, and “to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Palestinians.” The Biden administration said it is taking these actions to give Palestinians in the United States a “temporary safe haven” due to deteriorating humanitarian conditions in Gaza.

The memorandum lists exceptions to DED for Palestinians, including those who have not continuously resided in the United States since February 14, 2024, who have voluntarily returned to the Palestinian territories after that date, who are inadmissible under certain provisions of U.S. immigration law or subject to extradition, who have been convicted of any felony or two or more misdemeanors committed in the United States, or who the Secretary deems a danger to public safety.

According to reports, about 6,000 Palestinians are eligible for DED under the memorandum.

Details:

  • Memorandum on the Deferred Enforced Departure for Certain Palestinians, White House (Feb. 14, 2024).
  • Statement From National Security Advisor Jake Sullivan on Deferred Enforced Departure for Palestinians, White House (Feb. 14, 2024).
  • Biden Shields Palestinians in the U.S. From Deportation, New York Times (Feb. 14, 2024).

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10. ETA Extends Comment Period for Responses to PERM Schedule A Request for Information

The Department of Labor’s Employment and Training Administration (ETA) has extended the comment period for responses to its PERM Schedule A Request for Information (RFI). ETA said it has received “a very limited number of comments, only a few of which have responded to the questions posed in the RFI.” The public comment period was set to conclude on February 20, 2024, but has been extended to May 13, 2024.

As background, on December 21, 2023, ETA published the RFI, soliciting public input on potential revisions to Schedule A of the permanent labor certification process to include occupations in science, technology, engineering, and mathematics (STEM), including artificial intelligence-related occupations and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers.

Details:

  • Employment and Training Administration Extends Comment Period for Stakeholders to Respond to PERM Schedule A Request for Information (Feb. 15, 2024).

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11. CIS Ombudsman Releases Tips on How to Avoid Getting Locked Out of Your USCIS Account

On February 14, 2024, the Office of the Citizenship and Immigration Services (CIS) Ombudsman released a tip sheet on how people with individual U.S. Citizenship and Immigration Services (USCIS) online accounts can maintain access and avoid getting locked out of their accounts.

The tips include how to create a strong password, the importance of logging in regularly to maintain access (the tip sheet suggests “once a month or once every few months”), what to do when locked out, how to reset a password, security considerations, and how USCIS’s Technical Help Desk works to assist with account access.

Details:

  • New Tip Sheet on How to Avoid Getting Locked Out of Your USCIS Account, Department of Homeland Security (Feb. 14, 2024).
  • Tip sheet (PDF) (DHS) (Feb. 14, 2024).

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12. ETA Updates Allowable Charges for Agricultural Workers’ Meals and for Travel Reimbursement, Including Lodging

On February 13, 2024, the Department of Labor’s Employment and Training Administration (ETA) announced updates to the allowable monetary charges that employers of H-2A temporary agricultural 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 annual notice also announced the maximum travel subsistence meal reimbursement a worker with receipts may claim under the H-2A and H-2B temporary nonagricultural programs, and reminded employers of their obligations with respect to overnight lodging costs as part of required subsistence.

The notice provides that:

  • The updated maximum allowable charge has increased from $15.46 to $15.88 per day, unless the Office of Foreign Labor Certification’s Certifying Officer approves a higher charge.
  • The standard meals-and-incidental-expenses (M&IE) rate is $59 per day for 2024. Workers who qualify for travel reimbursement are entitled to reimbursement for meals up to the standard M&IE rate when they provide receipts. In determining the appropriate amount of reimbursement for meals for less than a full day, the employer may limit the meal expense reimbursement, with receipts, to 75 percent of the maximum reimbursement for meals, or $44.25, based on the General Services Administration’s per diem schedule.

Details:

  • ETA notice, 89 Fed. Reg. 10101 (Feb. 13, 2024).

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13. USCIS Releases FY 2023 Data and Highlights of FY 2024 Plans

On February 9, 2024, U.S. Citizenship and Immigration Services (USCIS) released end-of-fiscal-year (FY) 2023 data. Below are selected highlights of the data and USCIS’s plans for FY 2024:

FY 2023 Backlog Reductions

  • USCIS received 10.9 million filings and completed more than 10 million pending cases, both of which it called “record-breaking numbers.” In doing so, USCIS said it reduced overall backlogs by 15%, including “effectively eliminating the backlog of naturalization applications.” The median processing time for naturalization applicants also decreased from 10.5 months to 6.1 months by the end of the fiscal year.

FY 2023 Actions Affecting Workers and Employers

  • USCIS and the Department of State issued more than 192,000 employment-based immigrant visas and, for the second year running, ensured that no available visas went unused, USCIS said. The agency increased the maximum validity period of Employment Authorization Documents (EADs) to five years for adjustment of status applicants. USCIS said it clarified eligibility for a range of immigration services, including the International Entrepreneur Rule, the EB-1 immigrant visa for individuals of extraordinary ability and outstanding professors and researchers, and the waiver of the two-year foreign residence requirement for J-1 cultural and educational exchange visitors (including foreign medical graduates). The agency also proposed a new rule “to strengthen worker protections and the integrity of the H-2 temporary worker program.”
  • USCIS removed the biometrics fee and appointment requirement for applicants for a change or extension of nonimmigrant status and updated the agency’s interpretation of the Child Status Protection Act to prevent many child beneficiaries of noncitizen workers from “aging out” of child status, allowing them to seek permanent residence along with their parents.

FY 2024 Plans

In FY 2024, USCIS plans to:

  • Work to maintain median processing times of 30 days for certain EAD applications filed by individuals who entered the United States after scheduling an appointment through the CBP One mobile application or the CHNV processes.
  • Continue to update policy guidance for the EB-5 investor visa program, incorporating statutory reforms to the Regional Center Program as they relate to regional center designation and other requirements for immigrant investors.
  • Continue to update policy guidance for student classifications, including eligibility for employment authorization, change of status, extension of stay, and reinstatement of status for F and M students and their dependents in the United States.
  • Finalize a new rule on the H-1B program for specialty occupation workers.
  • Propose a new rule on the adjustment of status process, including regulations clarifying the age calculation under the Child Status Protection Act and providing employment authorization for certain derivative beneficiaries awaiting immigrant visa availability when they present compelling circumstances.

Details:

  • USCIS news release (Feb. 9, 2024).

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14. EOIR to Transition to DOJ Login

On February 9, 2024, the Department of Justice (DOJ)’s Executive Office for Immigration Review (EOIR) announced new procedures for accessing the EOIR Courts & Appeals System (ECAS) Case Portal. EOIR is transitioning to “DOJ Login,” a cloud-based identity management and authentication service. To facilitate this change, users must confirm or correct their primary email address, which will serve as their DOJ Login ID.

All currently registered practitioners will be migrated to DOJ Login ID to access ECAS Case Portal, EOIR said. EOIR is implementing a phased migration that it expects to complete this spring. EOIR said it has developed detailed instructions for this phased transition and will notify users by email when it is time for them to activate their new DOJ Login ID.

Those who have questions or need assistance can email customer support at [email protected] or call 1-877-388-3842.

Details:

  • EOIR notice (Feb. 9, 2024).

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15. ABIL Global: Canada

Québec reopened its Immigrant Investor Program (QIIP) on January 1, 2024.

The QIIP is the only investment-based immigration program in Canada that does not require the foreign investor to show proof of active business management in Canada at the time of submission of the application, including proof of starting or establishing a business or hiring staff or employees in Canada.

The Québec government seeks to maintain a high level of francophone economic immigration in the Province of Québec. Proof of French language capacity on filing the application accepted by Québec Immigration are a Certificate of Test Results or Diploma for a recognized French language test such as the TEFAQ, TEF Canada, TCF, TCFQ, or DELF/DALF, confirming that the applicant has reached a B2 level or higher in oral French (speaking and listening) and/or written French (reading and writing).

At the time of submission, applicants must also demonstrate that they meet the following criteria:

  • They are at least 18 years old;
  • They have a high school diploma at minimum (equivalent to a secondary diploma in Québec);
  • They have at least two years of management experience in the five-year period before submitting the application; and
  • They have at least CAD $2,000,000 of net assets (just under USD $1,500,000), accompanied with proof that the net assets were accumulated legally.

In addition, interested applicants must sign and agree to an Investment Agreement with a Québec government-authorized financial intermediary. Once the application is approved, they must make a CAD $1,000,000 five-year investment with IQ Immigrants Investisseurs Inc. (IQII), a Québec crown corporation. The investment is guaranteed and bears no interest. Applicants also must make a non-refundable financial contribution of CAD $200,000 to the Québec government.

Once the applicants have fulfilled the financial requirements of the Québec Immigrant Investor Program, they will be directed to Immigration, Refugees and Citizenship Canada (IRCC) to apply for a three-year Canadian Work Permit. The principal applicant and their spouse, if applicable, must meet a residency requirement of at least 12 months in Québec within the first two years of being issued their Canadian Work Permits. The principal applicant must reside in Québec for a minimum of six months, while the remaining six months of residency required can be satisfied by either the principal applicant or their spouse. Once they have satisfied this residence requirement, the applicant and the spouse can then apply for a Certificat de Sélection du Québec (CSQ) from Québec and, once the CSQs are received, apply for Canadian permanent residence with IRCC.

There is no quota for the program or deadline for the submission of applications.

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New Publications and Items of Interest

The American Immigration Council published a practice advisory, Litigation for Business Immigration Practitioners. The advisory explains how to assess whether filing suit in federal court is the right option for challenging an employment-based petition denial. It provides factors to consider before filing suit, such as the strength of the administrative record and whether the preconditions for an Administrative Procedure Act cause of action have been met. The advisory also explains the components of a complaint and issues to consider, such as whether the court has jurisdiction, where to file, who the parties should be, what causes of action could be asserted, available remedies, and standards a federal court will apply in reviewing the agency’s decision.

E-Verify will hold a series of upcoming webinars on I-9 and E-Verify issues:

  • March 5, 2024, at 11 a.m. ET: Form I-9 Overview
  • March 5, 2024, at 2 p.m. ET: Form I-9 Document Training
  • March 6, 2024, at 2 p.m. ET: E-Verify Overview

E-Verify webinar schedule: E-Verify regularly updates its calendar of webinars.

Systematic Alien Verification for Entitlements (SAVE) webinar schedule:

  • SAVE Current Users & Best Practices Webinar, March 6, 2024, 1 to 2 p.m. ET
  • SAVE Program Overview, March 13, 2024, 1 to 2 p.m. ET
  • SAVE Current Users & Best Practices Webinar, March 21, 2024, 1 to 2 p.m. ET
  • SAVE Current Users & Best Practices Webinar, April 3, 2024, 1 to 2 p.m. ET
  • SAVE Program Overview, April 10, 2024, 1 to 2 p.m. ET
  • SAVE Current Users & Best Practices Webinar, April 18, 2024, 1 to 2 p.m. ET

For more information and additional webinars, see https://www.uscis.gov/save/save-resources/save-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, welcomed Nick Lowrey to the firm. Mr. Lowrey has worked in immigration law for seven years and represents clients across industries. His practice primarily focuses on business immigration and worksite compliance. He has in-depth experience advising employers across a range of employment-based temporary and permanent visa categories. Mr. Lowrey leads clients through large-scale I-9 audits, provides strategic policy consulting, and offers compliance trainings to ensure clients are meeting their obligations. He consults with clients on unique I-9 issues, including suspect document assessments, immigration-related fraud, and anti-discrimination policies.

Charles Kuck appeared on Atlanta News First to comment on criticisms raised by Georgia lawmakers about the undocumented status of the University of Georgia murder suspect.

Mr. Kuck was quoted by 285 South in It’s About to Get More Expensive to File Immigration Paperwork. Regarding increases in immigration-related fees, he said, “It’s a massive money grab with no justification.” The article notes that he acknowledged that the fee increase was less than what was first proposed, but, he said, “it’s still very bad.” He also wasn’t optimistic that an increase in fees would lead to faster processing times. “[They] can’t justify doubling the cost for [a green card through] marriage.… No way [is it] related to the actual cost of doing the application.” Commenting on the fact that immigration lawyers and advocacy organizations are urging people to get their applications in before April 1 before the new fees kick in, Mr. Kuck said, “They should take advantage of the benefits that are available [at] current pricing.”

Mr. Kuck was quoted by Marianne in In the United States, the Immigration Debate is Undermined by the Biden-Trump Duel (by subscription; in French with English translation available). He noted that under current law, all people who arrive in the United States, whether at a legal port of entry or illegally, have the right to apply for asylum. However, he explained that the wait for those with legitimate asylum claims is long. For example, he said, “I have clients who applied for asylum in 2014 and still have not had a hearing before a judge.” If the proposed Senate border deal had been enacted, “there would be 4,000 new officials to handle asylum applications, and those cases would be adjudicated within six months. As many applications would be rejected more quickly, there would be fewer applicants, as many would be deported relatively quickly. This message then [would spread] to the countries of origin and fewer people [would] try their luck.”

Mr. Kuck was quoted by the Atlanta Journal-Constitution in Border Politics Are Worse for Joe Biden Than Anyone Else. He discussed the reasons Biden was willing to work with Republicans on immigration and said the bill they crafted over the last four months could have made a meaningful difference: “There’s a deterrence that comes from declaring an emergency, limiting the applications at ports of entry, and automatically deporting everybody else who is not at a port of entry. What’s missing now is the deterrence factor.”

Mr. Kuck was quoted by the EB-5 Investors blog in How EB-5 Investors Must Prepare for Rejection in Their Application Process. He said, “The reality is that cases are denied and/or rejected for various reasons and no lawyer can guarantee success on a case. This is especially true as it relates to the source of funds (the main reasons [EB-5 investor] cases are denied).” Noting that failing to prove the legality of the EB-5 capital and project-related failures are the main reasons why USCIS rejects I-526 filings, Mr. Kuck said, “The most common reasons you will see is either a source of funds issue or a project filing that was incomplete or did not have the proper supporting documents such as permits, capital stack explanations, etc.” He said that a rejected I-526 “can be refiled but will put you back at the end of the line, but a rejected I-526 with a rejected I-485 will cost you your status and your work authorization. There is no appeal to a court of a rejected I-526, at least not one that will be resolved quickly. Do everything you possibly can to make sure you can trace the legality of the money you are investing.” Mr. Kuck also recommends that his clients “document every aspect of the case and check in with your attorney every six months after entry as a conditional permanent resident to make sure you are on track for a successful removal of conditions.”

Mr. Kuck joined the Politically Georgia radio show to discuss border and immigration legislation being debated, including the Senate bill and other political issues.

Cyrus Mehta has authored a new blog post: How Corner Post Along with the Demise of Chevron Deference Can Open Up Immigration Regulations to Challenges.

Mr. Mehta and Kaitlyn Box have authored a new blog post: Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government.

WR Immigration has published several new blog posts: USCIS Immigration Filing Fees Increase Effective April 1 and Client Alert: USCIS Final Rule for FY 2025 H-1B Cap Registration.

Stephen Yale-Loehr was quoted by Time in How a Dead Border Deal Led to a Trump-Biden Border Duel. He said, “Presidents have a lot of authority when it comes to immigration, because immigration touches on sovereignty and foreign relations. However, any president’s authority is not unlimited.”

Mr. Yale-Loehr co-authored an op-ed in Law360, NY Must Address Urgent Need For Immigration Legal Aid.

Mr. Yale-Loehr was quoted by CNN in Biden Considering New Executive Action to Restrict Asylum at the Border, Sources Say. He said, “President Biden has broad powers under the immigration statute, but they are not unlimited. Section 212(f) of the Immigration and Nationality Act allows a president to suspend the entry of noncitizens who are ‘detrimental to the interests of the United States,’ but that doesn’t mean he can just shut the border to everyone.”

Several Alliance of Business Immigration Lawyers members were listed in Chambers Global Guide 2024:

GLOBAL IMMIGRATION LEGAL NETWORK

Alliance of Business Immigration Lawyers – Band 1

 

FIRMS

GLOBAL: MULTI-JURISDICTIONAL

Kingsley Napley LLP – Band 2

 

CANADA

Corporate Immigration Law Firm – Band 2

Gomberg Dalfen – Band 2

 

UNITED STATES

Klasko Immigration Law Partners, LLP (Immigration: Business – USA – Band 2)

Wolfsdorf Rosenthal LLP (Immigration: Business – USA – Band 3)

Foster LLP (Immigration: Business – USA – Band 4)

Sidley Austin LLP (Immigration: Business – USA – Band 4)

Kurzban, Kurzban, Tetzeli & Pratt (Immigration: Business – USA – Band 4)

 

INDIVIDUALS

Immigration – Canada

Barbara Jo Caruso – Band 1

Seth Dalfen – Band 2

Avi Gomberg – Band 2

 

Immigration: Business – USA

Dagmar Butte – Band 2

H. upsRonald Klasko – Band 1

Charles Kuck – Band 1

Ira Kurzban – Star Individual

Vince Lau – Band 2

Marketa Lindt – Band 1

Robert Loughran – Band 4

Cyrus D. Mehta – Band 1

Angelo Paparelli – Band 1

John Pratt – Band 2

Gregory Siskind – Band 1

William Stock – Band 1

Stephen Yale-Loehr – Band 1

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-03-03 15:39:492024-03-09 16:09:09ABIL Immigration Insider • March 3, 2024

ABIL Immigration Insider • February 4, 2024

February 04, 2024/in Immigration Insider /by ABIL

In this issue:

1. USCIS Announces Registration Period, Instructions, and Updates for FY 2025 H-1B Cap Season – U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024.

2. USCIS Issues Final Rule With New Filing Fees – U.S. Citizenship and Immigration Services published a final rule, effective April 1, 2024, to adjust certain immigration and naturalization benefit request fees. The final rule includes fee increases for various categories.

3. USCIS Releases Additional Details About Organizational Accounts – U.S. Citizenship and Immigration Services unveiled additional details about its launch of organizational accounts in February 2024, in time for the fiscal year 2025 H-1B cap season.

4. USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’ – U.S. Citizenship and Immigration Services updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

5. DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights – Noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” The Department of Homeland Security explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.”

6. DHS Extends and Redesignates Syria for TPS, Announces Student Relief – The Department of Homeland Security is extending and redesignating Syria for Temporary Protected Status. DHS also announced Special Student Relief for F-1 nonimmigrant students whose country of citizenship is Syria.

7. USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely – U.S. Citizenship and Immigration Services announced a new process for most applicants, petitioners, and requestors, and their attorneys and accredited representatives, to pay for certain benefit request forms by mail or remotely instead of in person at a field office.

8. DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants – The Department of State has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first.

9. CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program – A new U.S. Customs and Border Protection interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program.

10. DOL Seeks OMB Approval, Comments on O*NET Data Collection Program – The Department of Labor has submitted the O*NET Data Collection Program to the Office of Management and Budget for review and approval. DOL seeks comments on O*NET by February 16, 2024.

11. U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks – Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico.

12. USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations – U.S. Citizenship and Immigration Services plans to launch organizational accounts for non-cap filings and the fiscal year 2025 H-1B cap season.

13. Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024 – 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 2024 with start dates on or before March 31, 2024.

14. February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category – The Department of State’s Visa Bulletin for February 2024 noted that absent legislative action, the non-minister special immigrant program was set to expire on February 2, 2024.

15. USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities – According to a newly released report, U.S. Citizenship and Immigration Services data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver EB-2 petition approvals for individuals engaged in STEM activities.

16. CBP Updates Website, Provides Trusted Traveler Processing Times – In an effort to reduce unscheduled visits to Trusted Traveler Program Enrollment Centers, U.S. Customs and Border Protection has expanded the TTP-related topics on its public website portal.

17. DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations – Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations.

18. ABIL Global: The Netherlands – This article discusses the principle of single nationality in Dutch law and the proportionality test, and how they work in practice.

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 – February 2024


1. USCIS Announces Registration Period, Instructions, and Updates for FY 2025 H-1B Cap Season

U.S. Citizenship and Immigration Services (USCIS) has announced that the initial registration period for the fiscal year 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. During that period, prospective petitioners and their representatives, if applicable, must use a USCIS online account to register each beneficiary electronically and pay the associated registration fee.

The final rule makes several changes. For example:

  • Instead of selecting by registration, USCIS will select registrations by unique beneficiary. Each unique beneficiary who has a registration submitted on their behalf will be entered into the selection process once, regardless of how many registrations are submitted on their behalf.
  • Start date flexibility will be provided for certain H-1B cap-subject petitions. Filing will be permitted with requested start dates that are after October 1 of the relevant fiscal year.
  • Registrations must include the beneficiary’s valid passport information or valid travel document information, and a beneficiary is prohibited from being registered under more than one passport or travel document. USCIS said the modification to allow for a valid travel document “is intended to narrowly accommodate stateless individuals, refugees, and others who are unable to obtain valid passports, and is directly in response to public comments.”

Details:

  • USCIS final rule, 89 Fed. Reg. 7456 (Feb. 2, 2024).

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2. USCIS Issues Final Rule With New Filing Fees

U.S. Citizenship and Immigration Services (USCIS) published a final rule, effective April 1, 2024, to adjust certain immigration and naturalization benefit request fees. The final rule includes fee increases for various categories, such as:

  • I-129 H-1B (named beneficiaries), from $460 to $1,080
  • I-129 H-1B (named beneficiaries, small employers and nonprofits), from $460 to $540
  • I-129 L Nonimmigrant Workers, from $460 to $1,385
  • I-129 L Nonimmigrant Workers (small employers and nonprofits), from $460 to $695
  • I-526/526E Immigrant Petition by Standalone Regional Center, from $3,675 to $11,160

Among other things, the final rule also:

  • Imposes a new Asylum Program Fee to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or Form I-140, Immigrant Petition for Alien Worker. The fee will be $0 for nonprofits; $300 for small employers (defined as firms or individuals having 25 or fewer full-time employees); and $600 for all other filers of Forms I-129 and I-140.
  • Allows for half-price Employment Authorization Document applications for adjustment of status applicants and a reduced fee for adjustment of status applicants under the age of 14 in certain situations; and
  • Implements a standard $50 discount for most online filers. The discount does not apply “in limited circumstances, such as when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee.”

Details:

  • USCIS final rule, 89 Fed. Reg. 6194 (Jan. 31, 2024).
  • USCIS FAQ on fee rule (Jan. 31, 2024). The FAQ includes a full list of the revised forms effective April 1, 2024, along with the new fees. USCIS said it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024. During the grace period, USCIS will accept both previous and new editions of certain forms, filed with the correct fee.

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3. USCIS Releases Additional Details About Organizational Accounts

During a public engagement session, U.S. Citizenship and Immigration Services (USCIS) unveiled additional details about its launch of organizational accounts in February 2024, in time for non-cap filings and the fiscal year 2025 H-1B cap season. USCIS noted:

  • A company can designate representatives who will have the authority to review, sign on behalf of the company, and pay (if necessary) the filing fees associated with submissions. Those designated individuals will be deemed as the “Administrators” for the company and will need to either create their own USCIS accounts or leverage their existing ones if they have served as company representatives for H-1B cap registration purposes.
  • For companies, Administrators will have a wide range of account management capabilities, from creating working Groups, inviting other Administrators, Legal Representative Teams, or regular working Group Members to collaborate on projects within the created corporate Group. Administrators are also the only account holders authorized to review, sign, and submit filings on behalf of the organization.

The Alliance of Business Immigration Lawyers (ABIL) recommends that companies contact their ABIL attorney for advice and help with the new platform.

Details:

  • USCIS news release (Jan. 12, 2024).

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4. USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’

On January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

USCIS said that extraordinary circumstances may include, for example, work slowdowns or stoppages involving a strike, lockout, or other labor dispute, or the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.

Details:

  • USCIS alert (Jan. 24, 2024).

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5. DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights

On January 13, 2024, the Department of Homeland Security (DHS) announced that noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” DHS explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from … exploitive employers.”

DHS said that in addition to providing new guidance to labor agencies regarding processes to seek deferred action for certain workers, DHS will also provide for a single intake point for deferred action requests from noncitizen workers that are supported by labor enforcement agencies. In addition to satisfying individual criteria to facilitate case-by-case determinations, DHS said, requests for deferred action submitted through this centralized process “must include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction.”

Discretionary grants of deferred action under this process will typically last for two years, DHS said. Those granted deferred action may be eligible for work authorization if they can demonstrate an economic necessity for employment. They may also be eligible for subsequent grants of deferred action “if a labor agency has a continuing investigative or enforcement interest in the matter identified in their original letter supporting DHS use of prosecutorial discretion,” DHS said.

Details:

  • DHS Support of the Enforcement of Labor and Employment Laws (Jan. 17, 2024).
  • DHS press release (Jan. 13, 2024).

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6. DHS Extends and Redesignates Syria for TPS, Announces Student Relief

The Department of Homeland Security (DHS) is extending and redesignating Syria for Temporary Protected Status (TPS).

DHS also announced Special Student Relief for F-1 nonimmigrant students from Syria. DHS said this will enable 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.

Below are highlights of the extension and redesignation.

Extension. TPS will be extended for Syria for 18 months, beginning on April 1, 2024, and ending on September 30, 2025. DHS said this extension allows existing TPS beneficiaries to retain TPS through September 30, 2025, if they otherwise continue to meet the eligibility requirements for TPS. Existing TPS beneficiaries who wish to extend their status through September 30, 2025, must re-register during the 60-day re-registration period, which will begin on the date the notice is published in the Federal Register (expected to be January 29, 2024), and run for 60 days.

Redesignation. DHS is also redesignating Syria for TPS. The agency explained that the redesignation allows additional Syrian nationals (and individuals having no nationality who last habitually resided in Syria) who have been continuously residing in the United States since January 25, 2024, to apply for TPS for the first time during the initial registration period, which will begin on the date the notice is published in the Federal Register (expected to be January 29, 2024), and will remain in effect through September 30, 2025. In addition to demonstrating continuous residence in the United States since January 25, 2024, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since April 1, 2024.

DHS said, “It is important for re-registrants to timely re-register during the re-registration period and not to wait until their Employment Authorization Documents (EADs) expire, as delaying reregistration could result in gaps in their employment authorization documentation.”

Details:

  • DHS notice (Syrian TPS) (advance copy).
  • USCIS news release (Syrian TPS) (Jan. 26, 2024).
  • ICE notice (Special Student Relief for Syrians) (advance copy).

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7. USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely

On January 26, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a new process for most applicants, petitioners, requestors, and their attorneys and accredited representatives to pay for certain benefit request forms by mail or remotely instead of in person at a field office. Under the new process, applicants may mail either a check or Form G-1450, Authorization for Credit Card Transactions, to the field office with their benefit request.

In addition, USCIS said, attorneys and accredited representatives now can process payments for EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer, through a link in the email they receive or via text from the USCIS Contact Center. Once such a payment has been processed, attorneys and accredited representatives must mail their client’s EOIR-29; their EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals; and their Pay.gov receipt to the field office.

An exception to the new process is emergency advance parole (EAP) requests, USCIS said. Applicants submitting Form I-131, Application for Travel Document, with an EAP request must still make an appointment with the USCIS Contact Center, apply in person with their package (completed form and supporting documentation), and pay the application fee (if applicable) by credit card with Form G-1450 or check at the field office.

Details:

  • USCIS alert (Jan. 26, 2024).

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8. DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants

The Department of State (DOS) has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first.

DOS said it will make available a maximum of 20,000 application slots during this pilot program. Approximately 2,000 per week will be for applicants whose most recent H-1B visa was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023, and approximately 2,000 per week will be for applicants whose most recent H-1B visa was issued by U.S. Mission India with an issuance date of February 1, 2021, through September 30, 2021.

Participation in the pilot program is voluntary. DOS said that individuals who do not meet the requirements for participation in the pilot program, or those who choose not to participate in the pilot program, may continue to apply for visa renewal at a U.S. embassy or consulate overseas.

Details:

  • DOS guidance/FAQs.

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9. CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program

A new U.S. Customs and Border Protection (CBP) interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program (G-CNMI VWP) to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program (EVS-TAP) as a restricted sub-program of the G-CNMI VWP.

CBP said that the CNMI EVS-TAP is being established based on consultations between the United States and the CNMI under the Covenant to Establish the Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Once implemented, EVS-TAP will allow prescreened nationals of the People’s Republic of China to travel to the CNMI without a visa under specified conditions.

Comments must be received by March 18, 2024, using the method set forth in the interim final rule.

Details:

  • CBP interim final rule, 89 Fed. Reg. 3299 (Jan. 18, 2024).

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10. DOL Seeks OMB Approval, Comments on O*NET Data Collection Program

The Department of Labor (DOL) has submitted the O*NET Data Collection Program to the Office of Management and Budget (OMB) for review and approval.

DOL said that O*NET is “an ongoing effort to collect and maintain current information on the detailed characteristics of occupations and skills for more than 900 occupations. The resulting database provides the most comprehensive standardized source of occupational and skills information in the nation.”

OMB will consider all written comments that the agency receives by February 16, 2024.

Details:

  • DOL O*NET OMB notice, 89 Fed. Reg. 2985 (Jan. 17, 2024).

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11. U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks

Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico, which has fallen since the start of 2024, due in part to Mexico’s resumption of enforcement efforts that had been paused. According to reports, the discussion included a variety of topics, and no major announcements resulted.

After a visit by U.S. officials to Mexico in late December, the two countries issued a joint communique reaffirming their mutual commitment to “orderly, humane and regular migration.” Topics discussed included addressing the root causes of migration; initiatives for Cubans, Haitians, Nicaraguans, and Venezuelans; enhanced efforts to disrupt human smuggling and trafficking; and promoting legal migration pathways. Also discussed were bilateral trade and the benefit of regularizing the situation of long-term undocumented Hispanic migrants and Deferred Action for Childhood Arrivals recipients. The new meeting in January was a continuation of those discussions.

Details:

  • Top U.S., Mexican Officials in Washington for Migration Talks, Voice of America (Jan. 19, 2024).
  • Briefing, Department of State (Jan. 18, 2024).
  • Mexico-U.S. Joint Communique (Dec. 28, 2023).

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12. USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations

U.S. Citizenship and Immigration Services (USCIS) plans to launch organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. Organizational accounts “will allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations, Form I-129, Petition for a Nonimmigrant Worker, and associated Form I-907, Request for Premium Processing Service,” USCIS said. The agency also plans to introduce online filing for I-129 H-1B petitions and H-1B I-907 premium processing service.

USCIS expects to launch the organizational accounts in February 2024, with online filing of Forms I-129 and I-907 following shortly thereafter. USCIS will transition the paper filing location for Forms I-129 and I-907 from service centers to the USCIS lockbox.

Details:

  • USCIS news release (Jan. 12, 2024).

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13. Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024

On January 12, 2023, 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 2024 with start dates on or before March 31, 2024, under the
H-2B supplemental cap temporary final rule. USCIS said January 9, 2024, was the final receipt date for petitions requesting supplemental H-2B visas under the FY 2024 first half returning worker allocation.

USCIS said it is still accepting petitions for H-2B nonimmigrant workers with start dates on or before March 31, 2024, for the additional 20,000 visas allotted for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation), as well as those who are exempt from the congressionally mandated cap.

USCIS encouraged petitioners with start dates on or before March 31, 2024, whose workers were not accepted for the 20,716 returning worker allocation, to file under the country-specific allocation while visas remain available. As of January 12, 2024, USCIS said it has received petitions requesting 4,500 workers under the 20,000 visas set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

Details:

  • USCIS alert (Jan. 12, 2024).

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14. February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category

The Department of State’s Visa Bulletin for February 2024 noted that absent legislative action, the non-minister special immigrant program was set to expire on February 2, 2024. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight February 1, 2024. Visas issued before that date were valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must have been admitted into the United States no later than midnight February 1, 2024, the bulletin said.

The bulletin noted that if there were no legislative action extending the category beyond February 2, 2023, “the category will immediately become ‘Unavailable’ as of February 2, 2023. In the event there is legislative action extending the category beyond February 2, the published dates will continue to be in effect for the remainder of February.”

Details:

  • Visa Bulletin, Dept. of State (Feb. 2024).

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15. USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities

According to a newly released report, U.S. Citizenship and Immigration Services (USCIS) data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver (NIW) EB-2 petition approvals for individuals engaged in STEM activities, compared to fiscal year 2021, before USCIS issued new policy guidance in January 2022. USCIS noted:

  • From FY 2021 to FY 2022, total receipts of Form I-140, Immigrant Petition for Alien Workers, with and without waivers (combined) increased by 20 percent, from 70,600 to 84,470. Receipts continued to increase by another 10 percent from FY 2022 to FY 2023. Approvals increased by 60 percent from 57,810 in FY 2021 to 92,280 in FY 2022, but decreased about 12 percent from 92,280 in FY 2022 to 81,380 in FY 2023. The approval rate remained at 90 percent or above throughout FY 2018-FY 2023. Total EB-2 receipts in STEM job categories decreased by almost 13 percent, from 61,790 in FY 2022 to 53,960 in FY 2023. Receipts in non-STEM job categories increased by 28 percent during that time.
  • An increasing number of EB-2 petitioners are requesting NIWs, USCIS said. The number of petitions with NIW requests almost doubled, from 21,990 in FY 2022 to 39,810 in FY 2023; the number of petitions without NIW requests dropped from 62,490 to 53,200.
  • From FY 2021 to FY 2022, total receipts of Form I-129 for O-1A petitioners increased 29 percent, from 7,710 to 9,970. They continued to increase slightly from 9,970 in FY 2022 to 10,010 in FY 2023 (see Figure 4). Approvals followed a similar trend by increasing by 25 percent from FY 2021 to FY 2022, from 7,320 to 9,120. They continued to increase slightly from 9,120 in FY 2022 to 9,490 in FY 2023. The approval rate remained stable at 90 percent or above throughout FY 2018-FY 2023.
  • From FY 2021 to FY 2022, total approvals of STEM-related O-1A Form I-129 petitions increased 29 percent, from 3,550 to 4,570. From FY 2022 to FY 2023, approvals remained almost the same, from 4,570 to 4,560. Approvals of non-STEM-related petitions followed a similar trend increasing 21 percent, from 3,410 in FY 2021 to 4,140 in FY 2022. Approvals increased slightly from 4,140 in FY 2022 to 4,380 in FY 2023.

The January 2022 policy guidance clarified how certain professionals in STEM fields can demonstrate eligibility for (a) the NIW in employment-based immigrant status (EB-2), along with the significance of letters from governmental and quasi-governmental entities, and (b) nonimmigrant status for individuals of extraordinary ability (O-1A).

Details:

  • STEM-Related Petition Trends: EB-2 and O-1A Categories FY 2018-FY 2023, USCIS (N.D.).
  • USCIS Policy Alert, PA-2022-03 (Jan. 21, 2022).

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16. CBP Updates Website, Provides Trusted Traveler Processing Times

In an effort to reduce unscheduled visits to Trusted Traveler Program (TTP) Enrollment Centers, U.S. Customs and Border Protection (CBP) has expanded the TTP-related topics on its public website portal to include the ability to select the option “update documents in my account.”

CBP also noted that processing times vary by applicant, but on average applicants can expect these timeframes:

  • Global Entry: 4-6 months
  • NEXUS: 12-14 months
  • SENTRI: 10-12 months
  • FAST: 1-2 weeks

CBP said applicants should check the Trusted Traveler Program website periodically for updates or the status of their applications. Additionally, CBP noted that those who submit renewal applications before their membership expires can continue to use the benefits after the membership expiration date.

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17. DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations

Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations.

To compute the 2024 annual adjustment, DOL multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.03241, and rounded to the nearest dollar.

Details:

  • DOL final rule, 89 Fed. Reg. 1810 (Jan. 11, 2024).

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18. ABIL Global: The Netherlands

This article discusses the principle of single nationality in Dutch law and the proportionality test, and how they work in practice.

One solid principle of Dutch nationality law is that dual nationality must be avoided. As a result of the Tjebbes ruling by the European Union (EU) Court of Justice, this principle is mitigated by a proportionality test for cases of automatic loss of Dutch nationality. A provision to this effect was introduced in the Netherlands Nationality Act (NNA) on April 1, 2022.

The most frequent cases of automatic loss of Dutch citizenship result from:

  1. Voluntary acquisition of another nationality; or
  2. Prolonged stay abroad in the possession of two (or more) nationalities.

There are exemptions. For example, acquiring a second nationality does not lead to loss of Dutch nationality if one is married to a person of the new nationality. Nevertheless, these cases occur frequently, and for many of the affected individuals, it is not so much the fact of losing Dutch nationality but rather the automatic character of the loss that strikes the most. It happens by act of law; a decision by a Dutch authority to revoke the nationality is not necessary. The victim often only finds out that they are not Dutch anymore when they try to renew their Dutch passport.

 

 

The Tjebbes Ruling

As of April 1, 2022, a new provision was included in the NNA following the Tjebbes ruling by the EU Court of Justice of March 12, 2019. Through a new subcategory of the “option procedure,” this group of persons can request to regain their Dutch citizenship. The option procedure is, next to naturalization, a way to request Dutch nationality, in particular for persons of Dutch descent and former Dutch nationals. By submitting an option request based on the new provision, a proportionality test can be requested. The test examines whether the loss of Dutch citizenship was in effect disproportionate.

This criterion was applied in the Tjebbes ruling, in which the EU Court mentioned several circumstances that may be weighed in the proportionality test, mainly related to the person’s rights of free movement and residence in the EU territory and whether these have been lost due to the loss of nationality.

Nationality law is increasingly influenced by EU law. This has softened somewhat the strictness of the Dutch law in avoiding dual nationality. Former Dutch nationals now have a formal remedy against disproportionality of the loss of their nationality.

In practice, the standard to meet is high. Case law will determine how effective this proportionality test will turn out to be.

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New Publications and Items of Interest

DHS session on fee changes. The Department of Homeland Security will hold a virtual public engagement session on changes to immigration benefit fees made by a final rule. The session will be held at 2 p.m. ET on February 22, 2024. To register, input your email address at https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_1081.

USCIS webinar on H-1B electronic registration process. U.S. Citizenship and Immigration Services will present a webinar on the fiscal year 2025 H-1B electronic registration process on Wednesday, February 21, 2024, from 2 to 3:30 p.m. ET. The webinar will include updates on changes to the process, a step-by-step overview of how to submit an H-1B registration, and a Q&A session.

Immigration agency X (formerly Twitter) accounts:

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

E-Verify webinar schedule: E-Verify released its calendar of webinars.

Alliance of Business Immigration Lawyers:

  • ABIL is available on X (formerly Twitter): @ABILImmigration

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ABIL Member / Firm News

Charles Foster, of Foster LLP, recently discussed federal and state immigration policies at the U.S. southern border on C-SPAN’s Washington Journal broadcast.

Fredrikson’s Immigration Group will host a discussion, New Developments and Trends in Immigration Law and Preparing for the Upcoming H-1B Lottery Season, on Thursday, February 15, 2024, at 12 p.m. CT on preparing for the upcoming H-1B lottery season and new developments and trends in business immigration. Presenters will discuss FY 2025 H-1B cap season preparation, the status of proposed immigration legislation and regulations, and agency processing and adjudication updates.

Klasko Immigration Law Partners, LLP, has published a new blog post: USCIS to Launch Organizational Accounts Mid-February.

Cyrus Mehta has authored a new blog post: CSPA Disharmony: USCIS Allows Child’s Age To Be Protected Under the Date for Filing While DOS Allows Child’s Age To Be Protected Under the Final Action Date.

Mr. Mehta and Kaitlyn Box have authored several new blog posts: Musings on Brand X As a Force for Good Ahead of the Supreme Court Ruling on Chevron Deference and USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour.

Angelo Paparelli has authored a new blog post: Worrisome Waiting: How Will USCIS “Modernize” the
H-1B Visa Program?

Siskind Susser, P.C., announced that “Gen,” a generative artificial intelligence project on which colleagues at the firm have been working, is launching on January 16, 2024. A collaboration between Visalaw.ai and the American Immigration Lawyers Association, Gen is powered by OpenAI’s GPT4 large language model. According to Siskind Susser, it has 100,000+ pages of immigration law documents, treatises, and data sets and can answer most immigration law questions, and provide citations and links to the documents it uses to create the answers. Unlike ChatGPT, the answers are derived only from Siskind Susser’s law library, and lawyers can check the original source material to ensure the accuracy of the answers provided. Gen also allows lawyers to upload their own documents. Aside from answering questions, Gen will draft petition letters, memos, RFE responses, checklists, questionnaire forms, and many other kinds of documents. It also can summarize and translate documents. To join the waiting list for Gen, go to www.visalaw.ai.

Siskind Susser, P.C., announced that Jason Susser was promoted to Partner. Siskind Susser said that Mr. Susser is a leader in managing immigration matters for founders of technology startup companies. He authored the book, “Immigration for Startups: A Guide for Founders,” and is an immigration advisor to several of the country’s top business schools and startup accelerators. He has become a “go-to immigration lawyer for entrepreneurs in Silicon Valley.” Mr. Susser is also an entrepreneur and is a founder of Visalaw Ventures, a technology company spun off from Siskind Susser.

Stephen Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: Can Joe Biden ‘Shut Down the Border’ on His Own? “Closing the border arguably would violate” domestic and international asylum laws,” he said.

Mr. Yale-Loehr was quoted by the Los Angeles Times in A Decade-Old Scalia Dissent Is Now Driving the Texas-Biden Dispute Over Illegal Immigration. Referring to new Texas law SB4, which the article notes “would authorize Texas police and state judges to arrest, detain and deport migrants who are suspected of crossing the border illegally,” Mr. Yale-Loehr said, “This is a frontal assault on the federal primacy in immigration enforcement, and it’s definitely going to the Supreme Court.”

Mr. Yale-Loehr was quoted by the Chicago Tribune in No Help: The Federal Immigration Deal Won’t Fix the Migrant Crisis in Chicago—and It’s Unlikely to Pass Congress Anyway. “When migrants enter the United States at the border, they have ‘credible fear interviews’ lasting up to 10 to 20 minutes with immigration authorities,” he said. Mr. Yale-Loehr also noted that proposed legislation recommends raising the bar for asylum eligibility, which means there could be more expedited removals after migrants’ credible fear interviews. “That may reduce the number of asylum-seekers in Chicago because they’re deemed not even to be eligible to apply for asylum at the border.”. He also noted that migrants don’t often understand nuanced changes in immigration policy: “People who are fleeing likely don’t read the New York Times. They are going to come no matter what the law is or how Congress changes.”

Mr. Yale-Loehr was quoted by the Economist in America’s Immigration Policies Are Failing: A New Surge of Migration is Straining a Broken System and Might Cost Joe Biden the Election (available by subscription). The article notes that the immense wait for a court hearing, low chance of detention, and the prospect of work in the United States encourage migrants with a weak claim to cross the border and claim asylum. Prioritizing the most recent arrivals’ cases would reduce this incentive, Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by the Boston Globe in Biden Has Been Giving Millions of Migrants False Hope; Desperate People Have Been Allowed Into the Country While They Apply for the Right to Stay, But Such Permission is Very Difficult to Obtain. He said that many migrants may “lose [their case for] asylum, either because they don’t have an attorney to represent them or they don’t have a strong case on the merits.” Coming from countries with difficult political circumstances isn’t enough to support an asylum claim, the article notes—asylum is granted based on persecution due to race, religion, nationality, membership in a particular social group, or political opinion. “It’s very hard to show that the persecution is well-founded based on one of those five characteristics,” he explained. In the meantime, the article suggests, a large number of migrants live in uncertainty. “That’s bad for our legal system, it’s bad for our economy, and it’s also bad for the migrants themselves,” Mr. Yale-Loehr said. The article also quotes from a recent paper Mr. Yale-Loehr co-authored that calls for expanding other legal pathways to the United States for migrants beyond asylum. “We cannot cut off all avenues to asylum, but we also cannot continue to accept applications from all who arrive, especially those with highly unlikely claims,” the paper says. Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now.

Mr. Yale-Loehr was quoted by the Chronicle of Higher Education in Why a Court Challenge to an Obscure Fisheries Regulation Could Upend Student Visa Policy (available by registration). The article discusses a pending Supreme Court case that may have implications for international students and institutions of higher education. He said, “Colleges and universities may think cases involving fisheries regulation have nothing to do with them, but what the Court decides will affect them one way or another.” He said the Supreme Court’s decision could have an impact on international-student policy in several ways: it could put any current legal challenges on hold until the fisheries cases are decided; it could change the federal government’s approach to rulemaking in progress, such as updates to the skilled worker visa program that affect both international students and foreign workers hired by colleges and universities; and if a new standard were applied retroactively, that would allow past policy disputes, like those affecting optional practical training, to be revisited in the courts.

Mr. Yale-Loehr was quoted by the New York Times in Lawyer and Son Ensnared Hundreds of Immigrants in Fraud Scheme (available by subscription). The article discusses a case in which, according to prosecutors, a lawyer and his son advised clients seeking green cards to sign petitions under the Violence Against Women Act (VAWA), which enables undocumented immigrants who are victims of abuse to gain lawful permanent residence in the United States. Mr. Yale-Loehr said he had never heard of someone using VAWA to conduct immigration fraud, but such fraud can be hard to root out. “If it sounds too good to be true, it probably is. If someone says, ‘I can guarantee you a green card if you just sign here,’ that’s a sure sign that something is funny.”

Mr. Yale-Loehr was quoted by CBS News in Biden Administration Has Admitted More Than 1 Million Migrants Into U.S. Under Parole Policy Congress is Considering Restricting. If Congress restricts parole, it would curtail a key presidential power, he said. “Every administration, Republican and Democratic, has used parole because in an emergency, like the Mariel boatlift or the Hungarian Revolution, you want to have something that allows you to bring in large groups of people to get them out of harm’s way. Every administration wants to have maximum flexibility and anything that the Republicans do to require restrictions on parole will hamper any future administration.”

Mr. Yale-Loehr was quoted by the Daily Caller in Biden And Abbott Have Set the Stage for One of the Biggest State-Versus-Feds Immigration Fights in More Than a Decade. The article discusses Texas’s challenge to the role historically played by the federal government in immigration law enforcement and a related complaint filed by the Biden administration in the Supreme Court accusing Texas of overstepping its authority with anti-immigration measures. The Supreme Court previously ruled in favor of the federal government in an Arizona case, but it’s not clear whether the same will be true in the Texas case. “The question is now that we’ve got three different justices on the Supreme Court than were on the court on the Arizona case, will the current Supreme Court rule the same way? I suspect that Texas is hoping that with more conservative justices on the Supreme Court now, they might be able to come out with a different result than Arizona,” Mr. Yale-Loehr said.

Mr. Yale-Loehr announced a webinar, Immigration Slavery in America: A True Story of Forced Labor and Liberation, to be held Tuesday, February 6, 2024, at 2 p.m. ET. Mr. Yale-Loehr will moderate a discussion with author Saket Soni and panelists about Mr. Soni’s book, The Great Escape. The book tells the story of a group of immigrants trapped in the largest human trafficking scheme in modern U.S. history. The webinar is co-sponsored by the Cornell Migrations Initiative and Cornell Law School’s Migration and Human Rights Program.

Mr. Yale-Loehr co-authored Is Chevron Dead? Thoughts After Oral Arguments in Relentless, Inc. and Loper Bright Enterprises, published by Think Immigration.

Mr. Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: What Branch of Government is ‘Really’ Responsible for the crisis at the border? He said, “Each of the three branches of government has a role to play in immigration law and policy, and each has failed. The result: a quagmire, where nothing gets resolved and matters get worse every day. Every branch of government is to blame.” For example, the courts have ruled both with and against the executive branch under both Republican and Democratic administrations, Mr. Yale-Loehr said. “Thus, people don’t know how courts will rule, which reduces predictability. Moreover, litigation takes time, and is not a good way to manage immigration law and policy.” https://www.politifact.com/article/2024/jan/17/ask-politifact-what-branch-of-government-is-really/

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-02-04 11:05:342024-02-08 11:06:10ABIL Immigration Insider • February 4, 2024

ABIL Immigration Insider • January 7, 2024

January 07, 2024/in Immigration Insider /by ABIL

In this issue:

1. USCIS Issues Guidance on ‘Ability to Pay’ Requirement When Adjustment Applicants Change Employers – U.S. Citizenship and Immigration Services issued policy guidance, effective immediately, on how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker changes employers.

2. DOJ Sues Texas Over State Migration Bill – The Department of Justice sued the state of Texas over a bill that would create new state crimes tied to federal prohibitions on unlawful entry and reentry by noncitizens into the United States.

3. DOS Issues ‘Bright Forecast’ for Worldwide Visa Operations – The Department of State said its visa processing capacity “has recovered faster than projected” and announced a “bright forecast” for worldwide visa operations in 2024.

4. ABIL Global: Canada – The Canadian government is targeting skilled workers and French-speaking candidates in a new category-based selection process.

5. DHS Increases Premium Processing Fees – On February 26, 2024, the Department of Homeland Security will increase premium processing fees charged by U.S. Citizenship and Immigration Services.

6. U.S. and Mexico Release Joint Communique Following Visit to Discuss Migration Management – On December 27, 2023, a U.S. delegation visited Mexican President Andrés Manuel López Obrador and others to discuss migration management.

7. DOS Proposes Supplemental Questionnaire for Passport Applications – The Department of State seeks public comment on a proposed supplemental questionnaire to an existing passport application that would solicit information relating to the respondent’s identity.

8. State Dept. Announces Pilot Program to Resume Domestic H-1B Nonimmigrant Visa Renewals – The pilot program will accept applications from January 29 to April 1, 2024.

9. OFLC Reminds Employers About Deadlines for Peak H-2B Filing Season – The federal Department of Labor announced that from January 2-4, 2024, it will accept H-2B applications for temporary nonprofessional workers requesting a start date of April 1, 2024, or later.

10. USCIS Updates Policy Guidance for International Students – U.S. Citizenship and Immigration Services issued policy guidance regarding the F and M student nonimmigrant classifications, including the agency’s role in adjudicating related applications for employment authorization, change of status, extension of stay, and reinstatement of status.

11. State Dept. Expands Consular Authority for Nonimmigrant Visa Interview Waivers – The Department of State has determined that several categories of interview waivers are in the national interest. As of January 1, 2024, consular officers will have discretion to waive the in-person interview for those categories.

12. State Dept. Advises on Passport Processing – Passport processing times have returned to the agency’s pre-pandemic norm, the Department of State said. Passport applications will be processed within 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service. Processing times do not include mailing.

13. Detained Workers Are Employees Due Minimum Wage in Private Facility Contracted With ICE, Supreme Court of Washington Finds – Detained workers at the private detention center were “employees” and therefore were due at least the minimum wage, the Supreme Court of Washington held.

14. USCIS Reaches FY 2024 H-1B Cap – U.S. Citizenship and Immigration Services has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year 2024.

15. DHS Publishes Federal Register Notice Reiterating Extensions of TPS Re-Registration Periods for Several Countries – The Department of Homeland Security published a Federal Register notice reiterating extensions of the periods to re-register for Temporary Protected Status under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

16. District Court Rules in College’s Favor in EB-1 Case – In Scripps College v. Jaddou, a U.S. District Court in Nebraska held that U.S. Citizenship and Immigration Services improperly denied the plaintiff’s I-140 immigration petition when it found that the beneficiary of the petition did not qualify for an employment-based first preference visa as an “outstanding professor or researcher.”

17. ETA Seeks Information on STEM and Non-STEM Occupations in PERM Schedule A – The Department of Labor’s Employment and Training Administration is seeking information from the public to potentially consider revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics (STEM), including Artificial Intelligence-related occupations, and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers.

18. ETA Announces Adverse Effect Wage Rates for H-2A Workers in 2024 – The Employment and Training Administration has announced Adverse Effect Wage Rates for H-2A workers in 2024, for range (herding or production of livestock) and non-range (agricultural labor or services other than the herding or production of livestock) occupations.

19. January Visa Bulletin Released; Religious Workers Category Extended – The Department of State’s Visa Bulletin for January 2024 notes that a stopgap funding bill recently passed by Congress extended the employment fourth preference Certain Religious Workers (SR) category until February 2, 2024.

20. USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140 – U.S. Citizenship and Immigration Services has begun transitioning the filing location for Form I-907, Request for Premium Processing, when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the service centers to appropriate USCIS lockboxes.

21. OFLC Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment – The Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator has determined that current requirements for labor supply states will remain in effect, with one modification: OFLC will no longer recognize North Carolina and Texas as traditional labor supply states for the state of Michigan.

22. USCIS Releases Employment-Based Adjustment of Status FAQs – U.S. Citizenship and Immigration Services released frequently asked questions about employment-based adjustment of status.

23. State Dept. Issues Final Rule to Eliminate Informal Evaluations of Immigrant Visa Applicants’ Family Members – Effective January 8, 2024, the Department of State is amending its immigrant visa regulations by removing the section allowing a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility.

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 – January 2024


1. USCIS Issues Guidance on ‘Ability to Pay’ Requirement When Adjustment Applicants Change Employers

On January 5, 2024, U.S. Citizenship and Immigration Services issued policy guidance, effective immediately, on how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker changes employers.

The guidance notes that generally, employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer “must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition until the beneficiary obtains lawful permanent residence.”

The updated guidance, which applies to petitions filed on or after January 5, 2024, explains that when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or “ports”) to a new employer while the Form I-140 is pending, USCIS determines whether the petitioner meets the ability to pay requirements “only by reviewing the facts in existence from the priority date until the filing of the Form I-140.”

Details:

  • USCIS alert (Jan. 5, 2024).
  • USCIS Policy Alert, PA-2024-01 (Jan. 5, 2024).

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2. DOJ Sues Texas Over State Migration Bill

The Department of Justice (DOJ) sued the state of Texas on January 3, 2024, regarding a new Texas law known as Senate Bill 4 (SB4). The bill would create, effective March 5, 2024, new state crimes tied to federal prohibitions on unlawful entry and reentry by noncitizens into the United States and would authorize state judges to order the removal of certain noncitizens. It would allow Texas law enforcement officers to arrest those suspected of being in the United States without authorization.

Noting that “Texas cannot run its own immigration system,” the DOJ’s complaint states that in addition to violating the U.S. Constitution, which tasks the federal government with regulating immigration and controlling the international borders, SB4 also would “intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

On the same day the suit was filed, Gov. Abbott posted, “Biden sued me today because I signed a law making it illegal for an illegal immigrant to enter or attempt to enter Texas directly from a foreign nation. I like my chances. Texas is the only government in America trying to stop illegal immigration.”

Several civil rights groups, including the American Civil Liberties Union and the Texas Civil Rights Project, filed a separate lawsuit in December 2023 challenging the constitutionality of SB4.

Details:

  • S. v. Texas, Case No. 1:24-cv-00008 (Jan. 3, 2024).
  • Justice Department Sues Texas Over State Law Allowing Police to Arrest Migrants Who Cross the Border Illegally, NBC News (Jan. 3, 2024).
  • Civil Rights Groups File Federal Lawsuit Against New Texas Immigration Law SB4, CBS Texas (Dec. 19, 2023).

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3. DOS Issues ‘Bright Forecast’ for Worldwide Visa Operations

On January 2, 2024, the Department of State (DOS) announced a “bright forecast” for worldwide visa operations. DOS said its visa processing capacity “has recovered faster than projected. We issued more nonimmigrant visas (NIVs) worldwide in 2023 than in any year since 2015.”

DOS said it remains focused on “reducing wait times for visitor visa applicants who require an in-person interview, particularly in countries where demand remains at unprecedented levels.” Its goal is for more than 90 percent of its overseas posts to have visitor visa interview wait times under 90 days in 2024.

DOS noted that its 230 U.S. embassies and consulates issued more than 10.4 million visas globally in fiscal year 2023. The agency attributed its progress in part to improved efficiency through interview waivers in several key visa categories, including for many students and temporary workers. Additionally, DOS said, applicants renewing nonimmigrant visas in the same classification within 48 months of the prior visa’s expiration date can apply without an in-person interview in their countries of nationality or residence. “This continues to be one of our best tools to reduce interview appointment wait times while continuing to make rigorous national security decisions in every case,” DOS said.

In 2023, DOS said, it (1) prioritized student and academic exchange visitor visa interviews to facilitate study at U.S. universities and colleges; (2) processed seasonal agricultural and nonagricultural worker visas, issuing a “record-breaking 442,000 visas to H-2A and H-2B temporary workers in 2023, with nearly 90 percent going to qualified workers from Mexico, El Salvador, Guatemala, and Honduras”; (3) issued a “record-breaking 365,000 nonimmigrant visas to airline and shipping crewmembers”; and (4) issued 590,000 nonimmigrant and immigrant visas, “the most ever,” to high-skilled workers and executives in a range of sectors, including emerging technology and health care. “Among those, we issued nearly double the number of EB-3 [green cards] in FY 2023 than in FY 2019, the last full year before the pandemic.” DOS also issued all the available diversity green card lottery visas during the DV-2023 program year.

Details:

  • DOS Worldwide Visa Operations: Update (Jan. 2, 2024).

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4. ABIL Global: Canada

The Canadian government is targeting skilled workers and French-speaking candidates in a new category-based selection process.

In a marked departure from its points-based immigration program selection system, the Honourable Sean Fraser, then-Minister of Immigration, Refugees and Citizenship, announced on May 31, 2023, the launch of a new measure of category-based selection for Canada’s Express Entry management system to respond to Canada’s changing economic and labor market needs, with an additional focus on Francophone immigration. This measure allows Immigration, Refugees and Citizenship Canada (IRCC) to issue invitations to apply to candidates who hold specific skills, training, or language abilities. For 2023, category-based selection invitations will target candidates who have a strong French language proficiency or work experience in the fields of health care; science, technology, engineering, and mathematics (STEM) professions; trades, such as carpenters, plumbers, and contractors; transport; agriculture; and agri-food. As of January 2024, this list of categories is subject to change.

Express Entry is the system used by IRCC to manage skilled workers seeking to become Canadian Permanent Residents through the Federal Skilled Worker Program, the Federal Skilled Trades Program, the Canadian Experience Class, and a portion of the Provincial Nominee Program. Candidates are ranked according to a Comprehensive Ranking System (CRS), which is a points-based system that ranks candidates based on factors such as their education, language skills, work experience, and age. IRCC then periodically invites applicants with the highest scores to apply for permanent residence.

Among other category-based draws that began on June 28, 2023, IRCC issued invitations to apply in the following categories:

  • On July 12, 2023, IRCC issued 3,800 invitations to apply to candidates with French language proficiency with a minimum CRS score of 375.
  • On September 28, 2023, IRCC held a targeted draw in the agriculture and agri-food occupations, inviting 600 applicants with a minimum CRS score of 354.
  • On October 26, 2023, IRCC issued 3,600 invitations to apply to candidates in health care occupations with a minimum CRS score of 431.

In 2023, before the first targeted draw, the lowest CRS score was recorded at 481 points for candidates in an all-program draw.

Following the announcement and the beginning of targeted draws, the CRS cut-off decreased significantly for Express Entry candidates within the five targeted categories. However, since the first targeted draw at the end of June 2023, the lowest invitations for an all-program draw were issued to candidates with a minimum CRS score of 496. Thus, the CRS cut-off score has increased for profiles not included in the list of targeted occupations. In addition, the introduction of category-based selection has significantly diminished the number of invitations sent out to Express Entry profiles in the all-program draws.

The Canadian Government seeks to welcome 110,770 and 117,500 skilled workers in 2024 and 2025, respectively, through the Federal Skilled Worker Program, the Federal Skilled Trades Program, and the Canadian Experience Class. The Provincial Nominee Program will account for an additional 110,000 Canadian permanent residents in 2024, and 120,000 in 2025.

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5. DHS Increases Premium Processing Fees

On February 26, 2024, the Department of Homeland Security will increase premium processing fees charged by U.S. Citizenship and Immigration Services (USCIS):

  • From $1,500 to $1,685, for Form I-129, Petition for a Nonimmigrant Worker, for H-2B and R-1 nonimmigrant status, and Form I-765, Application for Employment Authorization, for certain F-1 students
  • From $1,750 to $1,965, for Form I-539. Application to Extend/Change Nonimmigrant Status, for F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, L-2, H-4, O-3, P-4, and R-2 nonimmigrant status
  • From $2,500 to $2,805, for Form I-140, Immigrant Petition for Alien Workers, for employment-based classifications E11, E12, E21 (non-NIW), E31, E32, EW3, and recently available E13 and E21 (NIW)

A table in the final rule shows that overall, of those eligible for premium processing in fiscal years 2018 through 2022, 57 percent chose to submit a premium processing request:

If USCIS receives a Form I-907 postmarked on or after February 26, 2024, with the incorrect filing fee, it will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt, USCIS said.

Details:

  • USCIS alert (Dec. 27, 2023).
  • USCIS final rule, 88 Fed. Reg. 89539 (Dec. 28, 2023).

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6. U.S. and Mexico Release Joint Communique Following Visit to Discuss Migration Management

On December 27, 2023, a U.S. delegation visited Mexican President Andrés Manuel López Obrador and others to discuss migration management. The U.S. delegation was led by Secretary of State Antony Blinken, Secretary of Homeland Security Alejandro Mayorkas, and White House Homeland Security Advisor Elizabeth Sherwood-Randall.

The two countries reaffirmed their existing commitments on fostering “orderly, humane, and regular migration,” including reinforcing their partnership to address the root causes of migration, and the two countries’ initiative for Cubans, Haitians, Nicaraguans, and Venezuelans. The communique emphasized ongoing cooperation, “to include enhanced efforts to disrupt human smuggling, trafficking, and criminal networks, and continuing the work to promote legal instead of irregular migration pathways.” Both delegations also agreed on the importance of maintaining and facilitating bilateral trade at the U.S.-Mexico border.

Mexican President López Obrador stressed the need to continue investing in ambitious development programs throughout the hemisphere. The delegations also discussed “the benefit of regularizing the situation of long-term undocumented Hispanic migrants and DACA recipients, who are a vital part of the U.S. economy and society.”

The two delegations agreed to meet again in Washington in January 2024.

Details:

  • Joint Communique (Dec. 28, 2023).

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7. DOS Proposes Supplemental Questionnaire for Passport Applications

The Department of State (DOS) has published a 60-day notice seeking public comment on a proposed supplemental questionnaire to an existing passport application that would solicit information relating to the respondent’s identity, including family and birth circumstances, that is needed before passport issuance. If such information on Form DS-5513 is needed, a passport agency will mail the form to the applicant for completion and return, or the applicant can download and complete a fillable PDF version.

DOS will accept comments until February 26, 2024.

Details:

  • DOS notice, 88 Fed. Reg. 89002 (Dec. 26, 2023).

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8. State Dept. Announces Pilot Program to Resume Domestic H-1B Nonimmigrant Visa Renewals

On December 21, 2023, the Department of State (DOS) announced a pilot program to resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29 to April 1, 2024.

Participation in the pilot is limited to individuals who have previously submitted fingerprints in connection with an application for a prior non-diplomatic nonimmigrant H-1B visa, are eligible for a waiver of the in-person interview requirement, and meet other applicable requirements. DOS said the goal of the pilot is “to test the Department’s technical and operational ability to resume domestic visa renewals for specific nonimmigrant classifications and to assess the efficacy of this program in reducing worldwide visa wait times by shifting certain workloads from overseas posts to the United States.”

Applicants who meet the requirements can participate during the application window by applying online. Written comments and related materials must be received by midnight April 15, 2024.

Details:

  • DOS notice, 88 Fed. Reg. 88467 (Dec. 21, 2023).

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9. OFLC Reminds Employers About Deadlines for Peak H-2B Filing Season

On December 22, 2023, the Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2024, or later opened on January 2, 2024.

OFLC said it will randomly order for processing all H-2B applications requesting a work start date of April 1, 2024, that were filed during the initial three calendar days (January 2-4, 2024). OFLC warned:

If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will issue a Notice of Deficiency. If multiple filings are submitted during the three-day filing window, all applications will receive a Notice of Deficiency requesting that the employer demonstrate that the job opportunities are not the same. Employers that fail to establish a bona fide need for each application will receive a non-acceptance denial for each application.

Details:

  • OFLC announcement (Dec. 22, 2023).

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10. USCIS Updates Policy Guidance for International Students

On December 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance regarding F and M nonimmigrant students, including the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status for these students and their dependents in the United States. USCIS said it “expects that this will provide welcome clarity to international students and U.S. educational institutions on a wealth of topics, including eligibility requirements, school transfers, practical training, and on- and off-campus employment.”

For example, USCIS said, the guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but such a student may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate an intent to depart after a temporary period of stay.

In addition, the guidance specifies how an F student seeking an extension of optional practical training based on a degree in a science, technology, engineering, or mathematics field may be employed by a startup company, as long as the employer adheres to the training plan requirements, remains in good standing with E-Verify, and provides compensation commensurate to that provided to similarly situated U.S. workers, among other requirements.

Details:

  • USCIS alert (Dec. 20, 2023).
  • USCIS policy alert, PA-2023-34 (Dec. 20, 2023).

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11. State Dept. Expands Consular Authority for Nonimmigrant Visa Interview Waivers

On December 21, 2023, the Department of State (DOS) announced that it had consulted with the Department Homeland Security and determined that several categories of interview waivers are in the national interest. As of January 1, 2024, consular officers have discretion to waive the in-person interview for:

  • First time H-2 visa applicants (temporary agricultural and nonagricultural workers) and
  • Other nonimmigrant visa applicants applying for any nonimmigrant visa classification who:
    • Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa; and
    • Are applying within 48 months of their most recent nonimmigrant visa’s expiration date.

Consular officers may still require in-person interviews on a case-by-case basis or because of local conditions. DOS encourages applicants to check embassy and consulate websites.

Details:

  • DOS notice (Dec. 21, 2023).

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12. State Dept. Advises on Passport Processing

On December 18, 2023, the Department of State (DOS) announced that passport processing times have returned to the agency’s pre-pandemic norm. As of December 18, 2023, DOS said, passport applications will be processed within 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service, which costs an additional $60. Processing times begin when DOS receives an application at a passport agency or center and do not include mailing times.

DOS said that this year, demand for passports was “unprecedented.” Between October 2022 and September 2023, the agency issued more than 24 million passport books and cards, the highest number in U.S. history.

Details:

  • DOS notice (Dec. 18, 2023).

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13. Detained Workers Are Employees Due Minimum Wage in Private Facility Contracted With ICE, Supreme Court of Washington Finds

The main question in this case before the Supreme Court of the State of Washington concerned a challenge to the detained-worker pay practices of the GEO Group Inc., which owns and operates the Northwest ICE Processing Center (NWIPC), a private immigration detention center in Tacoma, Washington, under a contract with the federal government. The plaintiffs objected to GEO’s practice of paying civil immigration detainees less than Washington state’s minimum wage. Plaintiffs asked the court to determine whether Washington’s Minimum Wage Act (MWA) applies to detained workers in a privately owned and operated detention facility. The court concluded that it does.

GEO contracts with U.S. Immigration and Customs Enforcement (ICE) to confine up to 1,575 noncitizen, noncriminal adults in administrative civil custody as they await review and determination of their immigration status. Under the ICE contract, GEO developed and manages a Voluntary Work Program, the purpose of which is to provide detainees opportunities to work and earn money while confined. The NWIPC detainees “were not to be used to perform” the “core obligations” that, under the ICE contract, were the responsibilities and duties of GEO. However, GEO relied on the detained workers to perform “substantially the core work required of GEO under the contract.” GEO paid its detained workers $1 per day to perform these essential tasks.

The State of Washington and a class of NWIPC detainees sued GEO in September 2017. They alleged that GEO’s practice of paying detainees less than Washington’s minimum wage to work in the detention center violated Washington’s MWA.

The Supreme Court of Washington found that the detained workers at the private detention center were “employees” within the meaning of the MWA. The plaintiffs argued that an exemption indicates that the Washington legislature contemplated the MWA’s application to individuals in detention or custody who are permitted to work. They argued that the exemption unambiguously applies only to individuals detained in public, government-run institutions. Therefore, they said, the exemption does not apply to the detained workers at the privately owned and operated facility. The Supreme Court of Washington agreed.

Details:

  • Nwauzor v. The GEO Group, Inc., No. 101786-3 (Dec. 21, 2023).
  • “CEO Group Must Pay Minimum Wage to Immigrant Detainees, Court Rules,” Reuters (Dec. 22, 2023).

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14. USCIS Reaches FY 2024 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.

USCIS said it will send non-selection notices to registrants through their online accounts. When the agency finishes sending the non-selection notifications, the status for properly submitted registrations that USCIS did not select for the FY 2024 H-1B numerical allocations will show:

  • Not Selected: Not selected—not eligible to file an H-1B cap petition based on this registration.

USCIS said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

Details:

  • USCIS alert (Dec. 13, 2023).

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15. DHS Publishes Federal Register Notice Reiterating Extensions of TPS Re-Registration Periods for Several Countries

The Department of Homeland Security (DHS) published a Federal Register notice on December 13, 2023, reiterating extensions of the periods to re-register for Temporary Protected Status (TPS) under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. As previously announced, the re-registration period for each country is changing from 60 days to the full length of each country’s current TPS designation extension. The re-registration extensions are solely for TPS beneficiaries who properly filed for TPS during a previous registration period.

The 18-month re-registration periods for these current TPS beneficiaries, which are currently open, are extended to the following dates:

  • El Salvador, through March 9, 2025
  • Haiti, through August 3, 2024
  • Honduras, through July 5, 2025
  • Nepal, through June 24, 2025
  • Nicaragua, through July 5, 2025
  • Sudan, through April 19, 2025

DHS said that limiting the re-registration period to 60 days “for these particular beneficiaries might place a burden on applicants who cannot timely file, but who otherwise would be eligible to re-register for TPS. In particular, ongoing litigation resulted in overlapping periods of TPS validity that were announced in several Federal Register notices, which may confuse some current beneficiaries. This notice allows beneficiaries of these countries who have not been required to re-register for TPS for the past few years due to litigation to re-register through the entire designation extension period.”

Details:

  • DHS news release (Dec. 13, 2023).
  • S. Citizenship and Immigration Services notice, 88 Fed. Reg. 86665 (Dec. 14, 2023).

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16. District Court Rules in College’s Favor in EB-1 Case

In Scripps College v. Jaddou, a U.S. District Court in Nebraska held that U.S. Citizenship and Immigration Services (USCIS) improperly denied the plaintiff’s I-140 immigration petition when it found that the beneficiary of the petition did not qualify for an employment-based first preference visa as an “outstanding professor or researcher.” The court ruled in favor of the plaintiff, Scripps College.

Scripps argued that USCIS’s denial of its I-140 petition must be reversed because USCIS made internally inconsistent findings, imposed novel evidentiary requirements, disregarded relevant factors, and was not supported by substantial evidence.

Citing various decisions, the court noted that agency action must be upheld on review unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” An agency decision is arbitrary and capricious if the agency acted outside “the bounds of reasoned decision-making, relied on factors which Congress has not intended it to consider, provided an explanation that runs counter to the evidence, or makes a decision that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” the court noted.

Among other things, the court found that USCIS had made inconsistent findings based on the evidence, and made findings that were controverted by the evidence. Further, the court said, the “unexplained internal inconsistencies” reflected that USCIS failed to articulate a satisfactory explanation for its action, including “a rational connection between the facts found and the choice made.” USCIS also “imposed novel evidentiary requirements in its denial” of Scripps’ I-140 petition, the court said. Concluding that USCIS’s decision “was arbitrary and capricious, an abuse of discretion, and contrary to the law,” the court granted Scripps’ motion for summary judgment and denied USCIS’s motion for summary judgment.

Details:

  • Scripps College v. Jaddou (Dec. 12, 2023).

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17. ETA Seeks Information on STEM and Non-STEM Occupations in PERM Schedule A

The Department of Labor’s Employment and Training Administration (ETA) is seeking information from the public to potentially consider revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics (STEM), including Artificial Intelligence-related occupations, and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers.

ETA said its request for information (RFI) will provide the public an opportunity to address whether and why STEM occupations should be added to Schedule A, offer information on which occupations should be considered as falling under the umbrella of STEM, and request data, studies, and related information that should be considered to establish a reliable, objective, and transparent methodology for identifying STEM or non-STEM occupations with a significant shortage of workers that should be added to or removed from Schedule A. “To the extent possible and wherever appropriate, responses to this RFI should indicate the question number(s) and include specific information, data, statistical models and metrics, and any resources relied on in reaching conclusions for its claims, rather than relying on general observations,” ETA said.

Details:

  • PERM Schedule A Request for Information, announcement, Dept. of Labor (Dec. 15, 2023).
  • Request for Information (advance copy), Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations.

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18. ETA Announces Adverse Effect Wage Rates for H-2A Workers in 2024

The Department of Labor’s (DOL) Employment and Training Administration (ETA) has announced Adverse Effect Wage Rates (AEWRs) for H-2A agricultural workers in 2024, for range (herding or production of livestock) and non-range (agricultural labor or services other than the herding or production of livestock) occupations. The monthly AEWR for range occupations in calendar year 2024 is $1,986.76. The non-range AEWR varies by state, and ranges from $14.53 to $19.25 per hour.

The AEWRs are for the employment of temporary or seasonal nonimmigrant foreign workers. AEWRs are the minimum wage rates DOL has determined must be offered, advertised in recruitment, and paid by employers to H-2A workers and workers in corresponding employment so that the wages and working conditions of workers in the United States who are similarly employed will not be adversely affected.

Details:

  • Federal Register notice (range occupations), 88 Fed. Reg. 86679 (Dec. 14, 2023).
  • Federal Register notice (non-range occupations), 88 Fed. Reg. 86677 (Dec. 14, 2023).

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19. January Visa Bulletin Released; Religious Workers Category Extended

The Department of State’s Visa Bulletin for January 2024 notes that H.R. 6363, a stopgap funding bill signed on November 16, 2023, extended the employment fourth preference Certain Religious Workers (SR) category until February 2, 2024. The bulletin notes that no SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight February 1, 2024. Visas issued before that date will be valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight February 1, 2024.

The SR category is subject to the same final action dates as the other employment fourth preference categories per applicable foreign state of chargeability, the bulletin states.

Details:

  • Visa Bulletin for January 2024.

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20. USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140

U.S. Citizenship and Immigration Services (USCIS) announced that as of December 15, 2023, it has begun transitioning the filing location for Form I-907, Request for Premium Processing, when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the service centers to appropriate USCIS lockboxes.

USCIS noted that this change does not apply to those filing Form I-140 concurrently with an associated application (such as Form I-485, I-765, or Form I-131). The agency said it will soon announce a filing location change for these forms, but as of now, such forms should be filed with the service centers as listed on the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker page.

USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

Details:

  • USCIS alert, including new lockbox addresses (Dec. 13, 2023).
  • USCIS Tips for Filing Forms by Mail (last reviewed/updated Dec. 13, 2023).

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21. OFLC Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment

The Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator has determined that current requirements for labor supply states (LSS) will remain in effect, with one modification: OFLC will no longer recognize North Carolina and Texas as traditional labor supply states for the state of Michigan.

DOS said that this LSS determination was effective December 7, 2023, for employers who have not commenced recruitment after receiving a Notice of Acceptance. The determination will remain valid until the OFLC Administrator publishes a new determination on the OFLC website.

OFLC explained that a 2022 H-2A Final Rule implemented a new process for the OFLC Administrator’s LSS determinations. LSS are additional states in which an employer’s job order will be circulated and, if appropriate, where additional recruitment may be required. Earlier this year, the OFLC Administrator solicited public input about LSS and related recruitment mechanisms. Determinations include particular areas of the United States in which a significant number of qualified workers have been identified and who, if recruited through additional positive employer recruitment activities, would be willing to make themselves available for work in the state.

Details:

  • OFLC announcement (Dec. 7, 2023).

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22. USCIS Releases Employment-Based Adjustment of Status FAQs

On December 8, 2023, U.S. Citizenship and Immigration Services (USCIS) released frequently asked questions (FAQs) about employment-based (EB) adjustment of status.

USCIS noted that the EB annual limit for fiscal year (FY) 2024 will be higher than was typical before the pandemic, but lower than it was in FYs 2021-2023. USCIS said it is dedicated to using as many available employment-based visas as possible in FY 2024, which ends on September 30, 2024.

Details:

  • USCIS FAQs (Dec. 8, 2023).

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23. State Dept. Issues Final Rule to Eliminate Informal Evaluations of Immigrant Visa Applicants’ Family Members

Effective January 8, 2024, the Department of State (DOS) is amending its immigrant visa regulations by removing the section allowing a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility.

DOS explained that the existing regulation was promulgated in 1952, when a consular officer could more readily assess a family member’s potential qualification for a visa without a formal visa application. “Assessing eligibility for an immigrant visa is now a more complex task and not one which can be accomplished accurately with an informal evaluation,” DOS said.

Details:

  • DOS Final Rule, 88 Fed. Reg. 85109 (Dec. 7, 2023).

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New Publications and Items of Interest

IER/HSI fact sheet on electronic completion of Form I-9. The Department of Justice’s (DOJ) Immigrant and Employee Rights Section (IER) has issued a fact sheet with the Department of Homeland Security’s Immigration and Customs Enforcement, Homeland Security Investigations. The fact sheet, How to Avoid Unlawful Discrimination and Other Form I-9 Violations When Using Commercial or Proprietary Programs to Electronically Complete the Form I-9 or Participate in E-Verify, discusses how employers can avoid violating the law when using such programs to complete the Form I-9 or E-Verify process. DOJ noted that several settlements “have involved employers that IER determined had committed discrimination related to their use of commercial or proprietary electronic Form I-9 programs.” These settlements “required employers to pay civil penalties, rehire workers with back pay, undergo training and monitoring, and change their employment eligibility verification practices to avoid future discrimination involving commercial or proprietary Form I-9 programs,” DOJ said, adding that “[u]nderstanding common mistakes that contribute to discrimination can help an employer when considering whether to use a commercial or proprietary program for completing the Form I-9 or participating in E-Verify.”

IER On-Demand Trainings. The Immigrant and Employee Rights (IER) Section of the Department of Justice’s Civil Rights Division is offering an on-demand training for employers on avoiding unlawful immigration-related employment discrimination. IER also provides an Employer Hotline at 1-800-255-8155.

Immigration agency X (formerly Twitter) accounts:

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

E-Verify webinar schedule: E-Verify released its calendar of webinars.

Alliance of Business Immigration Lawyers:

  • ABIL is available on X (formerly Twitter): @ABILImmigration

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ABIL Member / Firm News

Several ABIL members spoke at the Practising Law Institute’s 56th Annual Immigration and Naturalization Institute conference on November 28-29, 2023:

  • USCIS Update and Processing Trends – Practical Tips: Marketa Lindt
  • Permanent Labor Certification Program (PERM) – Current Adjudication Trends: Vincent Lau, Bob White (Masada Funai).
  • Ethical Issues for the Immigration Practitioner: Cyrus Mehta
  • Supreme Court Update and Analysis: Immigration: Ira Kurzban (Kurzban Kurzban Tetzeli and Pratt P.A.)

Klasko Immigration Law Partners announced new leadership changes at the firm. Starting January 1, 2024, the following leadership positions will be effective:

  • Ronald Klasko, Chairman. Mr. Klasko will continue to concentrate on the firm’s strategic growth and vision.
  • William (Bill) Stock, Managing Partner. Mr. Stock will continue to enhance the firm’s operations across all office locations.
  • Elise Fialkowski, Corporate Team Co-Chair
  • Michele Madera, Corporate Team Co-Chair. Together, Ms. Fialkowski and Ms. Madera will lead the Corporate Immigration Practice, strengthening existing client relationships and offerings for new clients.
  • Timothy (Tim) D’Arduini, Partner-In-Charge of DC Office. D’Arduini will lead the opening of the firm’s new office and expand its footprint into the D.C. metro area. He will be an essential part of the firm’s growth in the Mid-Atlantic region, and will play a key role in sustaining and enhancing the firm’s national and international capabilities. He also brings extensive compliance experience that will enhance the firm’s established worksite compliance practice area.

Mr. Mehta and Kaitlyn Box have co-authored a new blog post: Personal Conflicts of Interest Arising Out of the Israel-Hamas War.

Mr. Mehta and Jessica Paszko have co-authored several new blog posts: 2023 In Perspective From The Insightful Immigration Blog and Scripps v. Jaddou Offers Nuanced Interpretation of Final Merits Determination in Reversal of EB-1B Denial for Outstanding Researcher.

WR Immigration has posted several new blog entries: USCIS Increases H-1B Premium Processing Fee to $2,805, Alongside Fee Increases for Other Case Types; What Happened With the Form I-9? End-of-Year Recap; and Department of State Announces H-1B Visa Renewal Pilot Program in the U.S.

WR Immigration presented Chatting with Charlie: January 2024 Visa Bulletin Update on December 19, 2023. The presentation included a sneak peak of what’s in store for 2024 and an evaluation of the January 2024 Visa Bulletin.

Stephen Yale-Loehr was quoted by the Austin American-Statesman in Texas Democrats in Congress Say SB4 is Unconstitutional. Here’s What They’re Doing About It [available by subscription]. “They did it in Arizona,” Mr. Yale-Loehr said, referring to a 2012 Supreme Court case in which the Obama administration challenged a similar Arizona law. “[The Arizona law] was unconstitutional. It violated the federal government’s obligation to control immigration.”

Mr. Yale-Loehr was quoted by Newsday in Migrant Crisis: Politics Diminishes Likely Resolution, Analysts Say [available by subscription].

Mr. Yale-Loehr was quoted by Agence France-Presse in The Photo Intended to Prove That [Ukrainian President Volodymyr] Zelensky Received American Citizenship is a Digitally Forged Document (in Polish, with English translation available). He said, “A real naturalization certificate contains the person’s signature next to their photo. The certificate in the photo does not contain this. The alleged certificate also does not contain Zelensky’s signature at the top, but it should.” Mr. Yale-Loehr also noted that obtaining U.S. citizenship is a long process: “No person can simply obtain a certificate of naturalization. He must first go through the green card process, which means he must qualify for a green card based on asylum or sponsorship by an employer or close family member. This can take years. Even after receiving a green card, he has to wait 3-5 years before he can apply for naturalization.” In addition, Mr. Yale-Loehr said, he must have been physically present in the United States for at least three months immediately before applying for naturalization. “Zelensky did not meet these requirements,” he noted.

Mr. Yale-Loehr co-authored an op-ed in the Seattle Times, Outdated Green Card Laws Hurt Workers From India.

Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now.

Mr. Yale-Loehr was quoted by Bloomberg Law in Biden’s Immigration Agenda Faces Uncertain Fate in U.S. Courts. He said, “Federal courts are becoming the arbiters of immigration policy. That makes it very difficult for any administration to manage immigration because no matter what they try to do administratively, someone will sue them in federal court.”

Mr. Yale-Loehr was quoted by NY1.com in U.S. Senators Search for Border Policy Deal, as Experts Downplay Potential Short-Term Impact on NY’s Migrant Influx. He warned that detaining and quickly expelling migrants before asylum screenings would not solve the influx problem for cities like New York, which is grappling with a surge of migrants. “Probably not, because the crisis is larger than any one piece of legislation.” Mr. Yale-Loehr likened the proposed policy changes in Congress to a bandage over a gaping wound and said broader reforms are needed. He suggested that Congress consider ideas like making more work visas available. “We need to have a balanced approach. Yes, we need to have deterrence so that only those people who deserve to be in the United States can come. But we also need to find more legal pathways for people to enter legally in the United States, so that they are not tempted to enter illegally,” he said.

Mr. Yale-Loehr was quoted by CBS News in Texas Immigration Law Known as SB4, Allowing State to Arrest Migrants, Signed by Gov. Greg Abbott. He called SB4 “unprecedented,” noting that the Texas law is more sweeping in nature than SB 1070, a controversial 2010 Arizona law that penalized unauthorized immigrants in various ways, including by empowering state police to stop those believed to be in the country unlawfully. The U.S. Supreme Court partially struck down that Arizona law in 2012, concluding that states could not undermine federal immigration law. “It’s by far the most anti-immigrant bill that I have seen,” Mr. Yale-Loehr said of SB4.

Mr. Yale-Loehr was quoted by the Cornell Chronicle in Research Team Led by Dr. Gunisha Kaur Wins 2023 National Academy of Medicine Catalyst Prize. The article discusses Dr. Kaur’s winning research project, Digital Solutions to Reduce Maternal Morbidity and Mortality in Refugee Women, which aims to clinically train and validate a digital refugee health system. Dr. Kaur collaborated with Mr. Yale-Loehr and another professor on the project. “Many refugees and asylum seekers worry that if they seek medical help while pregnant, they might be deported,” Mr. Yale-Loehr said. “This new research builds on prior work Dr. Kaur and I did dispelling that concern. Our website Rights4Health informs immigrants about their eligibility for public benefits.”

A new podcast by the Bipartisan Policy Center featured discussion of a white paper, Immigration Reform: A Path Forward, co-authored by Mr. Yale-Loehr. He and his co-authors discussed their ideas for reforms to border management and asylum policy, worker visa programs, and DREAMer protections. While large, comprehensive immigration reform is unlikely to move forward in Congress soon, certain targeted reforms are both urgently needed and potentially achievable, they say.

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2024-01-07 09:42:362024-02-08 10:57:58ABIL Immigration Insider • January 7, 2024

ABIL Immigration Insider • December 3, 2023

December 03, 2023/in Immigration Insider /by ABIL

In this issue:

1. Three Important Cases Pending Before U.S. Supreme Court – Three important cases are pending before the U.S. Supreme Court. According to observers, at stake are the legitimacy of the current U.S. immigration court system and a longstanding precedent decision.

2. DOS Proposes Updates to Au Pair Exchange Visitor Program – The Department of State proposes to amend the Exchange Visitor Program regulations governing the au pair category to “clarify and modernize” the program.

3. ICE Launches Online Portal for Noncitizens in Removal Proceedings – U.S. Immigration and Customs Enforcement (ICE) has launched the ICE Portal, a public-facing website that centralizes communications between noncitizens who have been placed in removal proceedings and the federal government.

4. CBP Will Temporarily Close Arizona Border Crossing – Beginning Monday, December 4, 2023, U.S. Customs and Border Protection’s Office of Field Operations will temporarily suspend operations at the Lukeville, Arizona, port of entry.

5. USCIS Expands myProgress to Forms I-485 and I-821 – U.S. Citizenship and Immigration Services (USCIS) announced that it is expanding myProgress (formerly known as personalized processing times) to Form I-821, Application for Temporary Protected Status, and Form I-485, Application to Register Permanent Residence or Adjust Status. myProgress will initially only be available for family-based or Afghan special immigrant I-485 applicants.

6. DOJ Reaches Immigration-Related Discrimination Settlement Agreement With Tennessee Trucking Companies – The Department of Justice has secured a $700,000 agreement with two transportation logistics and long-haul trucking companies headquartered in Chattanooga, Tennessee. The agreement resolves DOJ’s determination that the companies violated the anti-discrimination provision of the Immigration and Nationality Act by routinely discriminating against non-U.S. citizen workers when checking their permission to work in the United States.

7. Global Entry Program Expands to PortMiami Seaport – As of December 1, 2023, PortMiami is the first seaport to host a Global Entry Enrollment Center to assist the traveling public with completing new and renewal applications for the “trusted traveler” program.

8. DHS Increases FY 2024 Limit on H-2B Nonagricultural Workers and Provides Portability – In consultation with the Department of Labor, the Department of Homeland Security is increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2024. 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

9. DOJ Reaches Several Immigration-Related Discrimination Settlement Agreements – Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., DOJ has settled immigration-related discrimination cases with a New York City health care system and a staffing agency with offices nationwide.

10. Federal Government Shutdown Averted for Now – As many know, before a deadline of September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. A shutdown is still possible after November 17.

11. Apple Settles Citizenship Discrimination Allegations With $25 Million ‘Landmark’ Agreement – Under the agreement, Apple must pay up to $25 million in back pay and civil penalties, which the Department of Justice said was the largest award that it has ever recovered under the antidiscrimination provision of the Immigration and Nationality Act

12. DHS Announces Eligible Countries for H-2A and H-2B Programs; Bolivia Added – The Department of Homeland Security, in consultation with the Department of State, announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs next year. Each country’s designation is valid until November 8, 2024. Bolivia has been added to the list of countries eligible to participate in both programs.

13. USCIS to Move Filing Location for Premium Processing Requests Filed With Immigrant Petition for Alien Workers – On November 13, 2023, U.S. Citizenship and Immigration Services (USCIS) will begin transitioning the filing location for Form I-907, Request for Premium Processing, when filed with Form I-140, Immigrant Petition for Alien Workers, from the service centers to the USCIS lockbox.

14. December Visa Bulletin Includes Reminder About Expiring Non-Minister Religious Workers Category – No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight November 16, 2023, unless Congress extends the program.

15. Potomac Service Center Will No Longer Accept Paper Responses – Starting November 13, 2023, the Potomac Service Center will no longer accept mailed correspondence. To avoid processing delays, U.S. Citizenship and Immigration Services (USCIS) said, applicants and their representatives should instead upload their responses to their USCIS online accounts (for receipt notices that start with IOE-) or mail them to the Texas Service Center.

16. ABIL Global: Spain – Spain has partially implemented European Union Directive 2021/1883 concerning the conditions of entry and residence for highly qualified employment of third-country nationals.

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 2023


1. Three Important Cases Pending Before U.S. Supreme Court

Three important cases are pending before the U.S. Supreme Court. According to observers, at stake are the legitimacy of the current U.S. immigration court system and the longstanding precedent decision, Chevron v. Natural Resources Defense Council, and its standard for deference to federal administrative agency decisions. The cases include:

  • Securities and Exchange Commission v. Jarkesy, which involves two questions: (1) whether the SEC’s choice of enforcement proceedings violates the nondelegation doctrine, and (2) whether the for-cause removal of administrative law judges (ALJs) violates the U.S. Constitution. Both issues are important for immigration lawyers. For example, observers note, a ruling in favor of Mr. Jarkesy could result in a finding that immigration judges do not have the authority to adjudicate the cases they are assigned. Oral argument in Jarkesy was held on November 29, 2023.
  • Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, which include more expansive challenges to administrative law. Among other issues, the Supreme Court will consider whether to limit or overrule the Court’s 1984 precedent decision in Chevron v. Natural Resources Defense Council. Overruling Chevron would have an impact on federal court challenges to agency decisions from U.S. Citizenship and Immigration Services, the Department of Labor, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection. Oral argument in Relentless and Loper will be held in January.

Details:

  • “Potential Game-Changer Cases for Immigration Law at SCOTUS,” thinkImmigration (Nov. 29, 2023).

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2. DOS Proposes Updates to Au Pair Exchange Visitor Program

The Department of State (DOS) has issued a proposed rule to amend the Exchange Visitor Program regulations governing the au pair category to “clarify and modernize” the program. Among other things, the proposed rule would restructure the child care and educational components, replace the EduCare program with a part-time option, enhance au pair and host family orientation requirements, formalize standard operating procedures for rematching au pairs with new host families, and propose new requirements to strengthen au pair protections.

DOS said it encourages public comment on the proposed rule, particularly on restructuring the au pair program and calculating weekly compensation. DOS initially said it would accept public comments on the proposed rule until December 29, 2023, but then extended the deadline to January 28, 2024.

Details:

  • DOS notice of proposed rulemaking, 88 Fed. Reg. 74071 (Oct. 30, 2023).
  • DOS extension of comment period, 88 Fed. Reg. 83511 (Nov. 30, 2023).

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3. ICE Launches Online Portal for Noncitizens in Removal Proceedings

On November 30, 2023, U.S. Immigration and Customs Enforcement (ICE) launched the ICE Portal, a public-facing website that centralizes communications between noncitizens who have been placed in removal proceedings and the federal government. On the portal, noncitizens can schedule appointments, update their addresses, and check hearing information in a consolidated location.

Specifically, the portal incorporates previous online capabilities like ICE’s Appointment Scheduler and change-of-address tool, and allows noncitizens to look up information regarding upcoming immigration court hearings before the Executive Office for Immigration Review. It also includes information on finding a lawyer, including links to pro bono legal service providers and other resources; working in the United States; and finding social support.

Details:

  • ICE statement (Nov. 30, 2023).

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4. CBP Will Temporarily Close Arizona Border Crossing

U.S. Customs and Border Protection (CBP) announced that beginning Monday, December 4, 2023, CBP’s Office of Field Operations will temporarily suspend operations in Lukeville, Arizona. Both northbound and southbound pedestrian and vehicle traffic at the Lukeville port of entry will be suspended until further notice. Travelers can cross into or out of the United States through either the Nogales Port of Entry in Nogales, Arizona, or the San Luis Port of Entry in San Luis, Arizona.

CBP said the temporary closure was in response to “increased levels of migrant encounters at the Southwest Border, fueled by smugglers peddling disinformation to prey on vulnerable individuals, CBP is surging all available resources to expeditiously and safely process migrants. CBP will continue to prioritize our border security mission as necessary in response to this evolving situation.”

Details:

  • CBP statement (Dec. 1, 2023).
  • CBP Border Wait Times.

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5. USCIS Expands myProgress to Forms I-485 and I-821

On November 21, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it is expanding myProgress (formerly known as personalized processing times) to Form I-821, Application for Temporary Protected Status, and Form I-485, Application to Register Permanent Residence or Adjust Status. myProgress will initially only be available for family-based or Afghan special immigrant I-485 applicants.

USCIS explained that myProgress “provides applicants with access, in their online account, to personalized estimates of their wait time for major milestones and actions on their case, including their final case decision. While estimates are based on case type and historical patterns, they are not a guarantee of timing, and cannot take into consideration all possible unique application processing factors.” Milestones include confirmation that the application was received, movement of the application through pre-processing and adjudicative steps, and the case decision.

In addition to Form I-485 and Form I-821, myProgress is available for applicants with a USCIS online account who file Form I-765, Application for Employment Authorization; Form I-131, Application for Travel Document; Form N-400, Application for Naturalization; Form I-90, Application to Replace Permanent Resident Card; or Form I-130, Petition for Alien Relative.

Applicants still need to visit the public Check Case Processing Times webpage to determine whether they are eligible to file an Outside of Normal Processing Times service request, USCIS noted.

Details:

  • USCIS alert (Nov. 21, 2023).

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6. DOJ Reaches Immigration-Related Discrimination Settlement Agreement With Tennessee Trucking Companies

On November 20, 2023, the Department of Justice (DOJ) announced that it secured a $700,000 agreement with Covenant Transport Inc., and an affiliated entity, Transport Management Services LLC, two transportation logistics and long-haul trucking companies headquartered in Chattanooga, Tennessee. The agreement resolves the department’s determination that the companies violated the anti-discrimination provision of the Immigration and Nationality Act (INA) by routinely discriminating against non-U.S. citizen workers when checking their permission to work in the United States.

DOJ’s investigation found that from January 2020 through August 2022, Covenant and Transport routinely discriminated against non-U.S. citizens by requiring lawful permanent residents to show their permanent resident cards (green cards) and by requiring other non-U.S. citizens to show documents related to their immigration status. DOJ noted that federal law ” allows all workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work.”

Under the terms of the agreement, Covenant and Transport will pay $700,000 in civil penalties to the United States, train their employees on the INA’s anti-discrimination requirements, revise their employment policies, and be subject to monitoring by DOJ.

Details:

  • Settlement Agreement with Covenant and Transport.
  • DOJ Press Release (Nov. 20, 2023).

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7. Global Entry Program Expands to PortMiami Seaport

As of December 1, 2023, PortMiami is the first seaport to host a Global Entry Enrollment Center to assist the traveling public with completing new and renewal applications for the “trusted traveler” program.

U.S. Customs and Border Protection (CBP) officers staffing PortMiami Global Entry Enrollment Center will help candidates complete their application processing and their conditionally approved, in-person interviews as the final step in the membership enrollment process. Global Entry includes TSA PreCheck eligibility, which expedites screening through Transportation Security Administration (TSA) checkpoints at participating airports.

CBP Global Entry continues to expand to foreign partner countries.

Details:

  • CBP media release (Nov. 24, 2023).
  • CBP Global Entry enrollment page.
  • CBP Trusted Traveler Programs page.
  • TSA PreCheck

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8. DHS Increases FY 2024 Limit on H-2B Nonagricultural Workers and Provides Portability

Effective November 17, 2023, in consultation with the Department of Labor (DOL), the Department of Homeland Security (DHS) has increased the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year (FY) 2024. 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica. The visas will be available “only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer.” DHS is also providing temporary portability flexibility, explained in more detail in the temporary rule.

The supplemental visas will be distributed in several allocations and timeframes, which are summarized in the temporary rule. DHS said it will not accept any H-2B petitions under these allocations after September 16, 2024, and will not approve any such H-2B petitions after September 30, 2024. The provisions related to portability are available only to petitioners and H-2B nonimmigrant workers initiating employment through the end of January 24, 2025.

DOL’s Office of Foreign Labor Certification is accepting comments on the temporary rule until January 16, 2024.

Details:

  • DOL/DHS temporary rule, 88 Fed. Reg. 80394 (Nov. 17, 2023).

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9. DOJ Reaches Several Immigration-Related Discrimination Settlement Agreements

Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., DOJ has settled immigration-related discrimination cases with a New York City health care system and a staffing agency with offices nationwide. Below are highlights of the settlements:

NYC Health and Hospitals Corporation. On November 16, 2023, DOJ announced a settlement agreement with New York City Health and Hospitals Corporation (NYCHH), which provides health care services to more than a million New Yorkers. The agreement resolves DOJ’s determination that NYCHH violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it rejected a worker’s valid employment authorization document (EAD) based on the worker’s national origin.

The worker’s EAD had been extended automatically under Temporary Protected Status (TPS). DOJ determined that NYCHH rejected the valid document and delayed the onboarding of the worker based on its incorrect assumption that the worker’s country of birth listed on her EAD had to be the same as the country designated for TPS. DOJ pointed out that Federal Register notices that automatically extend a TPS worker’s permission to work explain that the worker does not have to show additional documentation or prove citizenship status, and that the country of birth listed on the worker’s documentation does not have to match the TPS-designated country.

Under the terms of the agreement, NYCHH will pay back pay to the affected worker and a civil penalty to the United States, train its staff on the anti-discrimination provision, review and revise its employment policies and training materials, and be subject to departmental monitoring for three years.

Kforce Inc. On November 15, 2023, DOJ announced a settlement agreement with Kforce Inc. (Kforce), a staffing agency with 36 offices across the United States. The agreement resolves DOJ’s determination that Kforce discriminated against non-U.S. citizens with permission to work in the United States and excluded them from job opportunities based on their citizenship status.

DOJ’s investigation determined that from at least March 1, 2019, to February 28, 2022, Kforce distributed job advertisements that contained unlawful hiring restrictions based on citizenship status or otherwise screened out candidates based on their citizenship status.

Under the terms of the settlement, Kforce will pay $690,000 in civil penalties to the United States and set aside $230,000 to compensate affected workers. The agreement also requires Kforce to train its personnel on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

Details:

  • DOJ release re NYC Health Care System settlement (Nov. 16, 2023).
  • Settlement Agreement with NYC Health Care System (Nov. 16, 2023).
  • DOJ release re Kforce Inc. (Nov. 15, 2023).
  • Settlement Agreement with Kforce Inc. (Nov. 15, 2023).

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10. Federal Government Shutdown Averted for Now

As many know, before a deadline of September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. A shutdown was possible after November 17, but it was averted. Below are highlights of how immigration-related services could be affected if a shutdown happens in the future.

Many immigrant and nonimmigrant visa applications and petitions would not be severely affected because they are fee-based. “Nonessential” visa processing, such as tourist visas, could be slowed or suspended abroad, however, which could increase backlogs. Consular services located in federal buildings could be affected if those buildings are closed. Applications and petitions that depend on action by the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) would be affected, including those requiring a Labor Condition Application (e.g., H-1B, H-1B1, EB-3) and PERM employment-based immigrant petitions. Other OFLC functions could also cease during a shutdown, including processing of temporary labor certifications and prevailing wage determinations. Some programs that rely on appropriations could be suspended temporarily, such as the E-Verify program and Conrad 30 J-1 doctors.

A Department of Homeland Security (DHS) fact sheet notes that if there is a shutdown, nearly three in four DHS employees—more than 185,000 people—would be required to continue working through the shutdown without receiving a paycheck during that time. Those working without pay would include law enforcement officers, analysts, investigators, and disaster response officials. DHS said a shutdown would result in, among other things:

  • More than 19,000 unpaid U.S. Border Patrol agents and 25,000 unpaid Office of Field Operations officers, including CBP agents and officers working at more than 300 ports of entry and guarding more than 6,000 miles of border.
  • Stopped funding to border communities and interior cities, including funding to cover costs that border and interior communities incur associated with sheltering migrants in their cities. “Recipients may be unable to draw down on a portion of the funds, and no new awards will be made under a shutdown,” DHS said.
  • Short- and long-term effects on hiring and onboarding, including a pause in processing of nearly 2,500 tentative job offers to DHS candidates for employment.

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

Details:

  • Procedures Relating to a Lapse in Appropriations, DHS (Sept. 22, 2023).
  • OMB Agency Contingency Plans.
  • What Happens to Immigration if U.S. Government Shuts Down?, Voice of America (Sept. 28, 2023).
  • White House press release (Sept. 30, 2023).
  • Biden statement (Sept. 30, 2023).
  • R. 5860 (Sept. 30, 2023).

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11. Apple Settles Citizenship Discrimination Allegations With $25 Million ‘Landmark’ Agreement

On November 9, 2023, the Department of Justice (DOJ) announced a landmark agreement with Apple Inc. (Apple) to resolve allegations that the company illegally discriminated in hiring and recruitment against U.S. citizens and certain non-U.S. citizens whose permission to live in and work in the United States does not expire.

Under the agreement, Apple must pay up to $25 million in back pay and civil penalties, which DOJ said was the largest award that it has ever recovered under the antidiscrimination provision of the Immigration and Nationality Act (INA).

The settlement agreement relates to Apple’s recruitment for positions falling under the permanent labor certification program (PERM). Specifically, DOJ’s investigation found that Apple did not advertise positions it sought to fill through the PERM program on its external job website, even though its standard practice was to post other job positions on that website. It also required all PERM position applicants to mail paper applications even though the company permitted electronic applications for other positions. In some instances, Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically instead of being mailed in on paper. DOJ said that these “less effective recruitment procedures nearly always resulted in few or no applications to PERM positions from applicants whose permission to work does not expire.”

Pursuant to the $25 million agreement, Apple must pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible discrimination victims. The agreement also requires Apple to ensure that its recruitment for PERM positions more closely matches its standard recruitment practices. Under the agreement, Apple must conduct more expansive recruitment for all PERM positions, including posting PERM positions on its external job website, accepting electronic applications, and enabling applicants for PERM positions to be searchable in its applicant tracking system. DOJ said that Apple implemented some of these measures after the agency opened its investigation. Additionally, Apple must train its employees on the INA’s antidiscrimination requirements and be subject to departmental monitoring for the three-year period of the agreement.

Details:

  • DOJ press release (Nov. 9, 2023).
  • Settlement Agreement between Apple and DOJ (Nov. 2023).
  • Attachment A – Back Pay Funds Claim Process.

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12. DHS Announces Eligible Countries for H-2A and H-2B Programs; Bolivia Added

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. Each country’s designation is valid until November 8, 2024. Bolivia has been added to the list of countries eligible to participate in both programs.

DHS said the notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice (November 9, 2023). Similarly, the notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved prior to the date of publication. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B, DHS said.

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 in the H-2B program.

Details:

  • DHS alert (Nov. 8, 2023).
  • DHS notice, 88 Fed. Reg. 77343 (Nov. 9, 2023).

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13. USCIS to Move Filing Location for Premium Processing Requests Filed With Immigrant Petition for Alien Workers

U.S. Citizenship and Immigration Services (USCIS) announced that it began transitioning the filing location for Form I-907, Request for Premium Processing, when filed with Form I-140, Immigrant Petition for Alien Workers, from the service centers to the USCIS lockbox on November 13, 2023.

This change does not apply to those who are filing Form I-907 for a currently pending Form I-140 or to those who are filing Form I-140 with an associated application (such as Form I-765, Form I-131, or Form I-485). USCIS said it will soon announce filing location changes for those forms, but for the time being, they should continue to be filed with the service centers.

Those mailing Form I-140 and Form I-907 together to USCIS should use the addresses listed in the USCIS alert. Starting December 13, 2023, USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

Details:

  • DHS alert (Nov. 9, 2023).

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14. December Visa Bulletin Includes Reminder About Expiring Non-Minister Religious Workers Category

The Department of State’s Visa Bulletin for December 2023 includes a reminder that the non-minister special immigrant program expired on November 17, 2023. No SR visas may be issued overseas, or final action taken on adjustment of status cases, unless Congress extends the program. Visas issued before that date were valid only until November 16, 2023, and all individuals seeking admission in the non-minister special immigrant category must have been admitted into the United States by November 16, 2023.

The bulletin notes that the SR category is listed as “Unavailable” for all countries for December. If Congress extends the category, the bulletin says, it is likely that it will become available immediately. If extended, the category will be subject to the same final action dates as the other employment fourth preference categories per applicable foreign state of chargeability.

Details:

  • DOS Visa Bulletin for December 2023.

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15. Potomac Service Center Will No Longer Accept Paper Responses

As of November 13, 2023, the Potomac Service Center (PSC) is no longer accepting mailed correspondence. All mailed correspondence intended for cases processed by the PSC must be mailed to the Texas Service Center (TSC), unless otherwise noted.

To avoid processing delays, USCIS said, applicants and their representatives should instead upload their responses to their USCIS online accounts (for receipt notices that start with IOE-) or mail them to the Texas Service Center at:

USCIS Texas Service Center
Attn: Digital RFE
6046 N Belt Line Rd. STE 114
Irving, TX 75038

USCIS strongly encourages use of an USCIS online account and self-service tools to upload responses for all online cases.

Details:

  • USCIS alert (Nov. 6, 2023).

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16. ABIL Global: Spain

Spain has partially implemented European Union (EU) Directive 2021/1883 concerning the conditions of entry and residence for highly qualified employment of third-country nationals.

This implementation is being carried out through amendments to Spain’s Entrepreneurs Act 14/2013, establishing two schemes for highly qualified professionals (HQPs) within the Large Companies Unit. The most substantial features are:

National Residence Permit for Highly Qualified Professionals

This category already exists, but the permit’s requirements have been updated to include individuals with qualifications equivalent to at least level 1 of the Spanish Qualifications Framework or with professional experience of at least three years comparable to the required qualification. The labor market test does not apply.

The permit validity aligns with the employment contract duration plus an additional three months, with a maximum period of three years.

Residence Permit for Highly Qualified Professionals—EU Blue Card

This category is for third-country nationals with higher education qualifications of at least three years (equivalent to level 2 of the Spanish Qualifications Framework or level 6 of the European Qualifications Framework) or at least five years of relevant professional experience. For Information and communications technology managers and professionals, the required experience is reduced to three years within seven years before applying for an EU Blue Card. The labor market test does not apply.

The salary threshold ranges between 1.0 and 1.6 times the average gross annual salary, with a possibility of applying at 80 percent of the threshold under specific circumstances.

The permit validity aligns with the employment contract duration plus an additional three months, with a maximum period of three years.

Holders of an EU Blue Card from another Member State can stay up to 90 days in any 180-day period in Spain without authorization. To stay longer, they must apply for the EU Blue Card in Spain, with a streamlined process allowing them to start working upon application submission.

Dependents of EU Blue Card holders can apply for a residence permit in Spain unless they hold international protection status in Spain.

The implementation provides pathways for highly qualified professionals to work and reside in Spain, with adjustments made to existing permits and the introduction of the EU Blue Card system to facilitate mobility within the EU for qualified workers.

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New Publications and Items of Interest

Immigration agency X (formerly Twitter) accounts:

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

E-Verify webinar schedule: E-Verify released its calendar of webinars.

Alliance of Business Immigration Lawyers:

  • ABIL is available on X (formerly Twitter): @ABILImmigration

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ABIL Member / Firm News

Dagmar Butte and Cyrus Mehta were quoted by Forbes in Apple Settles $25 Million DOJ Immigrant Lawsuit, Regardless of PERM. Ms. Butte said, “The Apple settlement highlights the disconnect between real-world recruitment practices and the artificial nature of the mandated recruitment steps under PERM. This is especially true when you consider that most modern recruitment practices did not exist when PERM was rolled out in 2005.” She noted that even if the PERM recruitment structure is an invention of the Department of Labor, the underlying good-faith test of the labor market seems to require treating PERM positions no less favorably in the breadth of recruitment than regular positions. “I tell my clients to remember that this system was designed to protect U.S. workers, and not to facilitate hiring foreign nationals and they should view recruitment from that perspective. I also always ask them to tell me how they would recruit for the job if PERM were not a part of the process and make that part of the optional steps for professional positions.” Mr. Mehta said, “The safest course is for employers to hew as closely as possible to their non-PERM recruitment practices. Thus, while it is lawful for employers to ask applicants to send resumes only by postal mail under the PERM regulations, if the employer otherwise allows applicants to send their resumes electronically, the employer should be consistent and require applicants even responding to PERM recruitment to send their resumes electronically.” He said employers are caught between the conflicting requirements of two federal agencies.

Avi Gomberg was listed in Who’s Who Legal Canada 2023 and recognized as a Thought Leader and Global Leader for Corporate Immigration.

Charles Kuck spoke with the Atlanta Journal-Constitution and WABE News in Listen: Why Were Videos Leaked in Fulton Election Case? (available by subscription).

Mr. Mehta and Kaitlyn Box were cited by Forbes in SpaceX Court Win Could End DOJ Immigrant Lawsuits. The article cited their blog in explaining that “[t]he Appointments-Clause challenge by Space X, if not overturned by the Fifth Circuit or Supreme Court, could provide a pathway for other employers to fend off investigations and lawsuits by the [Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division] when they conduct recruitment under the foreign labor certification program.”

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: SpaceX’s Constitutional Challenge May Nix DOJ’s Ability to Bring Discrimination Claims Against Employers under Section 274B of the Immigration and Nationality Act, Including in the Labor Certification Context and Will the Immigration Provisions in the AI EO Bring About Meaningful Change Or Be Mere Window Dressing?

Mr. Mehta and Jessica Paszko co-authored a new blog post: How Prosecutorial Discretion Saved Our Client.

Mr. Mehta was quoted by Bloomberg Law’s Daily Labor Report in Apple’s Hiring Bias Case Reveals Big Tech Foreign Worker Dilemma. He said it’s hard to know how much of an enforcement focus the PERM process will receive beyond the two tech giants. He noted, however, that a recent court victory for Elon Musk’s SpaceX may open a pathway for other companies to challenge Department of Justice (DOJ) investigations. “One wonders why Apple and Facebook copped a settlement rather than contesting the lawsuit like SpaceX did,” Mr. Mehta said.

Mr. Mehta received the Corporate Immigration Lawyer of the Year award from Who’s Who Legal (WWL) on November 9, 2023, at a ceremony in London, England. He is also a WWL Global Elite Thought Leader.

WR Immigration has published a new blog post: Time to Feast: EB-5 Visa Outlook in FY 2024.

WR Immigration will host a webinar, December Investor Visa Outlook, as part of its “Chatting With Charlie” series.

Stephen Yale-Loehr was quoted by the Cornell Daily Sun in Dyson Students’ “Pathways of Belonging” Initiative Partners With Local Human Rights Office. The article discusses a panel held at Cornell on the immigration process and its effects on migrants. The article notes that during the panel discussion, Mr. Yale-Loehr discussed the broken immigration system and the challenges immigrants face as they try to find a sense of belonging amid their journey toward U.S. citizenship. He highlighted the overwhelming volume of pending cases, exacerbated by a shortage of immigration judges. Mr. Yale-Loehr said the backlog subjects many immigrants to years of waiting for crucial decisions.

Mr. Yale-Loehr was quoted by the New York Times in They Fled Climate Chaos. Asylum Law Made Decades Ago Might Not Help (available by subscription). He said, “The general public is becoming less accepting of asylum as a remedy because there are so many people being creative in applying for it. When people think of asylum, they imagine a government official pointing a gun at someone’s head. They don’t think of crop failures or sea levels rising because of climate change.”

Mr. Yale-Loehr was quoted by The Guardian in Abbott Slated to Sign Law Allowing Arrest of Anyone Crossing Texas Border Without Papers. He said, “Part of the reason for passing this law is to send a message to the Biden administration that Texas is going to go as far as it dares, and they don’t care whether they lose in court, they’re making a political statement.” Mr. Yale-Loehr said that a legal challenge against the Texas law, SB4, would probably succeed, but court battles can take several years. He said he is especially concerned about the new law’s interim effect on asylum seekers.

Mr. Yale-Loehr was quoted by the New York Daily News in Hochul Says NY Will Not Give State Work Permits to Migrants: “I’m Constrained by the Law.” He said that no state has ever tried to supersede the federal government’s role as the dispenser of work papers. He noted that the approach Hochul described would have invited long-running litigation and would not have helped the state in the short-term.

Mr. Yale-Loehr was quoted by AM New York in Tales of Survival: NYC Migrants Face Bureaucratic Challenges to Gain Work Visas After a Long Journey to America. “It seems to be hit or miss as to who gets parole versus being told just to file an asylum application,” he said. He noted, among other things, that migrants are confronted with a slew of legal obstacles when trying to avoid deportation and build a life in the United States. “There are so many challenges they have. Just on the legal front, understanding the work permit complexities, depending on what status they are. Trying to find an immigration lawyer or other advocate who can help them navigate this process. While the number of applications filed by a clinic in Lower Manhattan is impressive, he said, New York City needs to be more consistent in its efforts to help migrants apply for work permits, and it needs to step up its outreach so a greater number of newcomers are aware of the legal help available to them: “We need to have more money, and train more paralegals and more lawyers to be able to do this on an ongoing basis.”

Mr. Yale-Loehr was quoted by Univision in Academics Urge Congress to Enact Specific Immigration Reforms as Soon as Possible. The article discusses a white paper, Immigration Reform: A Path Forward, which Mr. Yale-Loehr co-authored. “We designed our proposals to address three areas where we see public support and support from a bipartisan Congress. Even in a gridlocked Congress, these targeted immigration reforms can be implemented,” he said. The article is in Spanish with English translation available.

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2023-12-03 09:51:142024-01-08 11:53:16ABIL Immigration Insider • December 3, 2023

ABIL Immigration Insider • November 5, 2023

November 05, 2023/in Immigration Insider /by ABIL

In this issue:

1. Executive Order on Artificial Intelligence Includes Immigration-Related Provisions – On October 30, 2023, President Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5 of the order, “Promoting Innovation and Competition,” includes various immigration-related provisions.

2. DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2024 – On November 3, 2023, the Department of Homeland Security, in consultation with the Department of Labor, announced that it will make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024 via a temporary final rule. This is on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year.

3. Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension – U.S. Citizenship and Immigration Services announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents while their renewal applications are pending.

4. Texas Service Center Is New Filing Location for H-2A, H-2B, and Certain CNMI Petitions as of November 1 – Beginning November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.

5. USCIS Updates Guidance on EB-5 Regional Center Program – U.S. Citizenship and Immigration Services is updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.

6. USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants – The update adds information about how U.S. Citizenship and Immigration Services determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates.

7. USCIS Allows Additional 30 Days for Comments on E-Verify NextGen and Revisions to E-Verify – U.S. Citizenship and Immigration Services is allowing 30 additional days for public comments on several information collection notices related to E-Verify.

8. Reminder to Employers: Use New I-9 Form as of November 1 – The Citizenship and Immigration Services (CIS) Ombudsman emailed a reminder to employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.

9. State Dept. Intends to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Applicants – The Department of State intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants, beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and Budget for review.

10. DHS Plans to Amend H-1B Regulations Governing Specialty Occupation Workers – The Department of Homeland Security plans to amend its H-1B regulations “governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.”

11. Visa-Free Travel to United States Is Now Available for Israelis – The Department of Homeland Security announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program. Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s Electronic System for Travel Authorization.

12. USCIS Clarifies Guidance on L-1 Petitions for Intracompany Transferees Filed by Sole Proprietorships and on Blanket L Petitions – U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. The update also clarifies guidance regarding blanket L petitions.

13. DHS Announces Family Reunification Process for Ecuador – The Department of Homeland Security announced a new family reunification parole process for certain nationals of Ecuador that also allows for work authorization.

14. USCIS Reaches H-2B Cap for Temporary Nonagricultural Workers for First Half of FY 2024 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2024. October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.

15. USCIS Provides Guidance on Interpretation of EB-5 Program Changes – U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022, specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.

16. Visa Bulletin for November Includes Reminder About Religious Workers Category Expiration – The Department of State’s Visa Bulletin for November 2023 includes a reminder that the non-minister special immigrant program expires on November 17, 2023.

17. Temporary Need Exemption Extended for Certain Guam and CNMI H-2B Workers – U.S. Citizenship and Immigration Services issued policy guidance reflecting the extension of the exemption from the temporary need requirement for petitions for temporary nonagricultural H-2B nonimmigrant workers on Guam and in the Commonwealth of the Northern Mariana Islands through December 30, 2024.

18. DHS Announces Relief for Cameroonian F-1 Nonimmigrant Students – Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status.

19. USCIS Launches New Online Change-of-Address Tool – U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.

20. DOS Publishes DV-2025 Instructions, List of Countries – On October 3, 2023, the Department of State published instructions and eligibility requirements for the Diversity Visa (DV) program for fiscal year 2025 (DV-2025). The online registration period for the DV-2025 diversity visa program concludes on Tuesday, November 7, 2023, at 12 noon ET.

21. DOS Restores Previous Version of Regulation Governing Public Charge Grounds of Visa Ineligibility – The Department of State announced that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.

22. U.S. to Resume Direct Repatriation of Venezuelans Without Authorization – The Department of Homeland Security announced that it “will resume direct repatriations of Venezuelan nationals who cross our border unlawfully and do not establish a legal basis to remain.”

23. DHS to Extend and Redesignate Cameroon for Temporary Protected Status – The Department of Homeland Security will extend and redesignate Cameroon for Temporary Protected Status for 18 months, beginning on December 8, 2023, and ending on June 7, 2025.

24. DOS Announces U.S. Passport Processing Times, Tips – The Department of State announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks, not including mailing time.

25. ABIL Global: Austria – In a groundbreaking judgment, the Vienna Administrative Court recently held that descendants of former concentration camp inmates and forced laborers who were nationals of successor states of the Austrian-Hungarian Empire (e.g., Hungary, Czechoslovakia, Poland, Romania, Yugoslavia), were deported to Austria during WWII, and remained in Austria after the liberation of concentration camps on Austrian territory in spring 1945, if only for a period of a few months, are entitled to Austrian citizenship in privileged ancestry proceedings if there are indicators that they tried to establish a center of vital interests (or main domicile) in post-war Austria.

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 – November 2023


1. Executive Order on Artificial Intelligence Includes Immigration-Related Provisions

On October 30, 2023, President Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5 of the order, “Promoting Innovation and Competition,” includes various immigration-related provisions. For example, the order:

  • Calls for the Secretaries of State and Homeland Security to streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work on, study, or conduct research in artificial intelligence (AI) or other critical and emerging technologies; and facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies;
  • Calls for the Secretary of State to consider initiating a rulemaking to establish new criteria to designate countries and skills on the Department of State’s exchange visitor skills list as it relates to the 2-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States;
  • Calls for the Secretary of State to consider implementing a domestic visa renewal program to facilitate the ability of qualified applicants, including highly skilled talent in AI and critical and emerging technologies, to continue their work in the United States without unnecessary interruption;
  • Calls for the Secretary of State to establish a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and to establish and increase connections with that talent to educate them on opportunities and resources for research and employment in the United States, including overseas educational components to inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications;
  • Calls for the Secretary of Homeland Security to review and initiate any policy changes the Secretary determines necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies, using the International Entrepreneur Rule; and
  • Calls for the Secretary of Homeland Security to continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies, and consider a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.

Details:

  • Executive Order (Oct. 30, 2023).
  • White House statement (Oct. 31, 2023).
  • Making AI Work for the American People (talent search portal and other links).

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2. DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2024

On November 3, 2023, the Department of Homeland Security (DHS), in consultation with the Department of Labor, announced that it will make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024 via a temporary final rule. This is on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year. DHS said the supplemental visa allocation “will help address the need for seasonal or other temporary workers in areas where too few U.S. workers are available.”

The H-2B supplemental is expected to include an allocation of 20,000 visas to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, DHS said. In addition, 44,716 supplemental visas will be available to 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 these 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,” DHS said.

Details:

  • DHS news release (Nov. 3, 2023).

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3. Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension

U.S. Citizenship and Immigration Services (USCIS) announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents (EADs) while their renewal applications are pending. As of October 27, 2023, those who are eligible “will receive 180-day extensions in accordance with existing regulations, including those who have applied for or have received Temporary Protected Status or asylum,” USCIS said.

The agency noted that in May 2022, it announced a temporary final rule (TFR) that increased the automatic extension period for EADs available to certain EAD renewal applicants from up to 180 days to up to 540 days. This new change is not retroactive, USCIS said; “all previous up to 540-day automatic extensions will remain in place.”

USCIS said it is determining whether there is a need for a new regulatory action similar to the May 2022 TFR.

As announced in the 2022 TFR, automatic extensions of employment authorization and EAD validity will be the original up to 180-day period for eligible applicants who timely file a Form I-765 renewal application on or after October 27, 2023. For those who received an increased automatic extension period under the TFR, the increased automatic extension will end when they receive a final decision on their renewal application or when the up to 540-day period expires (counted from the expiration date of the employment authorization and/or their EAD), whichever comes earlier.

USCIS also recently published a Policy Manual update increasing the maximum EAD validity period to five years for initial and renewal applications approved on or after September 27, 2023, for the following categories:

  • Certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, or granted asylum, and recipients of withholding of removal; and
  • Certain noncitizens who must apply for employment authorization, including applicants for asylum and withholding of removal, adjustment of status, and suspension of deportation or cancellation of removal.

Details:

  • USCIS alert (Oct. 27, 2023).
  • USCIS Automatic Employment Authorization Document Extension page (updated Oct. 27, 2023).

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4. Texas Service Center Is New Filing Location for H-2A, H-2B, and Certain CNMI Petitions as of November 1

U.S. Citizenship and Immigration Services (USCIS) announced that as of November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.

USCIS said there will be a 60-day grace period for forms filed at the California Service Center (CSC) or Vermont Service Center (VSC) during which misdirected forms will not be rejected. After the 60-day grace period ends, USCIS will reject these petitions and applications if they are filed at the CSC or VSC. USCIS also will reject any such petitions and applications if they were received at the Texas Service Center before November 1, 2023.

The notice includes the addresses where each type of petition or application should be mailed.

Details:

  • USCIS alert (Oct. 27, 2023).

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5. USCIS Updates Guidance on EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) announced on October 26, 2023, that it is “updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.”

USCIS said the update incorporates changes from the EB-5 Reform and Integrity Act of 2022 into the Policy Manual, building on an initial update that incorporated such changes on October 6, 2022.

Among other things, USCIS reorganized Part G, Volume 6, updated the chapter on adjudication of investor petitions for classification, and added new content on regional center designations and obligations, project applications, and direct and third-party promoters, including registration. USCIS said further updates to EB-5 guidance in the Policy Manual are forthcoming, and will include revisions to Chapter 5, Removal of Conditions.

USCIS said the new guidance “is effective immediately and is controlling, and supersedes any related prior guidance.”

Details:

  • USCIS alert (Oct. 26, 2023).

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6. USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants

Effective October 24, 2023, U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance regarding the 2-year foreign residence requirement for the J nonimmigrant exchange visitor classification.

The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates. The update includes the ground and clarifies employment requirements.

Specifically, the update:

  • Clarifies that USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.
  • Explains that a travel day, where a fraction of the day is spent in the country of nationality or last residence, counts toward satisfaction of the 2-year foreign residence requirement.
  • Provides that USCIS considers situations in which it is impossible for the benefit requestor to satisfy the 2-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in this situation.
  • Clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement.

Feedback on this update can be emailed to USCIS at [email protected].

Details:

  • USCIS alert (Oct. 24, 2023).
  • USCIS Policy Alert, PA-2023-30 (Oct. 24, 2023).

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7. USCIS Allows Additional 30 Days for Comments on E-Verify NextGen and Revisions to E-Verify

U.S. Citizenship and Immigration Services (USCIS) is allowing 30 additional days for public comments on several information collection notices related to E-Verify.

USCIS is allowing until November 27, 2023, for public comments on E-Verify NextGen. The information collection notice was previously published in June, allowing for a 60-day public comment period. USCIS received six comments in connection with the 60-day notice.

E-Verify NextGen, I–9NG, “was developed as a demonstration project to further integrate the Form I-9, Employment Eligibility Verification, process with the E-Verify electronic employment eligibility confirmation process to create a more secure and less burdensome employment eligibility verification process overall for employees and employers,” USCIS said.

USCIS is allowing until November 24, 2023, for public comments on proposed revisions to the E-Verify program. That notice was previously published in June also, allowing for a 60-day public comment period. USCIS received two comments.

Details:

  • USCIS notice (E-Verify NextGen), 88 Fed. Reg. 73610 (Oct. 26, 2023).
  • USCIS notice (E-Verify), 88 Fed. Reg. 73351 (Oct. 25, 2023).

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8. Reminder to Employers: Use New I-9 Form as of November 1

The Citizenship and Immigration Services (CIS) Ombudsman reminded employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.

The updated Form I-9 reflects the option for eligible employers to verify employment eligibility remotely. The CIS Ombudsman said that all previous versions will no longer be accepted. “If you do not use the 8/01/23 edition of Form I-9, you may be subject to penalties,” the CIS Ombudsman warned.

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9. State Dept. Intends to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Applicants

The Department of State (DOS) intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and Budget for review. Currently, the State Department can only process visa applications at its embassies and consular posts abroad and does not offer a stateside option for visa issuance.

Although full details have not yet been released, according to reports, in its initial phase the stateside visa renewal program is expected to be limited to H-1B principal visa applicants (not dependents). There will be additional eligibility requirements for participation (for example, the applicant must be renewing a visa issued within a limited number of years before the renewal submission), and the program will be voluntary—applicants will still have the option of obtaining visas abroad through regular processing.

The pilot program is expected to be limited to nationals of countries whose visas are not subject to reciprocity fees. India will be eligible for participation in the pilot program, as there is no applicable reciprocity fee. These fees vary in amount and are meant to equalize the cost of a visa for each country’s nationals with the fees charged by that country to U.S. nationals seeking comparable visas. Because the fees vary and must be refunded if a visa cannot be issued, including them in the pilot program could have delayed the rollout.

The program is intended to help reduce consular delays, which were exacerbated by the COVID-19 pandemic and have continued in certain locations. The pilot program will test the operational capacity of the stateside renewal program. Availability is expected to be capped at 20,000 applicants. If successful, the program will expand to other employment-based visa categories following its initial launch, although full implementation is likely to take some time.

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10. DHS Plans to Amend H-1B Regulations Governing Specialty Occupation Workers

The Department of Homeland Security (DHS) plans to amend its H-1B regulations “governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” The notice of proposed rulemaking (NPRM), expected to be published in the Federal Register on October 23, 2023, would also “narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.” A 60-day public comment period starts following publication of the NPRM in the Federal Register.

Below is a non-exhaustive summary of highlights. DHS proposes to:

  • Revise the regulatory definition and criteria for a “specialty occupation” and clarify that a position may allow a range of degrees if they have a direct relationship to the duties of the position;
  • Clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment;
  • Codify and clarify that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts;
  • Require evidence of maintenance of status to be included with the petition if a beneficiary is seeking an extension or amendment of stay;
  • Change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity;
  • Provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B;
  • Clarify the requirements regarding the requested employment start date on H-1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year;
  • Select H-1B cap registrations by unique beneficiary rather than by registration;
  • Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary;
  • Clarify that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity; and
  • Clarify that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.

Details:

  • USCIS notice of proposed rulemaking (advance copy), 88 Fed. Reg. 72870 (Oct. 23, 2023).
  • USCIS news release (Oct. 20, 2023).

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11. Visa-Free Travel to United States Is Now Available for Israelis

On October 19, 2023, the Department of Homeland Security (DHS) announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program (VWP). Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s (CBP) Electronic System for Travel Authorization (ESTA).

This authorization allows eligible Israelis to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. Israeli citizens and nationals with valid B-1/B-2 visas may continue to use them for business and tourist travel to the United States, DHS said.

DHS explained that eligible Israeli citizens and nationals must have a biometrically enabled passport book. Travelers who possess non-biometric, temporary, or emergency travel documents, or travel documents from a non-VWP designated country, are not eligible for travel under the VWP and may instead apply for a U.S. visa. ESTA applications may take up to 72 hours for processing. The ESTA application will be available in English now and in other languages by November 1, 2023, DHS said.

Details:

  • DHS announcement (Oct. 19, 2023).
  • CBP announcement (Oct. 19, 2023).
  • ESTA Application, U.S. Customs and Border Protection.
  • S. Visa Waiver Program.

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12. USCIS Clarifies Guidance on L-1 Petitions for Intracompany Transferees Filed by Sole Proprietorships and on Blanket L Petitions

On October 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner.

The USCIS guidance further clarifies that an L-1 petition where the owner and beneficiary are the same constitutes an impermissible self-petition. The update also clarifies guidance regarding blanket L petitions, noting that the failure to timely file an extension of the blanket petition does not trigger the three-year waiting period before another blanket petition may be filed.

Details:

  • USCIS Policy Alert, PA-2023-29 (Oct. 20, 2023).
  • USCIS announcement (Oct. 20, 2023).

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13. DHS Announces Family Reunification Process for Ecuador

On October 18, 2023, the Department of Homeland Security (DHS) announced a new family reunification parole process for certain nationals of Ecuador that also allows for work authorization. The new process is for certain nationals of Ecuador whose family members are U.S. citizens or lawful permanent residents and who have received approval to join their family in the United States. Specifically, Ecuadorian nationals and their immediate family members can be considered for parole on a case-by-case basis for up to three years while waiting to apply to become lawful permanent residents.

Individuals paroled into the United States under this process will generally be considered for parole for up to three years and will be eligible to request work authorization while they wait for their immigrant visa to become available, DHS said. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

Qualifying beneficiaries must be outside the United States; must meet all requirements, including screening and vetting and medical requirements; and must not have already received an immigrant visa.

Details:

  • DHS news release (Oct. 18, 2023).

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14. USCIS Reaches H-2B Cap for Temporary Nonagricultural Workers for First Half of FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on October 13, 2023, that it has received enough petitions to reach the cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year (FY) 2024. October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including petitions for:

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

Details:

  • USCIS alert (Oct. 13, 2023).

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15. USCIS Provides Guidance on Interpretation of EB-5 Program Changes

U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.

USCIS said that because of the changes made by the RIA, investors filing petitions for classification “no longer need to sustain their investment throughout their conditional residence, which may be many years in the future and dependent on factors outside the investor’s control such as visa availability.” Instead, USCIS said:

[The Immigration and Nationality Act (INA)] now requires only that the investment must be expected to remain invested for at least two years, provided job creation requirements have been met. Although the statute does not explicitly specify when the two-year period under INA § 203(b)(5)(A)(i) begins, we interpret the start date as the date the requisite amount of qualifying investment is made. In other words, we will use the date the investment was contributed to the new commercial enterprise and placed at risk in accordance with applicable requirements, including being made available to the job-creating entity. If invested more than two years before filing the I-526 or I-526E petition, the investment should generally still be maintained at the time the I-526 or I-526E is properly filed so we can appropriately evaluate eligibility.

Because the statute does not explicitly specify whether it applies only to post-RIA investors or also to pre-RIA investors, USCIS said it interprets INA § 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center. USCIS “will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.” USCIS also said it “will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.”

Details:

  • USCIS alert (Oct. 11, 2023).

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16. Visa Bulletin for November Includes Reminder About Religious Workers Category Expiration

The Department of State’s Visa Bulletin for November 2023 includes a reminder that the non-minister special immigrant program expires on November 17, 2023.

The bulletin states that no employment fourth preference Certain Religious Workers (SR) visas may be issued overseas, or final action taken on adjustment of status cases, after November 16, 2023. Visas issued before this date will only be issued with a validity date of November 16, 2023, and all individuals seeking admission as non-minister special immigrants must be admitted into the U.S. by November 16, 2023.

Details:

  • Visa Bulletin, Dept. of State (Nov. 2023).

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17. Temporary Need Exemption Extended for Certain Guam and CNMI H-2B Workers

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance reflecting the extension of the exemption from the temporary need requirement for petitions for temporary nonagricultural H-2B nonimmigrant workers on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) through December 30, 2024, as provided in the National Defense Authorization Act (NDAA) for fiscal year (FY) 2023.

USCIS explained that the temporary nonagricultural worker (H-2B) nonimmigrant visa classification applies to a noncitizen seeking to perform temporary nonagricultural labor or services in the United States when U.S. workers are not available. Previous NDAAs created and expanded on an exemption from the requirement that nonagricultural labor or services be temporary in nature for petitioners of certain H-2B workers on Guam and in the CNMI.

Details:

  • USCIS Policy Alert, PA-2023-28 (Oct. 4, 2023).

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18. DHS Announces Relief for Cameroonian F-1 Nonimmigrant Students

The Department of Homeland Security (DHS) is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Cameroon, regardless of country of birth (or individuals having no nationality who last habitually resided in Cameroon), and who are experiencing severe economic hardship as a direct result of the current armed conflict and humanitarian crisis in Cameroon.

Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status. DHS said it will deem such an F-1 nonimmigrant student granted employment authorization to be engaged in a “full course of study” for the duration of the employment authorization if the nonimmigrant student satisfies the minimum course load requirement.

Details:

  • DHS notice, 88 Fed. Reg. 69939 (Oct. 10, 2023).

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19. USCIS Launches New Online Change-of-Address Tool

U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.

USCIS said that with E-COA, most individuals with a USCIS online account can update their mailing and physical addresses with USCIS for pending applications, petitions, or requests in a single place, eliminating the need to update the address in multiple places; fill out a paper AR-11, Alien’s Change of Address Card; call the Contact Center; or visit a USCIS Field or Asylum Office. E-COA will automate address changes for almost all form types. The exceptions are listed at uscis.gov/addresschange.

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20. DOS Publishes DV-2025 Instructions, List of Countries

On October 3, 2023, the Department of State (DOS) published instructions and eligibility requirements for the Diversity Visa (DV) program for fiscal year (FY) 2025 (DV-2025). The online registration period for the DV-2025 diversity visa program began on Wednesday, October 4, 2023, and concludes on Tuesday, November 7, 2023, at 12 noon ET.

For FY 2025, up to 55,000 DVs will be available. The Electronic Diversity Visa Entry Form (E-DV Entry Form or DS-5501) is available online at dvprogram.state.gov. DOS will not accept incomplete entries or entries sent by any other means. There is no cost to register for the DV program, but selectees who are scheduled for an interview must pay a visa application fee before making their formal visa application where a consular officer will determine whether they qualify for the visa. DOS determines selectees through a randomized computer drawing.

Except for the United Kingdom and its dependent territories, which are now eligible for the DV–2025 program, there were no changes in eligibility from the previous fiscal year. For DV–2025, natives of the following countries and areas are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, The People’s Republic of China (including mainland and Hong Kong born), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela, and Vietnam. Natives of Macau SAR and Taiwan are eligible.

Details:

  • Diversity Visa Instructions for DV-2025, 88 Fed. Reg. 68261 (Oct. 3, 2023).

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21. DOS Restores Previous Version of Regulation Governing Public Charge Grounds of Visa Ineligibility

The Department of State (DOS) announced on October 6, 2023, that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.

On October 11, 2019, DOS published an interim final rule (IFR) that substantially revised the regulations governing the grounds. The IFR was enjoined by the District Court for the Southern District of New York on July 29, 2020, DOS explained. Since that time, the agency has used Foreign Affairs Manual (FAM) guidance that was in place before publication of the IFR.

“The IFR was intended to align with the standards then applied by the U.S. Department of Homeland Security (DHS) to determine inadmissibility on public charge grounds. In 2022, DHS published a new Final Rule. As such, the IFR no longer meets the policy aim of consistency with DHS standards. In reverting to regulatory text that was in place prior to the publication of the IFR, the Department is again more closely aligned with the current DHS standards,” DOS explained.

Details:

  • DOS news release (Oct. 6, 2023).

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22. U.S. to Resume Direct Repatriation of Venezuelans Without Authorization

The Department of Homeland Security (DHS) announced on October 5, 2023, that it “will resume direct repatriations of Venezuelan nationals who cross our border unlawfully and do not establish a legal basis to remain.”

DHS said this announcement “follows a decision by authorities from Venezuela to accept the return of Venezuelan nationals, as well as high-level discussions yesterday in Mexico City between the United States, Mexico, Colombia, and Panama where Secretary of State Antony Blinken, Secretary of Homeland Security Alejandro N. Mayorkas, and Homeland Security Advisor Liz Sherwood-Randall discussed ongoing coordinated efforts to address irregular migration in the Western Hemisphere.”

Details:

  • DHS press release (Oct. 5, 2023).

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23. DHS to Extend and Redesignate Cameroon for Temporary Protected Status

The Department of Homeland Security (DHS) will extend and redesignate Cameroon for Temporary Protected Status (TPS) for 18 months, beginning on December 8, 2023, and ending on June 7, 2025.

Existing TPS beneficiaries who wish to extend their status through June 7, 2025, must re-register during the 60-day re-registration period, which is expected to begin on October 10, 2023. The redesignation of Cameroon also allows additional Cameroonian nationals (and individuals having no nationality who last habitually resided in Cameroon) who have been continuously residing in the United States since October 5, 2023, to apply for TPS for the first time during the initial registration period, which is expected to begin on October 10, 2023.

DHS said, “It is important for re-registrants to timely re-register during the registration period and not to wait until their Employment Authorization Documents (EADs) expire, as delaying re-registration could result in gaps in their employment authorization documentation.”

Details:

  • DHS Extension and Redesignation of Cameroon for Temporary Protected Status (advance copy).

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24. DOS Announces U.S. Passport Processing Times, Tips

The Department of State (DOS) announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks. Processing times do not include mailing time.

DOS said that between October 2022 and September 2023, DOS issued more than 24 million passport books and cards, the most in U.S. history. DOS encourages applicants to check the status of their passport application and sign up for updates via email.

DOS also released the following tips for U.S. passport applicants:

  1. If you’re renewing your application, submit your most recent passport with your application. Sign and date Form DS-82.
  2. Complete all sections of your form including entering your correct Social Security number. Do not leave anything blank. If you’re applying for the first time or with your child under age 16, wait to sign the form until you are instructed to do so. If you’re renewing by mail, sign and date the form on your own.
  3. Closely follow the passport photo requirements.
  4. Provide evidence of U.S. citizenship.
  5. If your current name is not the same as the name on your most recent passport, include your name change document (such as marriage certificate, divorce decree, or court order).

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25. ABIL Global: Austria

In a groundbreaking judgment, the Vienna Administrative Court recently held that descendants of former concentration camp inmates and forced laborers who were nationals of successor states of the Austrian-Hungarian Empire (e.g., Hungary, Czechoslovakia, Poland, Romania, Yugoslavia), were deported to Austria during WWII, and remained in Austria after the liberation of concentration camps on Austrian territory in spring 1945, if only for a period of a few months, are entitled to Austrian citizenship in privileged ancestry proceedings if there are indicators that they tried to establish a center of vital interests (or main domicile) in post-war Austria.

In September 2020 and May 2022, the Austrian Citizenship Act was amended to allow Holocaust survivors, as well as descendants of Holocaust victims and survivors, to acquire Austrian citizenship in fast-track ancestry proceedings, without being required to have resided in Austria or to relinquish their current citizenship(s).

Applicants must show that their ancestors were Austrian and that they:

  • Were citizens of a successor state of the Austro-Hungarian Empire or stateless, had their main domicile in Austria, within the post-WWI borders set forth in the Treaty of St. Germain, after January 31, 1933, and before May 15, 1955, and moved abroad “voluntarily” (meaning not as a result of deportation) because they feared or had suffered persecution at the hands of the Nazis or because they were part of the Austrian resistance movement against the Nazi regime;
  • Had their main domicile outside of Austria between January 30, 1933, and May 9, 1945, and were unable to return to Austria (or move to Austria for the very first time) because of fear of Nazi persecution; or
  • Were citizens of a successor state of the Austro-Hungarian Empire or stateless, had their main domicile in Austria, and were deported abroad from Austria.

Since May 2022, Austrian citizenship is also available for descendants of Holocaust victims whose ancestors were Austrian, were citizens of a successor state of the Austro-Hungarian Empire or stateless, and were killed by agents of the Nazi regime in Austria or abroad.

There are still several gaps in the legislative framework, however, one of which has until recently concerned descendants of Austrians, citizens of successor states of the Austro-Hungarian Empire or stateless persons who were deported to and imprisoned in concentration and forced labor camps on Austrian territory. Citizenship authorities and administrative courts have taken the view that such imprisonment would not create a main domicile within the meaning of the Citizenship Act.

In a recent case, the Vienna Administrative Court rejected this argument and held that descendants of former concentration camp inmates and forced laborers who were nationals of successor states of the Austrian-Hungarian Empire, were deported to Austria during WWII, and remained in Austria after the liberation of the camps in spring 1945, if only for a period of a few months, are entitled to Austrian citizenship in privileged ancestry proceedings if there are indicators that they tried to establish a main domicile in post-war Austria. In its judgment, the court for the first time acknowledged the continuing effects of Nazi persecution even after the end of WWII due to widespread Nazi sentiment in Austria’s population until 1950 and beyond, and the right to Austrian citizenship for descendants of tens of thousands of former concentration camp inmates and forced laborers who were deported to Austria and, following liberation by Allied troops in spring 1945, were prevented from establishing a main domicile in Austria, at least for a few months, and were forced to leave post-war Austria before August 15, 1955.

Details:

  • For more information, see http://www.verwaltungsgericht.wien.gv.at/Content.Node/rechtsprechung/152-099-8601-2022.pdf (in German).

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New Publications and Items of Interest

White House H-2B Worker Protection Taskforce report. The Biden administration has released a report of the H-2B Worker Protection Taskforce. The report announces more than a dozen new actions to be taken by four federal agencies: the Departments of Homeland Security, Labor, and State, and the U.S. Agency for International Development. According to a White House statement, the new actions include protecting H-2B and H-2A workers engaged in labor disputes with their employers, leveraging existing data to increase transparency and reduce the vulnerability of H-2B and H-2A workers, reducing workers’ vulnerability to exploitation from labor recruiters and employers, empowering workers by improving their access to information, and establishing a standing Interagency H-2 Worker Protection Working Group led by the White House.

USCIS webinar on I-9 document training. U.S. Citizenship and Immigration Services will hold a webinar, “Form I-9 Document Training,” on Monday, November 13, 2023, from 11 a.m. to 12 noon ET. The webinar is intended for employers and HR professionals. Topics will include the types of acceptable documents when filling out the Form I-9, Employment Eligibility Verification, and how to enter information on the form. Questions about the webinar may be sent to [email protected].

Immigration agency X (formerly Twitter) accounts:

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

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

Alliance of Business Immigration Lawyers:

  • ABIL is available on X (formerly Twitter): @ABILImmigration
  • Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Charles Kuck has published a new blog post: The Visa Apocalypse is Upon Us—Welcome to the Future.

Cyrus Mehta authored a new blog post: While the Proposed H-1B Rules Have Many Positive Features, They May Also Result in Requests for Evidence and Denials.

Mr. Mehta and Greg Siskind were quoted by Law360 in DHS Rule To Thwart H-1B Visa Lottery Abuse Earns Praise (available by registering). Mr. Siskind said, “I’m glad USCIS proposed this fix. It really should solve the problem and also improve, overall, the lives of both H-1B visa beneficiaries and U.S. workers, who will see their wages increase as H-1B workers have more bargaining power.” Mr. Mehta said he was concerned about an element of the proposed rule that would add language to further define what constitutes a specialty occupation. He said that provision could unfairly exclude some foreign workers with MBAs from getting H-1B visas. Under the proposed rule, he said, an MBA degree-holder offered a job in marketing or finance, for example, would need to prove that the degree was specialized in those areas. “Undoubtedly there are MBA degrees where you can show that your coursework or whatever was in finance or marketing, but I don’t see why a business administration degree has been singled out as generalized as opposed to a law degree or a medical degree,” he said.

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: Emerging Immigration Issues Arising from Violence in the Middle East; and Shaping Immigration Policy Through EADs.

Mr. Mehta and Jessica Paszko co-authored a new blog post: ICE Imposes Guardrails On Use of Red Notices Against Noncitizens in Removal Proceedings.

Mr. Mehta was quoted in the Times of India in Proposed H-1B Rule: Redefining Specialty Occupation, the Employee’s Degree Must Co-Relate to the Job. Among other things, Mr. Mehta said, “There are some features in the proposed rule that will incentivize the USCIS to issue requests for evidence and potentially deny the H-1B application. A job-position will not be considered a specialty occupation for H-1B purposes if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position.”

Angelo Paparelli authored AI to the Rescue of U.S. Immigration, published on LinkedIn.

Mr. Paparelli authored a new blog post: Tipping the Scales of Immigration Justice.

Mr. Paparelli was quoted by Law 360 in “Immigration Attys Soothe Client Fears Amid Shutdown Threat” (available with registration). Under a shutdown, Mr. Paparelli noted, the Department of Labor would stop processing labor certifications for temporary and seasonal workers through the H-2A and H-2B visa programs. Those certification decisions tend to be accelerated because of the temporary nature of the programs, so a shutdown would risk the ability of those programs to function as intended, he said. That would hurt agricultural employers in particular, who rely heavily on the H-2A program for farmworkers, as well as other employers who rely on H-2B workers for seasonal work. “The whole process is sort of like … a train with different cars on it. And if one of the early cars starts to buckle, it derails the rest of the system,” Mr. Paparelli said. “I am not Blanche DuBois and I don’t like to rely on the kindness of strangers,” he said, referring to the fictional character in “A Streetcar Named Desire” and her final line in the 1947 play. “And so I basically would recommend people filing as early as they can.”

WR Immigration Associate Kristen Tully has been selected by Super Lawyers as a 2023 Massachusetts Rising Star.

WR Immigration has published a new blog post by Avi Friedman and Evan Gordon: State Department Expected to Resume Stateside Visa Renewal Program for More Convenient Processing.

Stephen Yale-Loehr was quoted by MarketWatch in Bipartisan Calls Grow to ‘Fix’ U.S. Border Before Approving $75 Billion to Defend Israel, Ukraine. He said that there are incremental changes to immigration law that could garner bipartisan support and address the migrant situation at the border, which is being driven by relatively new trends. The article notes that Mr. Yale-Loehr helped to convene a conference earlier this year that brought together activists, business and labor leaders, and a bipartisan group of former government officials to craft a set of reforms that could appeal to both sides of the political spectrum. “Ten years ago, the majority of people who were apprehended at the border were young males traveling by themselves primarily coming for work. Now with the breakdown of various governments in Central America, Haiti, Cuba, and Venezuela, you see families coming, fleeing just desperate situations, and that has changed the dynamic of people trying to cross into the United States.” The article notes that he and his colleagues at Cornell University Law School published a recent white paper, Immigration Reform: A Path Forward, which outlines proposals including reformation of the U.S. asylum system. Mr. Yale-Loehr said that lawmakers need to recognize the “new normal” conditions at the border and adjust how the U.S. processes asylum claims, in part by reforming immigration law and creating asylum and immigration centers outside the United States at embassies and consulates so applications can be processed outside the country.

Mr. Yale-Loehr and colleagues will hold a call on Thursday, November 9, 2023, at 12 noon ET to discuss their recent white paper in which they offer three sets of interlocking proposals structured to maximize bipartisan support: (1) strengthening border security; (2) adding work visas; and (3) offering deportation protection to DREAMers. The speakers will assess the political landscape, describe their proposals, and outline why they believe the proposed reforms should—and could—be enacted. RSVP to [email protected] for dial-in details. The participant toll-free number is 800-225-9448 (primary); the participant direct/international number is 203-518-9708 (alternate); and the conference ID is CORNELL.

Mr. Yale-Loehr and colleagues’ white paper was discussed in a recent article in Forbes, Border Bill’s Immigration Demands Would Likely Doom Aid to Ukraine.

Mr. Yale-Loehr was quoted by CBS News in Trump Eyes Radical Immigration Shift If Elected in 2024, Promising Mass Deportations and Ideological Screenings. Mass deportations on the scale Trump envisions “would require a massive amount of money appropriated by Congress,” he said. Mr. Yale-Loehr also noted that such an operation would raise significant legal and humanitarian concerns. U.S. law affords immigrants in deportation proceedings due process, he noted. Many immigrants who could be deportable have U.S. citizen spouses or children, raising the specter of large-scale family separations. “It would be a significant change. But there’s only so much you can do through executive action. Many of the things he tried before were immediately tied up in litigation, and were ultimately struck down by the courts.”

Mr. Yale-Loehr was quoted by Politico in ‘There Is No More Room in Mexico’: Mayor Adams Takes Mexico. He noted that “a single trip by a politician will not dampen the flow. Mayor Adams would do better to work cooperating with the Biden administration on this complex issue, rather than striking out on his own foreign policy pursuits.”

Mr. Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: How many people on the terrorist watchlist are coming into the United States? He said an increase in encounters with people on the terrorist watchlist “means that there is better coordination between government agencies than before. It does not necessarily mean that more terrorists are trying to enter the country.”

Mr. Yale-Loehr was quoted by the Bangor Daily News in Why Maine’s Rush to Get Asylum Seekers Employed Won’t Work. The article notes that immigration law experts have said that the work authorization timeline for asylum seekers cannot get changed without an act of Congress, with the partisan divide between the Republican-controlled House and Democratic-led Senate meaning bills must have broad bipartisan support to pass. “Given our dysfunctional Congress these days, that is unlikely to happen,” Mr. Yale-Loehr said.

Mr. Yale-Loehr will moderate a seminar, “The Migrant Surge: What’s Different About It This Time?,” on November 7, 2023, from 12:15 p.m. to 1:15 p.m. at Cornell Law School. Mr. Yale-Loehr and Muzaffar Chishti, of the Migration Policy Institute, will discuss the history of recent migrant flows to the U.S. border, the current migrant surge at the border, its impact on cities and states beyond the border, and possible effects on federal immigration policy. Register to attend via Zoom at https://cornell.zoom.us/webinar/register/WN_RwEvxopRTWOfcootUY5-qA#/registration.

Mr. Yale-Loehr co-authored an op-ed in The Hill, Blue States’ Plans for Migrant Workers Can Include or Exclude Biden.

Mr. Yale-Loehr was quoted in the New York Times in Help! I Was Denied Boarding on a Cruise, and I Wasn’t the Only One. Mr. Yale-Loehr said, “Even a green card holder is not guaranteed re-entry into the United States. If there’s nothing in the person’s immigration history to indicate that they are inadmissible for other reasons, then they should be allowed on the cruise ship.”

Mr. Yale-Loehr was quoted by Politico in ‘There Is No More Room in Mexico’: Mayor Adams Takes Mexico. Mr. Yale-Loehr said, “A single trip by a politician will not dampen the flow. Mayor Adams would do better to work cooperating with the Biden administration on this complex issue, rather than striking out on his own foreign policy pursuits.”

Mr. Yale-Loehr was quoted by Inc. in How Business Leaders Can Prepare to Hire Asylum Seekers—and Why They’re Pushing for More. The article notes that in August, more than 120 business executives signed a letter to President Biden and Congress urging more federal support and expedited work permits for asylum seekers. Mr. Yale-Loehr said that especially hard-hit industries, including construction, farming, and home health care, could benefit from the added workers. He noted that there are steps migrants must take before they start legally working, and obstacles to navigate. For example, he noted that asylum seekers may not speak English or may want a lawyer’s assistance to file the work permit application.

Mr. Yale-Loehr was quoted by El Pais in A Three-Month Wait: New U.S. Immigration Plan Marred by Secrecy and Uncertainty. The article notes that a new U.S. immigration program known as Movibilidad Segura, or Safe Mobility, pursues “the expansion of legal routes to the United States or other countries for refugees and migrants in South and Central America,” according to its official website. “The United States launched the program in June with the aim of “reducing irregular migration,” and established migration offices in Colombia, Costa Rica, and Guatemala. However, three months after its launch, less than 1% of the nearly 29,000 applicants in Colombia have passed through the U.S. Refugee Admissions Program (USRAP), according to official data. The lack of information and the secrecy surrounding the project have experts consulted by El Pais perplexed, the article notes. Migrants interviewed by El Pais explained that they had to sign a confidentiality agreement stating that they “cannot comment on their process.” Mr. Yale-Loehr termed this procedure “unprecedented” and “unusual.” He explained that signing non-disclosure clauses does not form part of the normal refugee process in the United States and is not required for an interview at a U.S. embassy or consulate. “It must be a new procedure, which I haven’t heard of before,” he said. When the U.S. government launched Safe Mobility in Colombia, El Pais noted, it announced that it would be conducting “a six-month pilot period.” Midway through, it said it plans to extend it but declined to give a specific timeline. With so much uncertainty, Mr. Yale-Loehr said he understands the frustration surrounding the scheme: “It’s had a very slow start.” He said he believes that the future of Safe Mobility remains unknown: “It has not failed yet, but it has not been a success either.”

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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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https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2023-11-05 09:51:052024-01-08 11:54:27ABIL Immigration Insider • November 5, 2023

ABIL Immigration Insider • October 1, 2023

October 01, 2023/in Immigration Insider /by ABIL

In this issue:

1. Shutdown Averted for Now; DHS Releases Fact Sheet on Potential Impact – Shortly before the deadline on September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. Also, the Department of Homeland Security released a fact sheet on the impact of a potential shutdown on its workforce.

2. DHS Releases Advance Copy of TPS Extension/Redesignation for Venezuela, Details on EADs – The Department of Homeland Security (DHS) has released an advance copy of its notice extending the designation of Venezuela for Temporary Protected Status (TPS) until September 10, 2025. DHS is also redesignating Venezuela for TPS. DHS said re-registrants should timely re-register during the registration period and not wait until their Employment Authorization Documents expire.

3. EAD Validity Period Increased for Certain Categories – U.S. Citizenship and Immigration Services is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal. USCIS is also increasing the maximum validity period to five years for initial and renewal EADs for certain noncitizens who must apply for employment authorization.

4. Biometric Services Fee Exempted for All Form I-539 Applicants – U.S. Citizenship and Immigration Services (USCIS) is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status. Beginning October 1, 2023, applicants do not need to pay the $85 biometric services fee if their applications are postmarked October 1 or later.

5. USCIS Continues Fee Exemptions and Expedited Processing for Afghan Nationals – U.S. Citizenship and Immigration Services is extending and expanding filing fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2024.

6. FY 2025 Diversity Visa Lottery Begins Soon, Embassy Releases Tips – The online registration period for the DV-2025 diversity visa program begins on Wednesday, October 4, 2023, at 12 noon ET, and concludes on Tuesday, November 7, 2023, at 12 noon ET. DV 2025 instructions and tips are now available.

7. Israel Added to Visa Waiver Program – Eligible Israeli citizens, nationals, and passport holders from Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of 90 days or less for business or pleasure without first obtaining a B-1/B-2 nonimmigrant visa stamp in their passports.

8. Comments Requested on Proposed Revisions to Immigrant Petition for Alien Workers – Comments will be accepted until October 27, 2023, on proposed revisions to Form I-140, Immigrant Petition for Alien Workers.

9. Comments Requested on Proposed Revisions to Trusted Traveler Programs and U.S. APEC Business Travel Card – Comments will be accepted until October 27, 2023, on proposed revisions to Trusted Traveler Programs and the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card.

10. Potential Government Shutdown Effect on Immigration Agencies – There has been much speculation that the federal government is headed for a shutdown starting October 1, 2023. A shutdown would cause many adverse immigration impacts.

11. USCIS Issues Update on DACA Decision – U.S. Citizenship and Immigration Services issued an update about the partial stay of the recent DACA decision by a Texas federal judge.

12. Proposed DHS Rule Seeks to Modernize H-2 Program – The Department of Homeland Security announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs.

13. CIS Ombudsman Provides Tip Sheet on How F-1 Students Can Avoid Form I-765 Delays – The U.S. Citizenship and Immigration Services Ombudsman’s Office released a tip sheet for F-1 international students on how to avoid delays with adjudications on Form I-765, Applications for Employment Authorization.

14. Electronic Signatures Now Acceptable for STEM OPT Students – Immigration and Customs Enforcement recently updated Form I-983 to remove the requirement for wet signatures.

15. Department of Homeland Security Proposes Rule to Modernize H-1B Regulations – The Office of Management and Budget received a proposed rule from the Department of Homeland Security to amend regulations governing H-1B specialty occupation workers and F-1 international students.

16. Labor Contractor Penalized After Repeated Violations of H-2A Farmworkers’ Rights – A federal court has ordered a farm labor contractor to pay over $1 million in back wages and penalties for H-2A violations.

17. White House Announces Plans to Increase Border Enforcement and Accelerate Work Authorization – The Department of Homeland Security announced a series of actions to increase enforcement along the U.S.-Mexico border and to accelerate work authorization processing.

18. Justice Department Secures Agreement with UPS to Resolve Immigration-Relation Employment Discrimination Claims – The Justice Department announced a settlement with United Parcel Service (UPS) following the department’s determination that UPS violated the Immigration and Nationality Act by discriminating against a lawful permanent resident.

19. DHS Announces Extension and Redesignation of TPS for Venezuela – Secretary Mayorkas of DHS announced the extension and redesignation of Venezuela for Temporary Protected Status for 18 months.

20. DHS Announces Extension and Redesignation of TPS for Afghanistan – Secretary Mayorkas of DHS announced the extension and redesignation of Afghanistan for Temporary Protected Status for 18 months, from November 21, 2023, to May 20, 2025.

21. October 2023 Visa Bulletin is Published – The October 2023 Visa Bulletin shows no significant movement, with instructions to use Chart B.

22. USCIS Updates Policy Guidance for Extraordinary Ability and Outstanding Professor or Researcher EB-1 Immigrant Visa Classifications – U.S. Citizenship and Immigration Services announced on September 12, 2023, that it is updating the USCIS Policy Manual to clarify the types of evidence the agency will evaluate to determine eligibility.

23. Proposed DOL Rule Aimed at Bolstering Temporary Farm Workers’ Protection – U.S. Department of Labor proposed a new rule intended to strengthen protections for H-2A farm workers.

24. House Democrats Ask Biden to Help Immigrants and Asylum-Seekers through Executive Action – Over 100 House Democrats issued a letter to President Biden and DHS Secretary Alejandro Mayorkas asking for executive action to be taken to support immigrants and asylum-seekers in getting work authorization.

25. HHS Creates Data-Matching Program With DHS – The Health and Human Services Centers for Medicare and Medicaid Services published a notice of a new data-matching program that will allow government agencies to share personally identifiable information of HHS applicants and enrollees.

26. State Department Jettisons 2019 Public Charge Restrictions – The Department of State issued a final rule to discard public charge restrictions made in a 2019 rule.

27. USCIS Provides I-9 and E-Verify Guidance for People Impacted by the 2023 Hawaii Wildfire – U.S. Citizenship and Immigration Services issued guidance regarding I-9 and E-Verify compliance requirements for individuals and companies affected by the recent wildfire in Hawaii.

28. USCIS Ends Biometrics Fee Suspension for I-539 Applicants – On September 30, 2023, U.S. Citizenship and Immigration Services ended its temporary suspension of biometrics submission for people extending or changing their nonimmigrant status.

29. COVID-Era Visa Application Fee Receipts to Expire on September 30 – The Department of State announced the end of COVID-era exceptions and has resumed a 12-month validity period for fee payments.

30. Department of Labor Updates O*NET Database – The Department of Labor released a new version of the O*NET database.

31. Bipartisan Congressional Letter Requests Relief for Skilled Visa Holders – Members of Congress recently sent a letter to the Secretaries of State and Homeland Security requesting executive action to provide relief to certain highly skilled workers.

32. State Dept. Conducting Proof of Concept Testing for Digital Visa Authorization – The State Department’s Bureau of Consular Affairs announced it is developing and testing a digital visa authorization to replace paper visas.

33. ABIL Global: United Kingdom – The government of the United Kingdom is implementing a full-scale digitalization project and seeks to enhance the efficiency of immigration procedures by harnessing advanced technology.

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 – October 2023


1. Shutdown Averted for Now; DHS Releases Fact Sheet on Potential Impact

Shortly before the deadline on September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. A shutdown is still possible after November 17.

On September 28, 2023, the Department of Homeland Security released a fact sheet on the impact of a potential shutdown on its workforce. The fact sheet noted that if there is a shutdown, nearly three in four DHS employees—more than 185,000 people—would be required to continue working through a shutdown without receiving a paycheck during that time. Those working without pay would include law enforcement officers, analysts, investigators, and disaster response officials. DHS said a shutdown would result in, among other things:

  • More than 19,000 unpaid U.S. Border Patrol agents and 25,000 unpaid Office of Field Operations officers, including CBP agents and officers working at more than 300 ports of entry and guarding more than 6,000 miles of border.
  • Stopped funding to border communities and interior cities, including funding to cover costs that border and interior communities incur associated with sheltering migrants in their cities. “Recipients may be unable to draw down on a portion of the funds, and no new awards will be made under a shutdown,” DHS said.
  • Short- and long-term effects on hiring and onboarding, including a pause in processing of nearly 2,500 tentative job offers to DHS candidates for employment.

Details:

  • White House press release (Sept. 30, 2023).
  • Biden statement (Sept. 30, 2023).
  • R. 5860 (Sept. 30, 2023).
  • DHS Fact Sheet (Sept. 28, 2023).

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2. DHS Releases Advance Copy of TPS Extension/Redesignation for Venezuela, Details on EADs

The Department of Homeland Security (DHS) has released an advance copy of its notice extending the designation of Venezuela for Temporary Protected Status (TPS) for 18 months, beginning on March 11, 2024, and ending on September 10, 2025. Existing TPS beneficiaries who wish to extend their status through September 10, 2025, must re-register during the 60-day re-registration period, which runs from January 10, 2024, through March 10, 2024. DHS also released information about Employment Authorization Documents (EADs) for Venezuela TPS beneficiaries.

DHS is also redesignating Venezuela for TPS. DHS explained that the redesignation of Venezuela allows additional Venezuelan nationals (and individuals having no nationality who last habitually resided in Venezuela) who have been continuously residing in the United States since July 31, 2023, to apply for TPS for the first time during the initial registration period, which begins on October 3, 2023, and will remain in effect through April 2, 2025. In addition to demonstrating continuous residence in the United States since July 31, 2023, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since October 3, 2023.

Employment Authorization Documents. DHS said re-registrants should timely re-register during the registration period and not wait until their Employment Authorization Documents (EADs) expire.

U.S. Citizenship and Immigration Services (USCIS) announced on September 29, 2023, that it has automatically extended the validity of EADs previously issued under the TPS Venezuela designation. USCIS noted:

EADs covered by this extension are valid through March 10, 2025, as evidence of permission to work, and will list:

  1. An expiration date of March 10, 2024, or September 9, 2022, on the EAD, and
  2. A category code of A-12 or C-19.

Details:

  • Extension and Redesignation of Venezuela for Temporary Protected Status (advance copy, to be published in the Federal Register on October 3, 2023). The official version of the Federal Register notice will also be posted on USCIS’s TPS Venezuela page (en español).
  • DHS news release (Sept. 29, 2023).

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3. EAD Validity Period Increased for Certain Categories

U.S. Citizenship and Immigration Services (USCIS) announced on September 27, 2023, that it is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal.

USCIS is also increasing the maximum validity period to five years for initial and renewal EADs for certain noncitizens who must apply for employment authorization, including applicants for asylum or withholding of removal, adjustment of status under INA § 245, and suspension of deportation or cancellation of removal.

The agency noted that its updated guidance also explains the categories of noncitizens who are automatically authorized to work (also known as being employment-authorized incident to status or circumstance) and provides information on who can present a Form I-94, Arrival/Departure Record, to an employer as an acceptable document showing employment authorization under List C of Form I-9, Employment Eligibility Verification. The guidance also clarifies that certain Afghan and Ukrainian parolees are employment-authorized incident to parole.

USCIS noted that whether the noncitizen maintains employment authorization remains dependent on their underlying status, circumstances, and EAD filing category. For example, USCIS said, “if an individual received an EAD under the (c)(9) category based on a pending adjustment of status application for the maximum validity period of 5 years, and the adjustment application is then denied, their ancillary employment authorization may be terminated before the expiration date listed on their EAD.”

Details:

  • USCIS alert (Sept. 27, 2023).

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4. Biometric Services Fee Exempted for All Form I-539 Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on September 25, 2023, that it is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status. Beginning October 1, 2023, applicants do not need to pay the $85 biometric services fee.

Certain filers who filed before October 1 will still be scheduled for, and should attend, an ASC appointment. In most cases, after October 1, applicants will not be scheduled to attend a biometric services appointment. However, if USCIS determines that biometrics are required, the applicant will receive a notice with information about appearing for their biometric services appointment, the agency noted.

USCIS warned:

If you mistakenly submit the biometric services fee and the payment is submitted separately from the Form I-539 fee, we will return the biometric services fee and accept the Form I-539. If you mistakenly submit the biometric services fee and the payment is combined with a paper-based Form I-539 filing fee, this is considered an incorrect filing and we will reject the Form I-539. If you mistakenly authorize a credit card payment that combines the biometric services fee with the Form I-539 application fee, we will accept the application, and only charge the application fee.

USCIS said the biometric services fee exemption will apply to all applicants filing on or after October 1, 2023, including those applicants filing Form I-539 requesting an extension of stay in, or change of status to, H-4, L-2, or E nonimmigrant for whom USCIS had previously suspended the biometrics requirement through September 30, 2023.

Details:

  • USCIS alert (Sept. 27, 2023).

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5. USCIS Continues Fee Exemptions and Expedited Processing for Afghan Nationals

U.S. Citizenship and Immigration Services (USCIS) announced on September 29, 2023, that it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2024.

USCIS said these actions “will help Afghan nationals resettle, and in many cases, reunite with family in the United States by enabling USCIS to more quickly process their requests for employment authorization and/or Employment Authorization Documents (EADs), long-term status, status for immediate relatives, and associated services.” Details are included in the USCIS alert.

Details:

  • USCIS alert (Sept. 29, 2023).
  • Information for Afghan Nationals (updated Sept. 22, 2023).

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6. FY 2025 Diversity Visa Lottery Begins Soon, Embassy Releases Tips

The online registration period for the DV-2025 diversity visa program begins on Wednesday, October 4, 2023, at 12 noon ET, and concludes on Tuesday, November 7, 2023, at 12 noon ET. DV 2025 instructions are now available.

Also, on September 29, 2023, the U.S. Embassy in Barbados released “10 Tips for the 2025 Diversity Visa Lottery.” (As of press time, some of the links mentioned in the tip sheet did not yet include the DV-2025 updates, but the tips may be useful otherwise.)

Details:

  • DV Program application steps.
  • DV-2025 Program instructions.

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7. Israel Added to Visa Waiver Program

Effective September 29, 2023, Israel has been designated eligible for participation in the Visa Waiver Program (VWP). This means that eligible Israeli citizens, nationals, and passport holders from Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of 90 days or less for business or pleasure without first obtaining a B-1/B-2 nonimmigrant visa stamp in their passports.

The Electronic System for Travel Authorization (ESTA) is expected to be updated by November 30, 2023, to facilitate this change.

Details:

  • DHS final rule, 88 Fed. Reg. 67073 (Sept. 29, 2023).

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8. Comments Requested on Proposed Revisions to Immigrant Petition for Alien Workers

Comments will be accepted until October 27, 2023, on proposed revisions to Form I-140, Immigrant Petition for Alien Workers. Those wishing to review the revisions and submit comments may access the information collection instrument with instructions, or additional information, by visiting the Federal eRulemaking Portal site at https://www.regulations.gov and entering USCIS–2007–0018 in the search box.

Details:

  • USCIS notice, 88 Fed. Reg. 66498 (Sept. 27, 2023).

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9. Comments Requested on Proposed Revisions to Trusted Traveler Programs and U.S. APEC Business Travel Card

Comments will be accepted until October 27, 2023, on proposed revisions to Trusted Traveler Programs and the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card.

U.S. Customs and Border Protection (CBP) said it intends to update the Trusted Traveler Programs to align with the Department of State’s passport options. Specifically, CBP will modify the Trusted Traveler Program application by adding a third “X” gender marker for applicants identifying as non-binary, intersex, and/ or gender non-conforming (in addition to the existing “male” and “female” gender markers). The “X” marker will be categorized as “Unspecified or Another Gender Identity” in the document sections of the electronic Trusted Traveler Programs application.

In addition, CBP’s new Global Entry (GE) portals and the new Global Entry (GE) Mobile application are replacing legacy kiosks, CBP said. The portal or app will take the traveler’s facial image and match it with the existing image from the application process. The questions previously asked by the legacy kiosk will now be a verbal attestation when exiting the area, CBP noted.

Details:

  • CBP notice, 88 Fed. Reg. 66465 (Sept. 27, 2023).

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10. Potential Government Shutdown Effect on Immigration Agencies

There has been much speculation in the news about a possible federal government shutdown. When this has happened in the past, the contingency plans for each federal agency have varied. The White House keeps an updated page on its website with each agency’s plan for a federal government shutdown.

 

Here is an overview of the immigration agencies:

 

  • S. Citizenship & Immigration Services (USCIS). USCIS is funded by user fees and does not depend on federal funds for its operations. Processing of all applications and petitions is expected to continue. The only exception is if a petition or application requires the certification of another affected federal agency, such as an H-1B petition that requires certification by the Department of Labor (DOL).

 

  • Department of Labor (DOL). The Office of Foreign Labor Certifications (OFLC) oversees most immigration processes and is part of the DOL, which has typically been closed during government shutdowns. DOL will likely not accept or process any Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (PERM).

 

Additionally, as mentioned above, the operational status of DOL impacts USCIS petitions that require a certified LCA (H-1B, H-1B1, and E-3 visa petitions).  Historically, USCIS would temporarily allow an exemption to the LCA requirement for status maintenance filings. Similarly, the DOL’s status may impact the timing requirements of PERM applications. In the past, DOL has extended any deadlines that fell during a government shutdown.

 

  • Department of State (DOS). Consular operations and visa issuance may or may not be operational during a shutdown. DOS maintains a small reserve of funds for continued operations. However, the Department of State has reduced or halted visa issuance during prior shutdowns. Employees with international travel plans that would require them to obtain a new visa stamp while abroad should monitor the situation closely and may need to cancel their travel plans or risk being unable to return to the United States.

 

  • Customs and Border Protection (CBP). Borders will remain open and CBP will be operational, so individuals entering with a valid visa should not encounter any issues with ports of entry. However, individuals who plan to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TNs and L-1s for Canadian nationals) will need to check the operational status of the location at which they intend to apply for the latest information.

 

  • E-Verify. E-Verify is unavailable during a government shutdown. As a result, E-Verify employers will not be able to verify employment eligibility or take any other action in E-Verify. The three-day rule for E-Verify cases will be suspended, and the time during which employees may resolve Tentative Nonconfirmations will be extended. Employers are not permitted to take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. The government will release additional information on how to address situations that cannot adhere to traditional E-Verify deadlines if or when a shutdown occurs. This disruption does not affect I-9 obligations.

It is important to check each agency’s contingency plan as the situation unfolds because as mentioned, shutdown operations have varied with each presidential administration.

Details:

 

  • Agency Contingency Plans, The White House, whitehouse.gov

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11. USCIS Issues Update on DACA Decision

U.S. Citizenship and Immigration Services (USCIS) issued an update about the partial stay of the recent Deferred Action for Childhood Arrivals (DACA) decision by a Texas federal judge. On September 13, 2023, District Court Judge Andrew Hanen declared the Biden administration’s revised version of the DACA program illegal. However, Judge Hanen also kept in place a partial stay for DACA recipients who received their status before July 16, 2021.

 

USCIS states that current grants of DACA and associated employment authorization documents (EADs) will remain valid until they expire unless otherwise terminated. USCIS will continue to accept and process renewal requests. As for initial DACA requests, USCIS will continue to accept these, but the agency will not process the applications.

 

Individuals who currently have valid DACA and related EADs do not have to submit a request for DACA or employment authorization until it is time for renewal.

 

Details:

  • USCIS News Alert (Sept. 18, 2023).
  • DACA information page, USCIS.gov (updated Sept. 18, 2023).

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12. Proposed DHS Rule Seeks to Modernize H-2 Program

On September 18, 2023, the U.S. Department of Homeland Security (DHS) announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. The proposed rule is intended to improve the H-2 programs by providing more flexibility and protections for the workers, as well as improving efficiency.

The H-2 visa program allows U.S. employers to hire foreign nationals to fill temporary jobs when there are not enough U.S. workers willing, able, and qualified to do the temporary (often seasonal) work. The employer must file a petition accompanied by a certification from the Department of Labor (DOL) that states why there are no qualified U.S. workers and demonstrate how a foreign worker’s employment will not adversely affect the wages and working conditions of U.S. workers in similar roles.

There are a limited number of visas available to participate in the H-2 program and, under the proposed rules, employers who violate the requirements may become ineligible. The proposed rule also clarifies restrictions on employer-imposed fees and seeks to protect workers from incurring debts and abuse. DHS also proposes extended grace periods to seek other employment, depart the United States, or change visa status.  There would also be a major benefit to employers, as DHS proposes to make H-2 portability permanent, allowing employers to hire workers already lawfully in the United States.

The 60-day public comment period starts following the publication of the proposed rule in the Federal Register.

Details:

  • News Release, U.S. Department of Homeland Security (Sept. 18, 2023).
  • Proposed Rule, Federal Register (Sept. 20, 2023).

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13. CIS Ombudsman Provides Tip Sheet on How F-1 Students Can Avoid Form I-765 Delays

On September 18, 2023, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman’s Office released a tip sheet for F-1 international students on how to avoid delays with adjudications on Form I-765, Applications for Employment Authorization.

 

The tip sheet includes suggestions for students to check USCIS’ website before submitting their Form I-765 for relevant updates, ensuring that their designated school official (DSO) has provided a properly completed and signed Form I-20, Certification of Eligibility for Nonimmigrant Student Status for submission with the Form I-765, and applying online if possible, as USCIS receives online applications faster. Additional recommendations include submitting Form I-765 within 30 days (if applying for Post-Completion Optional Practical Training) or 60 days (if applying for a STEM Optional Practical Training Extension) after their DSO has entered the appropriate recommendation into their Student and Exchange Visitor Information System (SEVIS) record, and making sure that students update their mailing address with both USCIS and the U.S. Postal Service.

 

Details:

  • DHS, CIS Ombudsman Tip Sheet (Revised Sept. 2023).

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14. Electronic Signatures Now Acceptable for STEM OPT Students

Immigration Customs Enforcement (ICE) and the Student and Exchange Visitor Program (SEVP) recently updated Form I-983 (Training Plan for STEM OPT students) to remove the requirement for wet signatures. According to the ICE bulletin released about this form change, SEVP will accept electronic signatures in the following formats:

  • Electronic signatures produced with software programs
  • Digitally reproduced signatures, such as a scanned image of a physical signature

Additionally, students can now send their completed Form I-983 to their designated school official via email or a secure platform, such as a school portal.

 

Details:

  • ICE Bulletin, AILA Infonet (Sept. 20, 2023).

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15. Department of Homeland Security Proposes Rule to Modernize H-1B Regulations

On September 19, 2023, the Office of Management and Budget (OMB) received a proposed rule from the Department of Homeland Security (DHS) to amend regulations governing H-1B specialty occupation workers and F-1 students who are beneficiaries of timely filed H-1B cap-subject petitions.

 

DHS proposes to revise regulations relating to the employer-employee relationship and flexibility for start-up entrepreneurs, implement new requirements and guidelines for site visits in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data, and provide flexibility on the employment start date listed on the H-1B petition in limited circumstances. The proposed rule also includes details on addressing cap-gap issues for F-1 students changing to H-1B status, reducing misuse and fraud in the H-1B registration system, and clarifying the requirement that an amended or new petition be filed where there are material changes, including streamlining notification requirements relating to certain worksite changes, among other provisions.

 

After OMB reviews the proposed rule, it will be published in the Federal Register for public comment.

 

Details:

 

  • Reginfo, Proposed Rule (Sept. 19, 2023).
  • Reginfo, Pending Review (Sept. 19 2023).

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16. Labor Contractor Penalized After Repeated Violations of H-2A Farmworkers’ Rights

A federal court has ordered a Santa Maria, California farm labor contractor to pay over $1 million in back wages and penalties for violating H-2A agricultural worker program regulations.

 

The Department of Labor’s (DOL) Wage and Hour Division conducted three investigations into Rancho Nuevo Harvesting Inc.’s employment practices. The results of the investigations showed that the company underpaid workers, violated H-2A program requirements, and made false statements in the certification process.

 

According to the DOL news release, the company failed to:

 

  • Provide meals on Sundays (and, when feeding workers, the company provided insufficient and spoiled food)
  • Provide safe and healthy housing
  • Provide safe transportation to and from worksites
  • Pay outbound transportation and subsistence upon completion of workers’ contracts
  • State terms and conditions accurately in job orders and work contracts
  • Meet the three-fourths pay guarantee required for the H-2A program

In addition, the company was also found to have purposefully made false statements in the H-2A certification process regarding the company’s plans to provide the required meals to the farm workers. Rancho Nuevo Harvesting also illegally sought worker resignations when there was insufficient work and to avoid paying wages specified in the contracts.

 

These recent investigations are in relation to workers in three counties in California: Venture, Fresno, and Riverside. The company also had similar findings in four other investigations in two counties in Arizona and two additional counties in California in 2020 and earlier in 2023.

 

The court fined Rancho Nuevo Harvesting $475,211 in penalties and ordered it to pay $558,298 in back wages, as well as permanently forbid the company from future H-2A program violations.

 

Details:

 

  • News Release, Department of Labor (Sept. 19, 2023).
  • U.S. District Court Statement, Central District of California, Department of Labor website
    (Sept. 6, 2023).
  • Three-fourths pay guarantee, Department of Labor website Fact Sheet.

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17. White House Announces Plans to Increase Border Enforcement and Accelerate Work Authorization

On September 20, 2023, the Department of Homeland Security (DHS) announced a series of actions to increase enforcement along the U.S.-Mexico border and accelerate work authorization processing.

Regarding the southern border, DHS outlined several enforcement changes, including deploying additional military personnel to support DHS, increasing holding capacity, and working with international partners to facilitate removals and returns.

 

The DHS also outlined its plan to work with U.S. Citizenship and Immigration Services (USCIS) to improve the processing of employment authorization documents (EADs) for certain applicants. For parolees who scheduled an appointment through the CBP One app and are eligible for work authorization immediately, the goal is to improve processing times from 90 days to 30 days. At the same time, USCIS will work to reduce the median EAD processing time for Cuban, Haitian, Nicaraguan, and Venezuelan parolees to 30 days.

 

To help ease the processing burden on related agencies, USCIS will increase the validity period of initial and renewal EADs to 5 years for refugees, asylees, recipients of withholding of removal, and those applying for asylum, adjustments of status, or cancellation of removal.

 

Customs and Border Protection (CBP) will also increase awareness to work-eligible individuals that they can apply for work authorization and provide instructions. CBP noted that only a small percentage of paroled individuals who have applied through the CBP One app have taken the extra steps to apply for work authorization. DHS will deploy increased messaging to raise awareness of eligibility and the process, as well as deploy extra personnel to New York to educate newly arrived immigrants on the U.S. immigration system and how to apply for work authorization.

 

Details:

 

  • DHS Fact Sheet, Department of Homeland Security (Sept. 20, 2023).

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18. Justice Department Secures Agreement with UPS to Resolve Immigration-Relation Employment Discrimination Claims

On September 21, 2023, the Justice Department announced a settlement with United Parcel Service Inc. (UPS) following the department’s determination that UPS violated the Immigration and Nationality Act (INA) by discriminating against a lawful permanent resident.

 

Under the INA, employers cannot discriminate against employees based on their citizenship, immigration status, or national origin at any stage of the hiring process. Similarly, employers cannot retaliate against an individual for asserting their rights under the law. The department’s investigation revealed that UPS discriminated and retaliated against a lawful permanent resident in its airport badging process at their Logan Airport facility in Boston, Massachusetts by rejecting documentation provided by the worker to receive an airport badge and refusing to submit a badge application to the relevant airport authority. Without the airport badge, it was impossible for the worker to complete certain job duties. The department also uncovered that UPS retaliated against the worker by firing him after he complained to UPS about the discrimination and that this UPS facility had a policy or practice of rejecting valid documentation that some non-U.S. citizens show to obtain an airport badge, such as Machine Readable Immigrant Visas (MRIVs) with an I-551 stamp.

 

Under the settlement, UPS will pay nearly $100,000 in back pay, front pay, and associated benefits to the affected worker. UPS must also pay a civil penalty to the United States, train UPS staff on the INA’s anti-discrimination provision, revise its policies and procedures, and be subject to monitoring by the department.

 

Details:

 

  • OPA, Press Release (Sept. 21, 2023).
  • UPS Settlement Agreement (Sept. 21, 2023).

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19. DHS Announces Extension and Redesignation of TPS for Venezuela

On September 20, 2023, the Department of Homeland Security (DHS) announced the extension and redesignation of Venezuela for Temporary Protected Status (TPS) for 18 months. The extension and redesignation are based upon a review of country conditions and findings that Venezuela continues to experience increased instability and safety concerns.

 

Applicants must establish they are Venezuelan nationals who have been continuously residing in the United States since July 31, 2023, and meet other eligibility criteria.  USCIS will continue to process pending applications under the previous TPS designation for Venezuela, including associated EAD applications, and applicants do not need to resubmit their applications.  USCIS will accept new applications during an initial registration period to be published in a forthcoming Federal Register notice.

 

There are currently approximately 242,000 TPS beneficiaries under Venezuela’s existing TPS designation. An estimated 472,000 additional nationals of Venezuela may be eligible under the redesignation.

 

Details:

 

  • DHS, Press Release (Sept. 20, 2023).
  • DHS, Press Releases.

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20. DHS Announces Extension and Redesignation of TPS for Afghanistan

On September 21, 2023, the Department of Homeland Security (DHS) announced the extension and redesignation of Afghanistan for Temporary Protected Status (TPS) for 18 months, from November 21, 2023, to May 20, 2025. The extension and redesignation are based upon a review of country conditions and ongoing armed conflict in Afghanistan.

 

Current beneficiaries under TPS for Afghanistan must re-register during the 60-day registration period from September 25, 2023, to November 24, 2023. DHS will automatically extend the validity of EADs previously issued under Afghanistan’s TPS designation through November 20, 2024.

 

USCIS will continue to process pending applications under the previous TPS designation for Afghanistan, including associated EAD applications, and applicants do not need to resubmit their applications.  USCIS will accept new applications during the initial registration period from September 25, 2023, to May 20, 2025.  Afghan nationals who were granted parole under Operation Allies Welcome, or re-parole, may apply for and receive TPS, if eligible.

 

Also on September 21, 2023, DHS announced Special Student Relief for Afghanistan, effective November 21, 2023, to May 20, 2025.  Notice will be published in the Federal Register on September 25, 2023.

 

  • DHS, Press Release (Sept. 21, 2023).

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21. October 2023 Visa Bulletin is Published

On September 15, 2023, the Department of State released the October 2023 Visa Bulletin, indicating which green card applications are eligible to move forward based on their initial filing date. For employment-based filings, USCIS has directed the public to use “Chart B,” the Dates for Filing chart in the October Visa Bulletin.

The Visa Bulletin affects those born in countries where there are more green card applications filed than green cards available for the fiscal year. Those born in India and China are subject to backlogs and have to wait for their priority date to become current so that they may file an Adjustment of Status, the final stage in the green card application.

The EB-1 category is “current” for all countries except for India and China. Indian nationals with priority dates of July 1, 2019, and earlier are eligible to move forward. Chinese nationals with priority dates of August 1, 2022, can move forward with their applications.

EB-2 Indian nationals with priority dates of May 15, 2012, and EB-2 Chinese nationals with priority dates of January 1, 2020, can move forward.

In the EB-3 category, Indian nationals with priority dates of August 1, 2012, and Chinese nationals with priority dates of September 1, 2020, are eligible to file their Adjustment of Status applications for their green cards.

Details:

  • Department of State October 2023 Visa Bulletin.
  • USCIS Visa Bulletin Guidance.

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22. USCIS Updates Policy Guidance for Extraordinary Ability and Outstanding Professor or Researcher EB-1 Immigrant Visa Classifications

U.S. Citizenship and Immigration Services (USCIS) announced on September 12, 2023, that it is updating the USCIS Policy Manual to clarify the types of evidence the agency will evaluate to determine eligibility for extraordinary ability and outstanding professor or researcher EB-1 immigrant visa classifications.

An extraordinary ability EB-1 immigrant visa classification does not require a job offer, and it is filed by a person who has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.

An outstanding professor or researcher EB-1 immigrant visa classification is filed by a U.S. employer on behalf of a professor or researcher who is internationally recognized as outstanding in a specific academic area to work in a tenured or tenure-track position or a comparable position to conduct research.

USCIS explained that the new clarifying guidance enumerates and describes the evidence, or qualified comparable evidence, that meets the relevant evidentiary criteria for these petitions. Additionally, USCIS clarified the totality of the circumstances approach used by officers to evaluate the relevant evidentiary criteria, as well as outlined a list of positive factors that officers should consider when adjudicating these matters. While the examples of relevant evidence and factors have a focus on science, technology, engineering, or mathematics (STEM) fields, USCIS states that the list of examples is non-exhaustive and that while the listed factors are more relevant to STEM fields, the guidance applies to all extraordinary ability persons and outstanding professors or researchers.

Details:

  • USCIS alert (Sept. 12, 2023).
  • Policy Manual, Volume 6, Part F, Chapter 2 – Extraordinary Ability (current as of Sept. 12, 2023).
  • Policy Manual, Volume 6, Part F, Chapter 3 – Outstanding Professor or Researcher (current as of Sept. 12, 2023).

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23. Proposed DOL Rule Aimed at Bolstering Temporary Farm Workers’ Protection

On September 12, 2023, the U.S. Department of Labor (DOL) proposed a new rule intended to strengthen protections for H-2A farm workers.

The rule intends to add protections for H-2A farm workers including self-advocacy, protection against retaliation, enhanced transparency of foreign labor recruitment, and increased enforcement.

In the DOL release, acting Secretary Julie Su says, “Farm workers are vital to our farmers, our food supply and our communities. This proposed rule would strengthen protections for H-2A farm workers who are particularly vulnerable to labor abuses, empower them to advocate for fair treatment and ensure that their employment does not depress labor standards and undercut domestic farm workers. The administration is committed to protecting all workers, and this proposal would significantly advance that effort.”

The release outlines five specific parts of the proposed rule and how they will be implemented:

  • More protections for work self-advocacy. The rule would expand and clarify existing anti-retaliation protections and expand workers’ rights to invite guests like labor organizations to employer-provided housing. The release also lists requirements for employers to prevent coercion and transparency for employees’ rights to organize freely.
  • Clarifying when a termination is “for cause”. The rule will clarify what is required of an employer when terminating an employee “for cause” and establish six conditions when this termination can happen.
  • More transparency in foreign labor recruitment. The rule is intended to protect agricultural workers from predatory recruitment practices and would require employers to provide a copy of the agreement with agents and recruiters in the H-2A recruitment process, regardless of whether the agent or recruiter is U.S.-based or abroad.
  • Predictable wages. New wage rates will apply immediately upon their publication in the Federal Register, instead of weeks later. In addition, employers who do not provide adequate notice to workers if there is a delay in their start date will be required to pay workers the rate for each day the work is delayed up to 14 days.
  • Access to safe transportation. Long and crowded travel to and from worksites is commonplace and has raised safety concerns. The proposed rule would require seat belts in transport vehicles and prohibit employer-provided vehicles unless each occupant is wearing a seat belt.
  • Enhancing enforcement. Debarment would be faster for any business that violates H-2A program rules with the proposed rule and would make it easier for the system to discontinue recruitment for employers who continue to fail to meet program requirements. It would also forbid employers from confiscating workers’ passports, visas, or other government IDs.

There will be a 60-day notice-and-comment period after the proposed rule is published in the Federal Register before the department considers all comments and publishes the final rule.

Details:

  • News Release, U.S. Department of Labor (Sept. 12, 2023).

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24. House Democrats Ask Biden to Help Immigrants and Asylum-Seekers through Executive Action

On September 10, 2023, over 100 House Democrats, led by Representative Jerry Nadler (D-NY) and Representative Pramila Jayapal (D-WA) issued a letter to President Biden and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas asking for executive action to be taken to support immigrants and asylum-seekers in getting work authorization.

The letter requests the Biden Administration use “all the tools available to provide stability to undocumented individuals and recently arrived asylum seekers, seeking to work lawfully, support their families, and contribute to the economy.”

The letter suggests three paths to ease the burdens on asylum seekers in obtaining work authorization.

  • Relieving delays for EADs. Asylum seekers face significant regulatory and processing delays in obtaining employment authorization documents (EADs). Immigration courts present long delays to even apply. After that, there is a regulatory waiting period of 150 days for asylum seekers to apply for work authorization, and another 30 days to receive their EADs. During this time, refugees are forced to rely on underfunded community groups to provide housing, food, and health services, while many asylum seekers have the skills and desire to work and provide for their families independently.
  • Humanitarian parole. The letter suggests the Biden Administration to consider using humanitarian parole on a case-by-case basis, which has been used by both parties since the 1950s for urgent humanitarian reasons.
  • Provisional waiver. Finally, the Democrats urge the administration to reduce the backlog in the provisional waiver program, which has been a successful program to reunite families designed to streamline the family-based immigration visa process. Backlogs have grown significantly, with the current wait time reaching 43 months (over 3 ½ years) as of this past April.
  • Streamline cancellation of removal. Many eligible noncitizens residing in the U.S. only are aware of this program once they are in removal proceedings. The House Democrats urge the Biden Administration to use rulemaking to implement a process to proactively request a case review to access this relief.

The letter addresses that Congress is unlikely to pass any legislative immigration relief plans, but Biden can still make meaningful reforms through other authorities like executive action and rulemaking.

Details:

  • House Letter to Biden, Representatives Nadler and Pramila (Sept. 10, 2023).
  • 103 House Democrats join calls for Biden to open up the immigration playbook, The Hill (Sept. 11, 2023).

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25. HHS Creates Data-Matching Program With DHS

The Health and Human Services (HHS) Centers for Medicare and Medicaid Services published notice of a data-matching program with the Department of Homeland Security to share data related to applicants’ citizenship and immigration status for HHS eligibility determinations. The program will allow these government agencies to share personally identifiable information (PII) of HHS applicants and enrollees to determine the applicant’s eligibility for enrollment in health insurance plans established under the Affordable Care Act. The relevant PII that will be shared between these agencies includes name, date of birth, Alien Registration Numbers, I-94 Arrival/Departure Records, SEVIS ID, foreign passport numbers, and other immigration-related information such as the individual’s country of birth and details of USCIS employment authorizations. The program is committed to complying with all requirements of the Privacy Act of 1974, including notification to affected individuals and fail-safes to verify findings before taking adverse action such as suspending or terminating the enrollee’s HHS benefits.

The comment period for this notice ends on October 6, 2023. This program is expected to begin around October 20, 2023, for an initial term of 18 months, with the possibility for a 1-year renewal in 2025. If an error is discovered in immigration records, a Privacy Act amendment request may be submitted in writing to USCIS’s FOIA/PA Office in Lee’s Summit, MO.

Details:

  • Centers for Medicare & Medicaid Services Notice (Sept. 6, 2023).

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26. State Department Jettisons 2019 Public Charge Restrictions

On September 5, 2023, the Department of State issued a final rule to discard the regulatory amendments included in a 2019 rule regarding ineligibility for immigration benefits based on an applicant’s likelihood to become a public charge. Before 2019, only public cash assistance for income maintenance or long-term institutionalization at government expense was considered in the public charge inadmissibility assessment. The 2019 rule expanded the public charge test by adding several other factors that would be considered in determining whether an individual is likely to become a public charge. The 2019 rule raised concerns about fear and confusion preventing immigrants, including children, from accessing government services and benefits available to them.

This final rule will take effect on October 5, 2023. By abandoning the 2019 amendments, the DOS will continue to apply the regulatory language and Foreign Affairs Manual guidance in use before 2019.

Details:

  • DOS Final Rule (Sept. 5, 2023).
  • USCIS Public Charge Resources (July 10, 2023).

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27. USCIS Provides I-9 and E-Verify Guidance for People Impacted by the 2023 Hawaii Wildfire

U.S. Citizenship and Immigration Services (USCIS) issued guidance on September 5, 2023, regarding I-9 and E-Verify compliance requirements in light of the 2023 Hawaii wildfires, regarding the potential loss or destruction of affected employees’ documentation. All employment eligibility verification requirements remain in effect for areas impacted by the wildfires and there have been no exceptions made for employers seeking to onboard or re-verify affected employees. Individuals whose documentation was lost or damaged should immediately apply for replacement documentation. Employers may accept receipt for the replacement request to complete I-9 verification for the first 90 days of employment. The employee should follow up with the replacement document or other acceptable documentation within 90 days from the first date of employment to complete the verification. Employers whose I-9 records have been lost or destroyed because of the wildfires must recreate new I-9 forms for current employees, with an annotation stating: “Original Form I-9 destroyed in 2023 Hawaii wildfire; replacement created MM/DD/YYYY.”

Employees whose immigration documents or processes are impacted by the wildfires should seek relief through USCIS’ Immigration Relief in Emergencies or Unforeseen Circumstances program.

Details:

  • USCIS I-9 Related News (Sep. 5, 2023).

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28. USCIS Ends Biometrics Fee Suspension for I-539 Applicants

The temporary suspension of biometrics submission for I-539 applicants changing to or extending their H-4, L-2, E-1, E-2, E-2C, E-3, or E-3S, and E-3Y nonimmigrant status expired on September 30, 2023. Notably, in U.S. Citizenship and Immigration Services’ (USCIS) FY 2022 Progress Report issued in December 2022, the Service announced its intent to establish a permanent biometrics exemption for all I-539 applicants “in the months ahead.” As fiscal year 2023 came to a close, USCIS had not yet followed through with these plans. In the absence of further guidance from USCIS, applicants must include the $85 biometrics fee per applicant for all I-539 and I-539A applications postmarked or submitted electronically after September 30, 2023.

Details:

  • USCIS Alert (April 19, 2023).

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29. COVID-Era Visa Application Fee Receipts to Expire on September 30

Machine-Readable Visa (MRV) fees paid to the Department of State (DOS) in connection with a visa application submitted to a U.S. consulate or embassy abroad are normally valid for up to 12 months from the date of payment. Due to consulate closures and other processing delays caused by the COVID-19 pandemic, the DOS extended the validity of MRV fees paid on or after March 20, 2020. On September 1, 2023, the DOS announced the end of these COVID-era extensions and has resumed the 12-month validity period for all MRV fee payments. Any visa applicant who submitted their MRV fee payment between March 20, 2020, and October 1, 2022, must have scheduled an appointment or submitted an interview waiver application before September 30, 2023. Interviews scheduled beyond this date will remain valid so long as the appointment was scheduled before the deadline. Importantly, applicants who have been scheduled for an interview to take place after September 30 should not attempt to reschedule their appointments after that date, as this will result in both the loss of the original appointment date and forfeiture of the MRV fee. If the MRV fee expires before the applicant has scheduled an appointment or submitted an interview waiver application, the applicant must submit a new application package in addition to a new MRV fee payment.

Details:

  • DOS U.S. Visas News (Sep. 1, 2023).

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30. Department of Labor Updates O*NET Database

The Department of Labor, Employment and Training Administration released the O*NET 28.0 Database and updated its site on September 5, 2023, making updates to 90 occupation codes. Among these updates were revisions to occupation descriptions (including tasks, skills, work activities, etc.); minimum requirements for training, work experience, and education; job zones; and alternate job titles. Significantly, the occupation code 15-1211, Computer Systems Analysts was downgraded from Job Zone Four: Considerable Preparation Needed, to Job Zone Three: Medium Preparation Needed. As a result of this change, practitioners should expect a higher risk for PERM business necessity audits and H-1B specialty occupation requests for additional evidence for positions classified under the Computer Systems Analysts occupation.

The next O*NET update is expected in November 2023.

Details:

  • O*NET Resource (Sept. 5, 2023).

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31. Bipartisan Congressional Letter Requests Relief for Skilled Visa Holders

Congressmen Raja Krishnamoorthi (D-IL) and Larry Bucshon, M.D. (R-IN) recently sent a letter to Secretary of State Antony Blinken and Department of Homeland Security Secretary Alejandro Mayorkas requesting executive action to provide relief to highly skilled workers, allowing the filing of employment-based immigrant visa applications by marking all dates as “current” across all chargeability areas for employment-based green card cases in the October 2023 Visa Bulletin.

The letter, co-signed by a bipartisan group of 56 other members of Congress, outlined the precedent and authority for such action and highlighted the compelling government and economic interests in retaining these highly skilled professionals within the U.S. labor force, particularly during this time of increased opportunities for STEM workers to relocate to Canada. The action would bring relief and security to thousands of foreign nationals and their families by securing their ability to maintain work authorization, get promoted, and launch businesses. Under the current backlogs, these foreign nationals and their families are stuck in limbo waiting for the next step in obtaining their green cards beholden to their current job and employer. According to the letter, if the United States does not address these shortcomings, it is at risk of losing critical talent to countries that have already taken steps to prioritize immigration opportunities for highly skilled workers.

In the press release on Congressmen Krishnamoorthi’s website, Aman Kapoor ,president of Immigration Voice was quoted as saying, “The entire basis for this problem is a discriminatory immigration system that requires Indian nationals to have to wait 200 years for a green card while people from 150 other countries have no wait at all. While this larger problem cannot be fixed without legislation, our organization of over 100,000 members is absolutely thrilled with the bipartisan effort of Congressmen Krishnamoorthi, Bucshon and 56 other members of Congress to call on the Biden Administration to adopt this change.”

Details:

  • Letter to the Biden Administration, Congressman Raja Krishnamoorthi website (July 28, 2023).
  • Press Release, Congressman Raja Krishnamoorthi website (July 28, 2023).

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32. State Dept. Conducting Proof of Concept Testing for Digital Visa Authorization

On September 8, 2023, the U.S. Department of State’s (DOS) Bureau of Consular Affairs announced it is developing and testing a digital visa authorization (DVA) capability instead of the traditional process of printed visas placed in applicants’ passports. The U.S. Embassy in Dublin is conducting proof of concept testing with a small number of K-1 visas. If successful, DOS plans to expand the DVA to other visa classifications and other posts abroad. There was no timeline indicated in this announcement.

 

U.S. Customs and Border Protection’s (CBP) Document Validation program will notify airlines digitally when a traveler has valid travel credentials, including a DVA. DOS will provide more information and updates as they become available.

Details:

  • Travel.state.gov Visa News, U.S. Department of State (September 8, 2023)

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33. ABIL Global: United Kingdom

The government of the United Kingdom is implementing a full-scale digitalization project and seeks to enhance the efficiency of immigration procedures by harnessing advanced technology.

Technological developments in the United Kingdom (UK) are intended to expedite the submission and processing of visa applications and other immigration-related paperwork and modernize border operations by automating digital border processes. This initiative aims to enable Border Force and UK Visas and Immigration personnel to streamline current workflows, concentrating their resources on application categories that demand more time and effort due to their intricate legal aspects. The digital transformation of the UK immigration system is intended to bring the border management system and broader government in line with the demands of the 21st century.

Transition to Digital Immigration Status

By late 2024, the UK government intends to fully transition to a digital system for managing immigration status. This will enable individuals to apply for and verify their immigration status and cross borders without the need for physical travel vignettes or Biometric Residence Permits (BRPs). Some migrants have already begun receiving digital status as the default option. All BRPs are set to expire by December 31, 2024, in anticipation of these forthcoming changes.

Electronic Travel Authorisation Scheme

In March 2023, the government introduced the Electronic Travel Authorisation (ETA) scheme. Under this program, travelers from countries currently exempt from the requirement to apply for prior UK visa clearance before visiting the UK must obtain an ETA before their journey. The primary goals of the ETA scheme are to enhance border security in the UK and streamline the travel process. The ETA scheme will be slowly introduced, first with selected Middle Eastern nationals. Beginning November 15, 2023, Qatar nationals traveling to the UK will require an ETA. Nationals of the following countries traveling to the UK will need an ETA beginning February 22, 2024:

  • Bahrain
  • Jordan
  • Kuwait
  • Oman
  • Saudi Arabia
  • United Arab Emirates

More countries on the non-visa national list (those countries whose nationals do not require prior UK visa clearance before visiting the UK) will be added to the ETA scheme, with the aim for it to be fully in place by the end of 2024 for all relevant non-visa nationals traveling to the UK. As details of the ETA are still to be finalized for non-Gulf countries, multinational corporations with frequent business travel should stay vigilant for updates and make necessary preparations for its implementation.

Sponsorship System Reforms

In response to calls for a simplified sponsorship system following Brexit, the Home Office unveiled a sponsorship roadmap in August 2021. This roadmap outlines proposed changes to the current process of hiring foreign nationals to make it more straightforward and efficient. The plan includes:

  • Various IT improvements;
  • Enhancements in customer service;
  • Modifications to compliance procedures; and
  • Strategies for engaging stakeholders.

These reforms aim to create a more user-friendly system that reduces the time required to sponsor a migrant worker. The IT transformation will be implemented in three phases, with the Home Office anticipating full operational capability by Q1 2024. All sponsors are expected to transition to the new system by this deadline.

Online Verification of Right to Work and Rent

As of April 2022, employers and landlords are now legally obligated to conduct online checks to verify an individual’s right to work and rent status for most migrants. With limited exceptions, manual right-to-work verification for these individuals is no longer permitted. The Home Office has also introduced a digital service allowing British and Irish nationals to confirm their right to work and rent status online. Employers and landlords can opt to use an Identity Service Provider (IDSP) for these checks. However, manual checks of physical identity documents are still permitted for British and Irish nationals.

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New Publications and Items of Interest

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual to clarify voter registration access at its administrative naturalization ceremonies. The updated guidance: (1) affirms that USCIS provides access to voter registration services at each administrative naturalization ceremony, including information regarding points of contact for voting and voter registration; (2) provides that USCIS offices request that election officials from state or local government election offices attend ceremonies to distribute, collect, and review voter registration applications and to officially register new citizens to vote; (3) affirms that USCIS offices coordinate with nonpartisan, nongovernmental organizations for voter registration services when state and local government election officials are not available; and (4) provides that, to the extent feasible, USCIS offices invite governmental or nongovernmental organizations offering on-site voter registration services the opportunity to introduce themselves and address the naturalization candidates before the ceremony.

The Department of Homeland Security and the General Services Administration plan to use $288 million in Inflation Reduction Act funds to complete three construction projects: the relocation of the U.S. Cybersecurity & Infrastructure Security Agency (CISA) Headquarters and Immigration & Customs Enforcement (ICE) Headquarters to the St. Elizabeths campus in southeast Washington, DC, and building a new 1,500-space parking garage, the agencies announced on August 17, 2023. The new construction will provide additional office space for approximately 6,500 personnel, DHS said.

Immigration agency X (formerly Twitter) accounts:

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

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

Alliance of Business Immigration Lawyers:

  • ABIL is available on X (formerly Twitter): @ABILImmigration

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

Cyrus Mehta has authored a new blog post: “Although the October 2023 Visa Bulletin is Disappointing, the Administration Still Has the Option to Advance the Dates for Filing in the Next Visa Bulletin.”

Mr. Mehta and Kaitlyn Box have co-authored a new blog post: “NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them.”

Mr. Mehta was quoted in the Times of India on India’s visa suspension for Canadians: India’s Visa Suspension Will Have Limited Impact on Biz.

WR Immigration has published a new installment in its “Chatting with Charlie” series. WR Immigration Director of Visa Consulting Charlie Oppenheim, Partners Dan Maranci and Kimberley Best Robidoux, and Senior Attorney Laura Bloniarz discuss the latest insights on the October Visa Bulletin and fiscal year 2024 visa availability, and provide information regarding the new I-9 process.

Stephen Yale-Loehr was interviewed in a podcast about the New York migrant surge. Mr. Yale-Loehr discussed how local and federal leaders can work to manage the New York migrant surge and support individuals seeking refuge in the United States. He also discussed changes in migrant demographics, immigration statuses, complications of the U.S. immigration system, legal protections for migrants, labor shortages and work training programs, and funding for resources to address the migrant surge.

Mr. Yale-Loehr was quoted by Newsday in Venezuelan Migrants, Once Granted Federal TPS Protection, Could Seek Shelter on Long Island, in Other Counties. He noted that those with TPS can receive some public benefits but not others.

Mr. Yale-Loehr was quoted in the Christian Science Monitor in New York’s Immigrant Spirit Tested by Influx of Asylum-Seekers.

Mr. Yale-Loehr was quoted in the Gothamist about work permits for Venezuelans in the United States: Next Step for Venezuelan Migrants in NYC: Navigating the Bureaucracy.

Mr. Yale-Loehr was quoted in the New York Times in New York Considers State Work Permits for Migrants as Influx Worsens.

Mr. Yale-Loehr was quoted in the New York Daily News in NY Looking At ‘Unprecedented’ Plan to Give Migrants State Work Permits, Hochul Says.

Mr. Yale-Loehr was quoted in a Financial Times podcast about a prominent Russian banker who received asylum in the United States: The Russian Banker, Part 3: Asylum.

Mr. Yale-Loehr was quoted in a Politifact article about critics of Biden’s immigration policies: Who is responsible for helping migrants in Chicago and New York City? Leaders say Biden can do more?

Mr. Yale-Loehr was quoted in a Raw Story article about a federal judge declaring DACA illegal: ‘Dreamers’ deferred: Democrats are blowing the immigration debate and hurting kids by hiding.

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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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