In this issue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – August 2024

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

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

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

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

Details:

• USCIS notice (July 30, 2024).

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2. I-9 Expiration Date Extended

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

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

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

Details:

• USCIS notice (Aug. 2, 2024).

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

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

O-1A Visas: Applications and Approvals Increased

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

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

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

EB-2 Receipts Increased; Approvals Increased, Then Decreased

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

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

Details:

• STEM-Related Petition Trends: EB-2 and O-1A Categories FY 2018-FY 2023, USCIS (N.D.)
• O-1A Visas, National Interest Waivers Rise After Immigration Guidance, Forbes (July 30, 2024).

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

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

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

Details:

• DOS notice (Aug. 2, 2024).

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5. CIS Ombudsman Expands Nationwide Reach With Regional Representatives

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

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

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

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

Details:

• CIS Ombudsman statement (Aug. 2, 2024).

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

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

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

Details:

• DHS notice, 89 Fed. Reg. 59748 (July 23, 2024).

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

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

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

Details:

• White House memorandum (July 26, 2024).

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

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

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

USCIS will make the following adjustments:

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

Details:

• USCIS final rule, 89 Fed. Reg. 60298 (July 25, 2024).

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

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

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

Details:

• DOS notice (July 15, 2024).
• DOS Foreign Affairs Manual guidance (July 15, 2024).
• White House Fact Sheet (June 18, 2024).

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

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

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

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

Details:

• USCIS alert (July 16, 2024).

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

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

For example, USCIS noted that:

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

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

Details:

• USCIS FAQs for Individuals in H-1B Nonimmigrant Status (July 17, 2024).

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

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

TPS Extension and Redesignation

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

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

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

Work Authorization Relief for F-1 Nonimmigrant Students From Somalia

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

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

Details:

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

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13. USCIS Updates Public Information on International Entrepreneur Rule

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

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

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

Details:

• USCIS guidance (July 12, 2024).

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

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

TPS Extension and Redesignation for Yemen

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

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

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

Work Authorization Relief for F-1 Nonimmigrant Students From Yemen

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

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

Details:

• DHS notice of TPS extension and redesignation for Yemen, 89 Fed. Reg. 56765 (July 10, 2024).
• DHS notice of work authorization relief for Yemeni F-1 nonimmigrant students, 89 Fed. Reg. 56759 (July 10, 2024).
• DHS news release on Yemeni TPS (July 8, 2024).

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

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

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

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

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

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

Details:

• DHS proposed rule (U.S. Customs and Border Protection), 89 Fed. Reg. 48339 (June 6, 2024).
• AILA comment (July 8, 2024).

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

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

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

Details:

• USCIS 30-day notice, 89 Fed. Reg. 57159 (July 12, 2024).

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

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

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

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

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19. ABIL Global: France

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

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

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

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

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

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

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

Legislative Changes

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

Talent Passport Residence Permits

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

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

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

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

Regularization of Undocumented Workers in Short-Staffed Professions

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

Olympic Games 2024

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

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

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

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

Absence of Transposition of EU Blue Card Directive

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

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

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

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

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New Publications and Items of Interest

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

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

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

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

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

Immigration agency X (formerly Twitter) accounts:

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

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

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ABIL Member / Firm News

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

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

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

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

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

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

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

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

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

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

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

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Government Agency Links

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

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

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

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In this issue:

1. 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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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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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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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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