In this issue:

1. Uncertainty Reigns as Title 42 Ends; Mayorkas Announces New Rule, Other Measures – Responding to reports of a potential surge of migrants at the southern U.S. border spurred by reports of the imminent end of Title 42 restrictions, Secretary of Homeland Security Alejandro Mayorkas says the United States is ready.

2. ICE Extends Form I-9 Requirement Flexibility – Employers should complete all required physical inspections of identity and employment eligibility documents by August 30, 2023.

3. USCIS Is Providing Evidence of Status After Notice of Decisions From IJs and BIA – U.S. Citizenship and Immigration Services is now providing documented evidence of status to certain new asylees and lawful permanent residents after Board of Immigration Appeals and Immigration Judge decisions.

4. Work Authorization Extended, Expanded for Hong Kong DED Residents; Student Relief Announced – USCIS is automatically extending the validity of Hong Kong Deferred Enforced Departure-based employment authorization documents for eligible Hong Kong residents through February 5, 2025. Also, U.S. Immigration and Customs Enforcement announced that Hong Kong residents who were in lawful F-1 nonimmigrant student status as of January 26, 2023, may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status.

5. COVID-19 Vaccine Requirements Ending for International Travelers to United States – As of May 12, 2023, COVID-19 vaccines will no longer be required for international travelers entering the United States via air, land ports of entry, and ferry terminals.

6. DV Entrants Can Check Status Online as of May 6 – As of May 6, 2023, Diversity Visa entrants can check their status online using their unique confirmation number, to see if their entry was selected, the Department of State said.

7. E-Verify and SAVE Resume Services After Brief System Outage – Employers are once again able to fully access their E-Verify accounts and process cases, and benefit-granting agencies can access their SAVE accounts.

8. USCIS Announces Results of FY 2024 H-1B Initial Registration Period Amid Fraud Concerns – USCIS said that the large number of eligible registrations for beneficiaries with multiple eligible registrations, which was much larger than in previous years, “has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.

9. OFLC Posts ‘Unofficial’ Form ETA-9089 Preview Copy – The Department of Labor posted an “unofficial watermarked preview copy” of Form ETA-9089 “to allow stakeholders to become familiar with changes to the form.”

10. DHS, DOS Announce New Actions to Manage Regional Migration – The Departments of Homeland Security and State announced new measures “to further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants.”

11. DHS Changes Parole Process for Haitians, Cubans – Haitians and Cubans who have been interdicted at sea after April 27, 2023, are ineligible for the parole process implemented in January 2023.

12. DOS Suspends Visa Services in Sudan – On April 22, 2023, the U.S. Embassy in Khartoum suspended its operations, and DOS ordered the departure of U.S. direct-hire employees and their dependents due to the continued threat from armed conflict in Sudan.

13. CBP Requests Comments on Trusted Traveler Information Collection – U.S. Customs and Border Protection issued a 30-day notice requesting comments by May 30, 2023, on revisions to its information collection for its “Trusted Traveler” programs.

14. Employers May File H-2B Petitions for Late Second Half of FY 2023 – U.S. Citizenship and Immigration Services has begun accepting petitions for workers for the late second half of fiscal year 2023—those requesting employment start dates from May 15, 2023, to September 30, 2023—under the H-2B supplemental cap temporary final rule.

15. OFLC Reconsiders Denials Based on Question H.10-B ‘Acceptable Alternate Occupation Title’ on ETA-9089 – The Department of Labor’s Office of Foreign Labor Certification has stopped issuing denials for this issue for pending applications and “will not deny for this reason for any application submitted on or before May 30, 2023.”

16. Visa Bulletin for May Predicts Further Retrogressions in Some Employment-Based Categories – The Department of State’s Visa Bulletin for May 2023 includes a variety of updates.

17. ICE Announces Online Change-of-Address Form for Noncitizens – The new form gives noncitizens the option to update their address online in addition to the existing options of doing so by phone or in person at a field office. It will be deployed “in a rolling release with full availability anticipated in the coming weeks,” U.S. Immigration and Customs Enforcement said.

18. Biden Administration Plans to Expand Health Care Coverage to DACA Recipients – The Department of Health and Human Services will issue a proposed rule soon to expand the definition of “lawful presence” to include recipients of Deferred Action for Childhood Arrivals (DACA). The proposed rule would mean that DACA recipients would be eligible for Medicaid and the Affordable Care Act’s insurance exchanges.

19. DOS Publishes Notice on Ukrainian J-1 Student Relief – The Department of State is extending Special Student Relief to eligible Ukrainian students in the United States on J-1 visas “to help mitigate the adverse impact on them resulting from the full-scale Russian invasion of Ukraine that began on February 24, 2022.”

20. USCIS Allows Additional 30 Days for Comments on Revisions to Form I-829, Petition by Investor to Remove Conditions – U.S. Citizenship and Immigration Services said it may consider recommendations made in previous comments received on its December 2022 notice in a separate comprehensive revision.

21. USCIS Is Accepting Self-Identified Gender Markers for Immigration Benefits – U.S. Citizenship and Immigration Services is accepting a self-identified gender marker for individuals requesting immigration benefits. The gender marker they select does not need to match the gender marker indicated on their supporting documentation.

22. DHS Announces Six New Subcommittees for Homeland Security Advisory Council – The Department of Homeland Security expects that the subcommittees’ findings and recommendations will be submitted to the HSAC for its deliberation and vote during a public meeting in mid- to late summer 2023.

23. U.S. District Court Finds CBP Violated Rights of Pastor Ministering to Migrants – A U.S. district court ruled that U.S. Customs and Border Protection (CBP) violated the rights of an ordained senior pastor, Rev. Kaji Dousa, a U.S. citizen, who was providing pastoral support and conducting rituals for migrants along the U.S.-Mexico border, including religious marriage ceremonies with no legal effect.

24. ABIL Global: European Union, Belgium – The EU Entry-Exit System has been postponed once again. The right to apply for a “fast track” single permit in Belgium has been extended to several new categories. There are new rules for trainees and volunteers.

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 – May 2023

1. Uncertainty Reigns as Title 42 Ends; Mayorkas Announces New Rule, Other Measures

Responding to reports of a potential surge of migrants at the southern U.S. border spurred by reports of the imminent end of the Centers for Disease Control and Prevention’s Title 42 restrictions on May 11, 2023, Secretary of Homeland Security Alejandro Mayorkas says the United States is ready. Planned actions include a rule to deter smugglers that Mr. Mayorkas says will be finalized and implemented by May 11, and efforts to derail misinformation about open borders peddled by smugglers. “The border is not open, it has not been open and it will not be open subsequent to May 11,” he said.

Also, Mexico has agreed to continue accepting Venezuelan, Haitian, Cuban, and Nicaraguan migrants turned away at the U.S. border, and to allow Hondurans, Guatemalans, and Salvadorans with family in the United States to live and work in Mexico. The United States is also opening migration centers in several countries, initially Guatemala and Colombia, to allow would-be migrants to apply for a legal pathway to the United States, Canada, or Spain. The United States and Mexico issued a related joint statement on May 2, 2023.

The Department of Homeland Security has launched an app, CBP One, for those wishing to apply for a legal pathway to the United States, such as asylum. However, according to reports, there are problems with a lack of access to phones or internet service, technical issues, and difficulties in obtaining appointments. U.S. Customs and Border Protection (CBP) announced that it will implement measures to mitigate those issues, for example, by expanding the number of available appointments and prioritizing those who have been waiting the longest after setting up their profiles in the app.

Observers note that unauthorized border crossings and repeat crossings actually increased while Title 42 restrictions were in place, so its much-touted deterrent effect seems overrated. Many have called for comprehensive immigration reform legislation, although passage is unlikely in the current divided Congress.

Details:

·         “Mayorkas Says Biden Administration Has Targeted Smugglers and is Ready at the Border,” NBC News (May 5, 2023). https://www.nbcnews.com/news/latino/mayorkas-says-biden-administration-ready-title-42-expire-rcna83075

·         U.S., Mexico Agree on Tighter Immigration Policies at Border as Covid Restrictions End,” NBC News (May 3, 2023). https://www.nbcnews.com/politics/white-house/us-mexico-agree-tighter-immigration-policies-border-covid-restrictions-rcna82621

·         U.S.-Mexico joint statement (May 2, 2023). https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/

·         Biden Plan Aims to Stem Border Migration as Restrictions End,” Associated Press (Apr. 28, 2023). https://apnews.com/article/immigration-border-biden-asylum-75d8c0e67d5521fb48ac04f6bf017a49

·         “CBP Makes Changes to CBP One App,” CBP (May 5, 2023). https://www.cbp.gov/newsroom/national-media-release/cbp-makes-changes-cbp-one-app

• “Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration,” DHS (Apr. 27, 2023).

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2. ICE Extends Form I-9 Requirement Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced on May 4, 2023, that employers will have 30 days to comply with Form I-9, Employment Authorization Verification, requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE is encouraging employers to plan ahead to complete all required physical inspections of identity and employment eligibility documents by August 30, 2023.

Details:

• ICE news release (May 4, 2023). https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply

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3. USCIS Is Providing Evidence of Status After Notice of Decisions From IJs and BIA

U.S. Citizenship and Immigration Services (USCIS) announced on May 4, 2023, that it is now “affirmatively creating and providing documented evidence of their status to certain new asylees and lawful permanent residents upon our receiving notification that an immigration judge [IJ] or the Board of Immigration Appeals (BIA) has granted status.” USCIS said that by providing this evidence, “we can help ensure that new asylees and lawful permanent residents may seek employment, travel, and obtain other benefits they are entitled to,” USCIS said.

USCIS also said its field offices may now be able to provide this documentation by mail instead of having asylees and lawful permanent residents schedule an in-person appointment. USCIS began this effort in August 2022 by mailing Form I-94, Arrival/Departure Record, with asylee stamps to certain individuals who have been granted asylum by an IJ or the BIA. USCIS also has been issuing Permanent Resident Cards (green cards) to some lawful permanent residents when the agency is notified that the IJ or BIA has granted adjustment of status.

USCIS still instructs individuals granted asylum and lawful permanent resident status to contact the USCIS Contact Center to request proof of status because USCIS may not be notified in every case.

Details:

USCIS alert (May 4, 2023). https://www.uscis.gov/newsroom/alerts/uscis-providing-documents-after-notice-of-immigration-judge-and-bia-decisions-about-immigration

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4. Work Authorization Extended, Expanded for Hong Kong DED Residents; Student Relief Announced

Work Authorization Extended, Expanded for Hong Kong DED Residents; Student Relief Announced

On May 3, 2023, U.S. Citizenship and Immigration Services (USCIS) announced the extension and expansion of employment authorization under Deferred Enforced Departure (DED) for eligible Hong Kong residents. Also, U.S. Immigration and Customs Enforcement announced on May 4, 2023, that Hong Kong residents who were in lawful F-1 nonimmigrant student status as of January 26, 2023, may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status. An F-1 nonimmigrant student who receives employment authorization by means of the notice will be deemed to be engaged in a ‘”full course of study’” for the duration of the employment authorization if the nonimmigrant student satisfies the minimum course load requirement described in this notice.

The DED notice explains how eligible residents of Hong Kong may apply for Employment Authorization Documents (EADs). Eligible Hong Kong residents covered under DED as of January 26, 2023, may remain in the United States through February 5, 2025, and are eligible to work in the United States.

Specifically, USCIS is automatically extending the validity of Hong Kong DED-based EADs through February 5, 2025, for those who already have an EAD with an A-11 category code on the card and an expiration date of February 5, 2023. These EADs remain valid even though the expiration date on the face of the card has passed. An individual does not need to apply for a new EAD to benefit from this automatic EAD extension. Individuals who want a new DED-based EAD showing an expiration date of February 5, 2025, must file Form I-765, Application for Employment Authorization.

There is no application for DED. Hong Kong residents are covered under DED based on the terms described in the President’s directive issued in January 2023.

USCIS noted that the Department of Homeland Security may provide travel authorization at its discretion to those covered under DED for Hong Kong. Individuals who wish to travel outside of the United States based on DED must file Form I-131, Application for Travel Document, to request advance parole.

Details:

• USCIS alert (May 3, 2023). https://www.uscis.gov/newsroom/news-releases/uscis-extends-and-expands-employment-authorization-for-hong-kong-residents-covered-by-ded
• USCIS notice, 88 Fed. Reg. 28589 (May 4, 2023). https://www.govinfo.gov/content/pkg/FR-2023-05-04/pdf/2023-09507.pdf

DHS notice, 88 Fed. Reg. 28584 (May 4, 2023). https://www.govinfo.gov/content/pkg/FR-2023-05-04/pdf/2023-09512.pdf

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5. COVID-19 Vaccine Requirements Ending for International Travelers to United States

As of May 12, 2023, COVID-19 vaccines will no longer be required for international travelers entering the United States via air, land ports of entry, and ferry terminals. The Biden administration said the rescission of these travel restrictions were in alignment with the end of the Public Health Emergency scheduled for May 11, 2023.

Details:

• DHS Statement on the Lifting of Title 19 Requirements (May 2, 2023).
• White House statement (May 1, 2023)

CDC statement (May 5, 2023)

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6. DV Entrants Can Check Status Online as of May 6

As of May 6, 2023, Diversity Visa (DV) entrants can check their status online at Entrant Status Check, using their unique confirmation number, to see if their entry was selected, the Department of State said.

The Department of State (DOS) noted that it accepts DV entries only through the E-DV site, which has instructions (entries are not being accepted now). All entrants must print and retain their online confirmation page after completing their DV entries so they can check their entry status, DOS said: “It is very important for entrants to keep a record of their unique confirmation number until at least September 30, 2024. The confirmation number is the only way to check whether an entry has been selected.”

DV-2023 entrants have until September 30, 2023, to check the status of their entries through the website. DV-2024 entrants may enter their confirmation information as of noon (ET) May 6, 2023. The DV-2024 registration period closed on November 8, 2022.

Details:

DOS Electronic Diversity Visa Program. https://dvprogram.state.gov/

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7. E-Verify and SAVE Resume Services After Brief System Outage

U.S. Citizenship and Immigration Services (USCIS) announced to stakeholders on May 3, 2023, that E-Verify and Systematic Alien Verification for Entitlements (SAVE) service has been restored after a brief system outage. Employers are once again able to fully access their E-Verify accounts and process cases, and benefit-granting agencies can access their SAVE accounts.

USCIS reminded employers that E-Verify cases must be created no later than the third business day after the employee starts work for pay. If the case is being created three or more days past the employee’s first day of employment due to the system outage, the employer must select “Technical Problems” as the reason for the delay when creating the case.

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8. USCIS Announces Results of FY 2024 H-1B Initial Registration Period Amid Fraud Concerns

U.S. Citizenship and Immigration Services (USCIS) announced the results of the fiscal year (FY) 2024 H-1B initial registration period and expressed concerns about fraud.

During the registration period for the FY 2024 H-1B cap, USCIS saw a significant increase in the number of registrations submitted compared to prior years. For FY 2024, total registrations were 780,884, with 110,791 registrations selected. For FY 2023, there were 483,927 total registrations, with 127,600 selected. The total number of H-1B visas that can be issued each year is 85,000.

USCIS said that the large number of eligible registrations for beneficiaries with multiple eligible registrations, which was much larger than in previous years, “has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary. This may have unfairly increased their chances of selection.” USCIS said that each petitioner signs an attestation under penalty of perjury, and that if the agency finds that the attestation was not true and correct, it may deny the petition or revoke approval, and may refer the petitioner for investigation and law enforcement action. “Based on evidence from the FY 2023 and FY 2024 H-1B cap seasons, USCIS has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating law enforcement referrals for criminal prosecution,” the agency said.

The American Immigration Lawyers Association (AILA) noted that an “eye-popping 408,891 registration applications were for individuals on whose behalf multiple employers submitted a registration, a 147% increase in multiple registrations from last fiscal year.” AILA President Jeremy McKinney said, “These numbers starkly highlight both how the H-1B system doesn’t meet legitimate demand, and how the registration system has been left vulnerable to exploitation.” AILA called for measures including ensuring that every available visa is used; promulgating a rule by USCIS and the Department of State to change how the H-1B lottery is run, basing it on individuals with bona fide job offers rather than registrations; and executing USCIS’s announced plan to thoroughly investigate and, if appropriate, prosecute those who submit fraudulent registrations.

Details:

·         “USCIS Announces FY 2024 H-1B Registration Numbers,” AILA (Apr. 28, 2023). https://www.aila.org/infonet/uscis-announces-fy2024-h-1b-registration-numbers

·         “H-1B Visa Registration Numbers Show Demand Far Exceeds Supply; Changes Are Necessary to Ensure Integrity of the System,” AILA (Apr. 28, 2023). https://www.aila.org/advo-media/press-releases/2023/h-1b-visa-registration-numbers

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9. OFLC Posts ‘Unofficial’ Form ETA-9089 Preview Copy

After the Department of Labor’s Office of Labor Certification (OFLC) announced on April 21, 2023, that it will begin accepting the revised Form ETA-9089, Application for Permanent Employment Certification, in the Foreign Labor Application Gateway (FLAG) system on May 16, 2023, OFLC posted an “unofficial watermarked preview copy” of the form “to allow stakeholders to become familiar with changes to the form.”

OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 pm ET. OFLC also will no longer accept the previous version of Form ETA-9089 after May 15, 2023, either electronically or by mail.

OFLC said that the preview copy of the form and appendices are for informational purposes only. “These versions of the form and appendices may not be submitted to OFLC at any time; any submission to OFLC using these forms will be rejected.” OFLC said it will post on its Forms page (https://www.dol.gov/agencies/eta/foreign-labor/forms) the official, fillable PDF versions of the Form ETA-9089 and its appendices on May 16, 2023.

Details:

·         “OFLC Posts Unofficial Watermarked Preview Copy of Revised Form ETA-9089 to Allow Stakeholders to Become Familiar With Changes to the Form,” OFLC (Apr. 27, 2023). https://www.dol.gov/agencies/eta/foreign-labor

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10. DHS, DOS Announce New Actions to Manage Regional Migration

On April 27, 2023, the Departments of Homeland Security (DHS) and State (DOS) announced new measures “to further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants.” DHS said the measures will be implemented “in close coordination with regional partners, including the governments of Mexico, Canada, Spain, Colombia, and Guatemala.”

DHS noted that the Centers for Disease Control and Prevention’s (CDC) temporary Title 42 public health order will lift at 11:59 p.m. on May 11, 2023, and that the United States will return to Title 8 immigration authorities at that time. Individuals who cross into the United States at the southwest border without authorization or having used a lawful pathway, and without having scheduled a time to arrive at a port of entry, would be presumed ineligible for asylum under a new proposed regulation, absent an applicable exception.

The measures announced on April 27, 2023, include imposing stiffer consequences for failing to use lawful pathways; humanely managing migration flows with regional partners; and facilitating safe, orderly, and humane processing of migrants, DHS said. Some key measures and additional lawful pathways being implemented include:

• Expanded access to the CBPOne mobile application for migrants in Central and Northern Mexico, who can use it to schedule an appointment to present themselves at a port of entry rather than trying to enter between ports;
• New family reunification parole processes for El Salvador, Honduras, and Guatemala, and modernizing existing family reunification processes for Cuba and Haiti;
• Doubling the number of refugees admitted from the Western Hemisphere;
• Continuing to accept up to 30,000 individuals per month from Venezuela, Nicaragua, Cuba, and Haiti under expanded parole processes;
• Opening regional processing centers across the Western Hemisphere to facilitate access to lawful pathways; and
• Launching an aggressive 60-day anti-smuggling campaign in the Darien corridor.

Details:

• “Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration,” DHS (Apr. 27, 2023).

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11. DHS Changes Parole Process for Haitians, Cubans

The Department of Homeland Security announced that Haitians and Cubans who have been interdicted at sea after April 27, 2023, are ineligible for the parole process implemented in January 2023.

As described in the January 2023 notice, to be eligible, individuals must: (1) have a supporter in the United States who agrees to provide financial support for the duration of the beneficiary’s parole period; (2) pass national security and public safety vetting; (3) fly at their own expense to an interior port of entry (POE), rather than entering at a land POE; and (4) possess a valid, unexpired passport.

In addition to the amendment above rendering those interdicted at sea ineligible, individuals are ineligible for this process if they have been ordered removed from the United States within the prior five years; have entered unauthorized into Mexico or Panama after January 9, 2023; have entered unauthorized into the United States between POEs after January 9, 2023 (except for individuals permitted a single instance of voluntary departure or withdrawal of their application for admission to still maintain their eligibility for this process); or are otherwise deemed not to merit a favorable exercise of discretion.

Details:

• DHS notices, 88 Fed. Reg. 26327 (Haiti) and 26329 (Cuba) (Apr. 28, 2023).

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12. DOS Suspends Visa Services in Sudan

The U.S. Embassy in Khartoum is no longer providing nonimmigrant or immigrant visa services in Sudan due to the current security situation, the Department of State (DOS) announced. On April 22, 2023, the U.S. Embassy suspended its operations, and DOS ordered the departure of U.S. direct-hire employees and their dependents due to the continued threat from armed conflict in Sudan.

All immigrant and diversity visa interviews are canceled until further notice. Inquiries about pending post-interview immigrant visa cases can be emailed to [email protected]. DOS said that emailbox will be unmonitored “until we can begin to resume normal or alternative operations,” however. The embassy also is “unable to conduct passport or document passback at this time.”  Applicants for U.S. nonimmigrant visas may apply in any country in which they are physically present and where appointments are available.

Details:

• DOS notice (Apr. 24, 2023)

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13. CBP Requests Comments on Trusted Traveler Information Collection

On April 28, 2023, U.S. Customs and Border Protection (CBP) issued a 30-day notice requesting comments on revisions to its information collection for its “Trusted Traveler” programs. They include the Secure Electronic Network for Travelers Rapid Inspection (SENTRI), which allows dedicated processing at specified southwest land border ports of entry; the Free and Secure Trade program (FAST), which provides dedicated processing for known, low-risk commercial drivers; and Global Entry (GE), which allows pre-approved, low-risk, air travelers dedicated processing clearance upon arrival into the United States.

The purpose of all of these programs is to provide prescreened travelers dedicated processing into the United States. The benefit to the traveler is less time spent in line waiting to be processed. This information collection also includes the U.S. APEC Business Travel Card (ABTC) Program, which is a voluntary program that allows U.S. citizens to use fast-track immigration lanes at airports in the 20 other Asia Pacific Economic Cooperation (APEC) member countries.

These collections of information include the data collected on the applications and kiosks for these programs. Applicants may apply to participate in these programs by using the Trusted Traveler Program Systems website (TTP) at https://ttp.cbp.dhs.gov/ or at Trusted Traveler Enrollment Centers. After arriving at the Federal Inspection Services area of the airport, participants in Global Entry can undergo a self-serve inspection process using a Global Entry kiosk, which are being transitioned to GE Portals. During the self-service inspection, participants have their photograph and fingerprints taken, submit identifying information, and answer several questions about items they are bringing into the United States.

Comments must be submitted by May 30, 2023.

Details:

• CBP notice, 88 Fed. Reg. 26325 (Apr. 28, 2023). https://www.govinfo.gov/content/pkg/FR-2023-04-28/pdf/2023-09024.pdf

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14. Employers May File H-2B Petitions for Late Second Half of FY 2023

On April 13, 2023, U.S. Citizenship and Immigration Services (USCIS) began accepting petitions for workers for the late second half of fiscal year (FY) 2023—those requesting employment start dates from May 15, 2023, to September 30, 2023—under the H-2B supplemental cap temporary final rule. USCIS said the 10,000 visas available under this allocation are limited to returning workers who were issued H-2B visas or held H-2B status in FYs 2020, 2021, or 2022, regardless of country of nationality. These supplemental visas are available “only to U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition, as attested by the employer on a new attestation form,” USCIS noted.

The temporary final rule published in December 2022 increased the numerical limit (cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of FY 2023. Of the 64,716 additional visas, 44,716 are available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years). The remaining 20,000 visas are set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti, who are exempt from the returning worker requirement. As of April 10, 2023, USCIS had received petitions requesting 11,537 workers under the 20,000 visas set aside for nationals of those countries.

USCIS said that petitions requesting supplemental allocations under the rule must be filed at the California Service Center. Such petitions filed “at any location other than the California Service Center will be rejected and the filing fees will be returned.”

Details:

• USCIS alert (Apr. 10, 2023). https://www.uscis.gov/newsroom/alerts/employers-may-file-h-2b-petitions-for-fy-2023-late-second-half-returning-workers
• Temporary final rule, 87 Fed. Reg. 76816 (Dec. 15, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-15/pdf/2022-27236.pdf

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15. OFLC Reconsiders Denials Based on Question H.10-B ‘Acceptable Alternate Occupation Title’ on ETA-9089

The Department of Labor’s Office of Foreign Labor Certification (OFLC) posted an announcement on April 14, 2023, regarding recent permanent labor certification applications that were denied where the employer did not explicitly answer the question in field H.10-B of Form ETA-9089, Application for Permanent Employment Certification.

OFLC said it has “thoroughly reviewed” past and current permanent labor certification (PERM) applications with respect to how question H.10-B on the Form ETA-9089 has been completed. As a result of this review, OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles. Rather, they include statements such as “see H.14 – Special Skills.” OFLC has recently denied such applications for being incomplete.

OFLC evaluated these denials and determined that while they are “appropriate,” it has stopped issuing denials for this issue for pending applications and “will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue.”

OFLC said it recognizes that “as it transitions to the updated version of Form ETA-9089, which will incorporate Form ETA-9141 into PERM applications, there may be questions about whether employers should alter how they complete Form ETA-9141 as a result of this announcement. OFLC is considering that issue and will issue guidance in the near future if we determine that such guidance is necessary.”

Details:

• OFLC announcement (scroll to April 14, 2023). https://www.dol.gov/agencies/eta/foreign-labor

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16. Visa Bulletin for May Predicts Further Retrogressions in Some Employment-Based Categories

The Department of State’s Visa Bulletin for May 2023 includes a variety of updates:

• Retrogression is likely in the final action dates for China and India in EB-1 visa number availability in the coming months.
• EB-2 final action dates for the Rest of World, Mexico, and Philippines categories have retrogressed further to 15FEB22 due to higher-than-expected demand, following retrogression in April.
• The India EB-2 and EB-5 final action dates will retrogress “as early as next month” to keep visa issuances within their annual per-country limits. “Every effort will be made in October to return the final action dates to at least the final action dates announced for April,” the bulletin says.
• The EB-3 final action date of 01JUN22 is effective in May for the Rest of World, Mexico, and Philippines.
• “[F]urther corrective action” is likely in the final action dates for the EB-3 “Other Workers” category for the Rest of World, Mexico, and Philippines in the coming months.

Details:

Dept. of State Visa Bulletin for May 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-may-2023.html

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17. ICE Announces Online Change-of-Address Form for Noncitizens

U.S. Immigration and Customs Enforcement (ICE) announced a new online change-of-address form for noncitizens. The new form gives noncitizens the option to update their address online in addition to the existing options of doing so by phone or in person at a field office. It will be deployed “in a rolling release with full availability anticipated in the coming weeks,” ICE said.

After successfully entering a valid mailing address, if the noncitizen is currently in removal proceedings, the interactive online form will show the noncitizen information on how to also change their address with the immigration court as required. Noncitizens who are eligible for but have not yet received a Notice to Appear, meaning those who were released on conditional parole with an alternative to detention, may be prompted to state whether they want to receive their Notice to Appear by mail or in person by scheduling an appointment at an Enforcement and Removal field office.

The new online form “will enable noncitizens to comply with their immigration obligations more easily and improve the accuracy of address information reported to ICE by utilizing address autofill to ensure U.S. Postal Service standardization,” ICE said.

Details:

ICE news release (Apr. 6, 2023). https://www.ice.gov/news/releases/ice-announces-online-tool-noncitizens-provide-change-address

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18. Biden Administration Plans to Expand Health Care Coverage to DACA Recipients

On April 13, 2023, the White House announced that the Department of Health and Human Services (HHS) will issue a proposed rule to expand the definition of “lawful presence” to include recipients of Deferred Action for Childhood Arrivals (DACA), known as “Dreamers.” According to reports, the proposed rule would mean that DACA recipients would be eligible for Medicaid and the Affordable Care Act’s insurance exchanges.

About a third of DACA recipients do not have access to health insurance, according to HHS Secretary Xavier Becerra. There are approximately 580,000 current DACA recipients.

Details:

• “Biden Announces Plan to Expand Health Care Coverage for DACA Recipients,” ABC News (Apr. 13, 2023). https://abcnews.go.com/Politics/biden-announces-plan-expand-health-care-coverage-daca/story?id=98561711
• Tweet and video, President Biden (Apr. 13, 2023). https://twitter.com/POTUS/status/1646514773042032640

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19. DOS Publishes Notice on Ukrainian J-1 Student Relief

Under the Exchange Visitor Program regulations, the Department of State’s (DOS) Assistant Secretary for Educational and Cultural Affairs published a notice on April 5, 2023, waiving and modifying certain regulatory requirements with respect to a temporary educational and cultural exchange program established for Ukrainian J-1 students in the United States. DOS said it is extending Special Student Relief to eligible Ukrainian students in the United States on J-1 visas “to help mitigate the adverse impact on them resulting from the full-scale Russian invasion of Ukraine that began on February 24, 2022.”

DOS explained that many exchange visitors from Ukraine dependent upon financial support originating in their home country have limited or no access to funds, and others may have difficulty returning home. The agency said it took this action “to ameliorate hardship arising from lack of financial support and to facilitate these students’ continued studies in the United States.”

The action is effective retroactively from August 18, 2022, until October 23, 2023, “unless the U.S. Government unilaterally ends the arrangement early or the U.S. Government and the Government of Ukraine together extend its termination date.” In that case, DOS will publish a notice in the Federal Register of the termination date, the agency said.

Individuals eligible for Special Student Relief must have continuously resided in the United States since April 11, 2022. Special Student Relief with respect to program status and employment for J-1 Ukrainian students does not apply to Federal Work-Study jobs, DOS said.

Details:

DOS notice, 88 Fed. Reg. 20202 (Apr. 5, 2023). https://www.govinfo.gov/content/pkg/FR-2023-04-05/pdf/2023-07021.pdf

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20. USCIS Allows Additional 30 Days for Comments on Revisions to Form I-829, Petition by Investor to Remove Conditions

U.S. Citizenship and Immigration Services (USCIS) is allowing an additional 30 days, until May 5, 2023, for comments on revisions to Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.

USCIS said it may consider recommendations made in previous comments received on its December 2022 notice in a separate comprehensive revision. The revisions proposed through the December notice were limited to updating the Certification section and minor grammar changes, USCIS said.

Details:

• USCIS 30-day notice, 88 Fed. Reg. 20177 (Apr. 5, 2023). https://www.govinfo.gov/content/pkg/FR-2023-04-05/pdf/2023-07013.pdf
• Original USCIS 60-day notice, 88 Fed. Reg. 79345 (Dec. 27, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-27/pdf/2022-28152.pdf

Comments on December 2022 notice. https://www.regulations.gov/document/USCIS-2006-0009-0070/comment

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21. USCIS Is Accepting Self-Identified Gender Markers for Immigration Benefits

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is accepting a self-identified gender marker for individuals requesting immigration benefits. The gender marker they select does not need to match the gender marker indicated on their supporting documentation.

The update also clarifies that people requesting benefits do not need to submit proof of their gender identity when submitting a request to change their gender marker, except for those submitting an application for a replacement naturalization/citizenship document.

Currently, the only gender markers available are “Male” (M) or “Female” (F). The Department of Homeland Security (DHS) is working on options to include an additional gender marker (“X”) for another or unspecified gender identity. USCIS said it will update its forms and its Policy Manual accordingly.

In April 2021, DHS published a request for public feedback on barriers to USCIS benefits and services. Responses indicated that the evidentiary requirements associated with gender marker changes created barriers for individuals requesting immigration benefits, USCIS said.

Those seeking to change their gender marker after their initial filings should refer to the Updating or Correcting Your Documents webpage.

Details:

USCIS alert, Mar. 31, 2023. https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-guidance-on-self-selecting-a-gender-marker-on-forms-and-documents

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22. DHS Announces Six New Subcommittees for Homeland Security Advisory Council

The Department of Homeland Security (DHS) announced six new subcommittees for its Homeland Security Advisory Council (HSAC). HSAC comprises leaders in local law enforcement; first responders; state, local and tribal governments; national policy; the private sector; and academia. DHS said the notice is “not a solicitation for membership.”

Topics for the new subcommittees will include (1) development of DHS’s artificial intelligence (AI) strategy, to be divided into two subcommittees: one on how DHS can best use AI to advance critical missions, and one on how DHS can build defenses to the nefarious use of AI; (2) potential revisions to grant programs, including risk methodology, in light of the changed threat landscape over the past 20 years; (3) a review of the immigration Alternatives to Detention programs and recommendations to modernize them and make them more effective; and (4) potential revisions to the DHS workplace and workforce skill set, to be divided into two subcommittees: one to review DHS’s current diverse work environments, from secure spaces and ports of entry to remote offices, and make recommendations for the workplace of the future; and one to assess the alignment of workforce skills with work responsibilities in discrete, critical mission areas.

DHS expects that the subcommittees’ findings and recommendations will be submitted to the HSAC for its deliberation and vote during a public meeting in mid- to late summer 2023.

Details:

• DHS notice, 88 Fed. Reg. 19969 (Apr. 4, 2023). https://www.govinfo.gov/content/pkg/FR-2023-04-04/pdf/2023-06959.pdf

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23. U.S. District Court Finds CBP Violated Rights of Pastor Ministering to Migrants

A U.S. district court ruled that U.S. Customs and Border Protection (CBP) violated the rights of an ordained senior pastor, Rev. Kaji Dousa, a U.S. citizen, who was providing pastoral support and conducting rituals for migrants along the U.S.-Mexico border, including religious marriage ceremonies with no legal effect. The pastor was a member of the Global Entry program. She was active in making television and media appearances in which she discussed immigration issues, and met with local, state, and federal political representatives to discuss public policy and legislative issues related to immigration, the court noted. She participated in a “caravan” to provide aid and support to migrants in Mexico gathered near the border.

In January 2019, Rev. Dousa was detained at the border by U.S. Customs and Border Protection (CBP) agents in secondary inspection after she crossed into the United States from Mexico at the San Ysidro port of entry, then let go after about 43 minutes of questioning. The CBP “field encounter” report said there was no derogatory information found during the interview. Despite that, derogatory information was included in her records. Among other things, a CBP agent had emailed the Mexican government in December 2018 on behalf of CBP to request that Rev. Dousa be denied entry to Mexico and sent back to the United States. Various CBP actions had a chilling effect and substantially burdened her ministry in Mexico, she said.

The court found that Rev. Dousa’s activities were constitutionally protected activity, and that the CBP agent’s email to the Mexican government in 2018 constituted retaliation against her in violation of her First Amendment rights and violated her right to freely exercise her religion. The court also found that CBP violated the Religious Freedom Restoration Act. The court said she was entitled to recover at least some reasonable costs and attorneys’ fees but deferred ruling on the amount, pending receipt of additional briefings from the parties.

Details:

• Order, U.S. District Court, Southern District of California, 3:19-cv-01255-TWR-KSC (Mar. 21, 2023). https://www.documentcloud.org/documents/23728387-dousa-ruling

“Pastor Wins Civil Rights Suit Against Trump Administration Border Surveillance,” The Intercept (Mar. 28, 2023). https://theintercept.com/2023/03/28/dhs-cbp-border-surveillance-kaji-dousa/

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24. ABIL Global: European Union, Belgium

The EU Entry-Exit System has been postponed once again. The right to apply for a “fast track” single permit in Belgium has been extended to several new categories. There are new rules for trainees and volunteers.

EU Entry Exit System (EES) Postponed to End of 2023

The European Union (EU) Entry Exit System (EES), which was initially intended to become operative in 2022 and later in May 2023, is now due to be implemented by the end of 2023. EES is a large-scale IT system to enable the electronic recording of entries and exits of third-country nationals (TCNs) to and from the Schengen Area. The system will replace the current practice of manual stamping of passports.

Right to Apply for “Fast-Track” Single Permit in Belgium Extended to New Categories

As a general rule, third-country (non-European Economic Area [EU plus Iceland, Liechtenstein, and Norway] and non-Swiss) nationals who want to work in Belgium for longer than 90 days need a single permit. “Fast-track” single permit applications can be filed while a third-country national resides in Belgium. Fast-track applications are those for which no resident labor test is required. Previous restrictive legislation reserved the right to apply in Belgium to a few categories only (short-term foreign nationals, long-term students, long-term researchers).

A new act now allows several other categories of foreigners to apply for a fast-track single permit while residing in Belgium, including family members of single permit holders and foreign nationals with temporary protection status (in practice, Ukrainian nationals). Ukrainian nationals with temporary protection status in Belgium were already entitled to work on the basis of their status, but they can now switch to employee status in-country: their employer can apply for a single permit while the Ukrainian national resides in Belgium.

New Rules for Trainees and Volunteers

Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects, and au pairing was partially implemented. New rules for trainees and volunteers became effective as of January 1, 2023.

Trainees

Some third-country trainees can invoke a single permit exemption. For example, students who follow a mandatory internship in Belgium as part of their studies in Belgium, Switzerland, or an EEA country are exempt. If no exemption can be invoked, a single permit for long-term employment in Belgium will be required.

There are some important changes compared to the previous regulations:

• There is no longer an age requirement, which used to be at least 18 and not older than 30;
• The trainee does not need to hold a higher education degree. It is sufficient to pursue a course of study leading to higher education;
• Sufficient means of subsistence are still required, but the guaranteed minimum wage is no longer mentioned as a threshold amount. The integration/benefit income for a single person (at present 1,214.13 euros/month) appears to be the threshold. The payments that will be made to the trainee can be taken into account, as well as the fact that the host entity guarantees sufficient means of subsistence for the trainee.

The maximum duration of the single permit depends on the duration of the underlying work authorization but cannot exceed six months; renewal up to 12 months may be possible, depending on the location of employment. Work authorizations are issued by the region of employment. Belgium has three regions: Brussels, Flanders, and Wallonia. The location of employment determines the applicable rules.

Volunteers

Volunteer work can now be invoked as a legal basis for work-related migration to Belgium. The maximum duration of the single permit depends on the duration of the underlying work authorization but cannot exceed 12 months. Again, the location of employment determines the applicable rules.

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New Publications and Items of Interest

New York Times exposé on migrant child labor in the United States. The New York Times conducted an investigation into the surge in migrant child labor law abuses in the United States.

• Video of interview with Hannah Dreier, investigative journalist for the New York Times, and Gregory Chen, senior director of government relations for the American Immigration Lawyers Association: https://video.snapstream.net/Play/9qsXQlab5zEBgVWBaeDY5w?accessToken=d135z7swb6er7
• Transcript of interview: https://video.snapstream.net/View/Transcript/9qsXQlab5zEBgVWBaeDY5w?accessToken=d135z7swb6er7
• New York Times article (available by subscription): https://www.nytimes.com/2023/02/25/us/unaccompanied-migrant-child-workers-exploitation.html

Agency Twitter accounts:

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

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was quoted by Bloomberg in ” ‘I Expected to Work in an Office’: Engineers Recruited by Carmakers End Up on the Assembly Line.” Mr. Kuck said that legally hiring foreign line workers is difficult at best because “there is not a manual labor visa to do those kinds of jobs.” https://www.bloomberg.com/news/articles/2023-04-25/engineers-from-mexico-on-assembly-lines-instead-of-us-south-car-industry#xj4y7vzkg?leadSource=uverify%20wall

Mr. Kuck was quoted by The New Republic‘s “Soapbox” in “You Know Who Won’t Miss Susan Rice? Immigration Advocates.” The article says that migrant advocates hope that the departure of Susan Rice, the Biden administration’s chief domestic policy adviser, will lead the Biden administration down a new and more humane path. The article quotes Mr. Kuck’s tweet: “I cannot think of happier news for those interested in fixing the immigration nightmare. Getting rid of Susan Rice is step one!” https://newrepublic.com/article/172164/susan-rice-departure-immigration-reset

Mr. Kuck authored a new blog post: “The Farcical H-1B Lottery for FY 2024.”

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored several new blog posts: “Ethical Considerations When the Removal Case is Dismissed,” http://blog.cyrusmehta.com/2023/04/ethical-considerations-when-the-removal-case-is-dismissed.html; and “Second Circuit Upholds Trump Era Interpretation on Administrative Closure Even Though Biden Has Changed It. Does This Leave Open Possibility that Biden Era Interpretation May Also Be Upheld if Future Administration Changes It?”

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) will become a partner at Vialto Law on June 1, 2023. Vialto notes that Angelo’s career has brought him many accolades, including a 1st ranking among Chambers USA Band 1 Lawyers and a three-time award as the World’s Leading Corporate Immigration Lawyer in annual peer rankings of the International Who’s Who of Corporate Lawyers. Mr. Paparelli received the Edith Lowenstein Award for Advancing the Practice of Immigration Law and is the first management-side immigration lawyer ever inducted into the College of Labor and Employment Lawyers. He is frequently quoted on immigration law issues in the New York Times, the Wall Street Journal, Immigration Law360, and other leading publications. He has advised some of the largest companies in the world, helping to solve complex immigration issues and craft program-wide immigration strategies. His reputation has made him a trusted advisor to senior policymakers

WR Immigration recently presented a webinar, “Alternatives to the H-1B Lottery.” Charina Garcia and Audrey Lustgarten discussed what to do when considering global alternatives, including alternative U.S. options, a review of immigration options to confirm eligibility, non-immigration factors, and more. https://wolfsdorf.com/webinar-alternatives-to-the-h-1b-lottery/

WR Immigration has published “April Visa Bulletin Shows Worldwide EB-4 Backlog of 5+ Years, EB-2 Retrogression.” https://wolfsdorf.com/immigration-update_04042023/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by Courthouse News Service in “Title 42 Ends Next Week, Leaving Questions About the Future of U.S. Immigration Policy.” Commenting on the imminent end of Title 42, Mr. Yale-Loehr said, “Certainly it will prevent some people from applying for asylum. It would restrict asylum seekers in major ways. There are a lot of unknowns.” He said that he expects legal challenges to the new proposed rules if they are implemented, especially the rule denying people asylum claims if they cross the border before being granted permission. Legal challenges could come from border states like Texas, or Congress may take action, he noted. https://www.courthousenews.com/title-42-will-end-next-week-leaving-questions-about-the-future-of-us-immigration-policy/

Mr. Yale-Loehr was quoted by CBS News in “Biden Administration Asks Judge to Limit DACA Ruling If He Finds ‘Dreamer’ Protections Unlawful.” Mr. Yale-Loehr said the government’s latest filing in litigation by Texas challenging the Deferred Action for Childhood Arrivals (DACA) program was an attempt by the Biden administration to “minimize” the scope of the judge’s ruling. “Based on his past rulings, Judge Hanen is likely to rule that the DACA program is unlawful.” He said the judge could agree to pause his ruling pending an appeal. The Biden administration, he noted, would likely appeal a ruling against DACA to the 5th Circuit and ultimately the Supreme Court. “The bottom line is that this still has a long way to go before there’s a final resolution. I think the earliest that we may get a final decision by the Supreme Court would be June of 2024, and even that may be premature.” https://www.cbsnews.com/news/daca-ruling-judge-texas-justice-department-dreamers/

Mr. Yale-Loehr was quoted by the Cornellians Magazine in an article about the interdisciplinary Cornell Migrations Initiative, “With ‘Migrations,’ Big Red Scholars Navigate a World in Motion.” Mr. Yale-Loehr said, “We have more migration across the world today than we ever have in the past, and it’s going to continue. We need to understand how all these different kinds of migration affect and relate to each other—that’s why it’s so important to study this from an interdisciplinary and interspecies approach.” The article notes that most Migrations-supported research has been heavily rooted in the social sciences. For example, when Mr. Yale-Loehr wanted to assess the awareness of public health care benefits among immigrants, he partnered with a Migrations colleague on a qualitative survey. Their work resulted in RightsforHealth, a website where immigrants can easily research health benefits for which they may be eligible. https://alumni.cornell.edu/cornellians/migrations/

Mr. Yale-Loehr was quoted by Marketplace in “As Summer Approaches, Labor Shortages Make Summer Hiring Tough.” He said that consumers will notice labor shortages “in terms of increased prices. When you go to a restaurant, because there’s not enough workers, you’re going to see it in terms of reduced hours” at restaurants and at the community recreation center, for example. https://www.marketplace.org/2023/04/14/labor-shortages-make-seasonal-hiring-tough-summer/

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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 Reaches H-2B Cap for Second Half of FY 2023, 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 FY 2023. USCIS also announced the filing dates for supplemental H-2B visas for the remainder of FY 2023 made available under the FY 2023 H-2B supplemental visa temporary final rule.

2. USCIS to Start Collecting Hefty Fees for ‘EB-5 Integrity Fund’ – The fee is $20,000 for regional centers with more than 20 investors and $10,000 for those with 20 or fewer investors.

3. DOS Issues Final Rule Updating Regulation on Signed Photos for Visa Processing – The final rule clarifies that immigrant and nonimmigrant visa applicants may upload digital photographs electronically as part of the online visa application process in lieu of submitting ink-signed photographs.

4. USCIS Updates Guidance on On-Site Inspections for Religious Worker Petitions – For special immigrant and nonimmigrant religious worker petitions, the guidance explains that USCIS randomly selects religious worker petitions for on-site inspections, which normally occur after the approval of the petition, and which include inspections of the work locations to verify the religious worker’s work hours, compensation, and duties.

5. DOL Final Rule Revises AEWR Methodology for H-2A Non-Range Occupations – The Department of Labor issued a final rule effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates for non-range occupations (i.e., all occupations other than herding and production of livestock on the range).

6. USCIS Issues Guidance on Eligibility for O-1B Visa Classification – USCIS clarified how it evaluates evidence to determine eligibility for O-1B nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television industry.

7. Biden Administration Proposes Controversial Rule on ‘Temporary’ Measures to Limit Asylum at Southwest Border – The Biden administration issued a new proposed rule that it called “temporary,” which introduces a “rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.”

8. USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions – U.S. Citizenship and Immigration Services has released policy guidance to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are authorized to work under the SSR provisions.

9. F and M Student Visas Can Be Issued Up To a Year in Advance, State Dept. Says – F and M student visas for new students now can be issued up to 365 days before the start date for a course of study. However, the student cannot enter the United States on a student visa more than 30 days before the start date.

10. DHS Extends Comment Period for Fee Rule; USCIS Releases Fact Sheet on Fee Waivers for Naturalization Applications – The Department of Homeland Security has extended by five days, to March 13, 2023, the comment period for a rule proposing to change the fee schedule for certain immigration benefits.

11. USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on a Blanket L Petition – U.S. Citizenship and Immigration Services seeks comments on a proposed revision of the nonimmigrant petition based on a blanket L intracompany transferee petition.

12. March Visa Bulletin Includes Updates on Visa Availability in Coming Months – The Department of State’s Visa Bulletin for March 2023 includes updates on visa availability in various categories, including possible retrogressions in the coming months.

13. E-Verify Recommends Timeframes to Resolve Certain Social Security Mismatches; Deadline is September 29, 2023 – E-Verify recommends that employees with E-Verify Social Security Administration (SSA) Tentative Nonconfirmation mismatch cases falling within certain timeframes to visit their local SSA offices within preferred date ranges, and that all affected employees must visit SSA to resolve their mismatch by September 29, 2023.

14. Ninth Circuit Agrees to Rehear Temporary Protected Status Case – The U.S. Court of Appeals for the Ninth Circuit has agreed to rehear a case, Ramos v. Mayorkas, filed by temporary protected status (TPS) recipients and their children, thus granting at least a temporary reprieve to an estimated 300,000 affected TPS recipients.

15. Fourth Circuit Affirms Denial of Employer’s Petition for Multinational Executive/Manager – The court noted that to establish whether an employee works or has worked in a managerial or executive role, the sponsoring employer must submit a detailed list of the job-related tasks the putative beneficiary performs or has performed; general or vague descriptions are insufficient.

16. United States, Mexico Sign MOU on Temporary Foreign Workers – The United States and Mexico have signed a memorandum of understanding “to strengthen protections for workers participating in temporary foreign worker programs,” the Department of Labor reported.

17. Chief Administrative Hearing Officer Requests Amicus Briefs on Immigration-Related Document Fraud – The Justice Department has invited interested members of the public to file amicus curiae briefs on the question of whether the knowing use of a forged, counterfeit, altered, or falsely made document to obtain employment and complete the Form I-9 employment eligibility verification form constitutes a “continuing violation” for the duration of employment.

18. State Dept. Plans Pilot to Allow Visa Renewals in United States for H and L Workers – The Department of State plans to launch a pilot program later this year to allow visa renewals in the United States for H and L nonimmigrant workers.

19. 41K+ Individuals Denied Visas Under Trump-Era Travel Ban Can Reapply Without Paying a Fee, Court Says – A district court has ordered the U.S. government to provide relief to approximately 41,000 nonimmigrant visa applicants who were denied a waiver during the Trump administration’s travel ban under Presidential Proclamation 9645 and who have not subsequently been granted a visa.

20. Biden Administration Expects Title 42 Will End in May – The Biden administration told the Supreme Court that “[a]bsent other relevant developments, the end of the public health emergency [PHE] will (among other consequences) terminate the Title 42 orders and moot this case.” The Department of Health and Human Services is planning for the expiration of the PHE for COVID-19 “at the end of the day on May 11, 2023.”

21. SAVE Enables New Initial Verification Response – Systematic Alien Verification for Entitlements (SAVE) enabled a new initial verification response, “Unable to Create Case,” on February 20, 2023. SAVE will provide this response when a user tries to submit a duplicate case via a web browser.

22. ETA Updates Allowable Charges and Reimbursements for H-2A and H-2B Workers – The Department of Labor’s Employment and Training Administration has announced the annual updated dollar amount per day that H-2A employers may charge certain workers for providing meals, and the maximum and minimum rate per day at which H-2A and H-2B workers must be reimbursed for travel-related subsistence expenses.

23. USCIS Issues Documentation Reminder for Permanent Residence/Adjustment Applications – U.S. Citizenship and Immigration Services issued a reminder to applicants to file all required initial evidence and supporting documentation listed under the Checklist of Required Initial Evidence heading when they file Form I-485, Application to Register Permanent Residence or Adjust Status.

24. ABIL Global: Australia – Australia grants thousands of refugees permanent visas after a decade of uncertainty.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – March 2023

1. USCIS Reaches H-2B Cap for Second Half of FY 2023, Announces Filing Dates for Supplemental Visas

U.S. Citizenship and Immigration Services (USCIS) announced on March 2, 2023, that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2023. USCIS also announced the filing dates for supplemental H-2B visas for the remainder of FY 2023 made available under the FY 2023 H-2B supplemental visa temporary final rule.

H-2B Cap for Second Half of FY 2023

February 27, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2023, and before October 1, 2023. USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including petitions for:

• Current H-2B workers in the United States who 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).

Filing Dates for Supplemental Visas

The Departments of Homeland Security (DHS) and Labor (DOL) jointly published a temporary final rule on December 15, 2022, increasing the numerical limit (cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of FY 2023. These supplemental visas are available only to “U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition,” USCIS said, as attested by the employer on DOL Form ETA 9142-B-CAA-7. These supplemental H-2B visas are for U.S. employers seeking to petition for additional workers at certain periods of the fiscal year before September 15, 2023.

The USCIS alert details the filing start dates for each of the remaining supplemental visa allocations under the temporary final rule.

USCIS previously announced that it had received enough petitions to reach the cap for the additional 18,216 H-2B visas made available for returning workers for the first half of FY 2023 with employment start dates on or before March 31, 2023.

Details:

• USCIS alert (Mar. 2, 2023). https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of
• DHS/DOL temporary final rule, 87 Fed. Reg. 76816 (Dec. 15, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-15/pdf/2022-27236.pdf

“Temporary Increase in H-2B Nonimmigrant Visas for FY 2023,” USCIS webpage (updated Mar. 2, 2023). https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2023

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2. USCIS to Start Collecting Hefty Fees for ‘EB-5 Integrity Fund’

The Department of Homeland Security (DHS) published a Federal Register notice on March 2, 2023, announcing annual fees to be collected for the “EB-5 Integrity Fund.” U.S. Citizenship and Immigration Services (USCIS) said it will use the fund primarily to administer the EB-5 Regional Center Program. As required under the EB-5 Reform and Integrity Act of 2022, the fee is $20,000 for regional centers with more than 20 investors and $10,000 for those with 20 or fewer investors.

The fee payment for fiscal year (FY) 2023 is due by April 1, 2023, and regional centers must pay the fee online directly at Pay.gov, a system managed by the U.S. Department of the Treasury. Starting in FY 2024 (October 2023), the fee will be due at the start of each fiscal year between October 1 and October 31.

In addition, DHS said, the filing fee for Form I-526E, Immigrant Petition by Regional Center Investor, increased by $1,000 on October 1, 2022, to incorporate the Integrity Fund fees.

USCIS said it will not impose late fees for payments that were due in FY 2023. The agency will start imposing a late fee in October 2023 for any payments made more than 30 days later than the due date. USCIS said it will announce the amount of the late penalty and the process for collecting it “in a future publication before we collect it or it is due.”

Per the new EB-5 law, USCIS must terminate the designation of any regional center that does not pay the fee within 90 days of the due date. Termination will not be automatic, and USCIS will provide a notice of intent to terminate and the opportunity to prove that the fee was paid in the proper amount within 90 days of the due date before sending a notice of termination.

Details:

• USCIS alert (Mar. 1, 2023). https://www.uscis.gov/newsroom/alerts/uscis-to-start-collecting-fee-for-eb-5-integrity-fund
• USCIS notice, 88 Fed. Reg. 13141 (Mar. 2, 2023). https://www.govinfo.gov/content/pkg/FR-2023-03-02/pdf/2023-04295.pdf

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3. DOS Issues Final Rule Updating Regulation on Signed Photos for Visa Processing

Effective April 5, 2023, the Department of State (DOS) is updating its regulation regarding visa applicants’ furnishing of signed photographs as required under Immigration and Nationality Act § 221(b). DOS said the updates reflect changes in technology, including the ability to upload digital photographs electronically as part of the online visa application process.

The final rule clarifies that immigrant and nonimmigrant visa applicants may upload digital photographs electronically as part of the online visa application process instead of submitting ink-signed photographs. The electronic signature on the DS-160, Online Nonimmigrant Visa Application, or the biometric signature for the DS-260, Online Application for Immigrant Visa and Alien Registration, will be “considered as signing the digital photograph and any paper photographs that may be otherwise submitted.” Additionally, the rule amends language concerning the nonimmigrant photograph to clarify that the submitted photograph must meet the specifications prescribed by DOS and deletes language allowing immigrant visa applicants to submit black-and-white photographs.

Details:

• DOS Final Rule, 88 Fed. Reg. 13694 (Mar. 6, 2023) (advance copy). https://www.govinfo.gov/content/pkg/FR-2023-03-06/pdf/2023-04405.pdf

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4. USCIS Updates Guidance on On-Site Inspections for Religious Worker Petitions

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in its Policy Manual regarding on-site inspections for special immigrant and nonimmigrant religious worker petitions. To assess the efficacy of on-site inspections for petitioning religious organizations, USCIS conducted a large-scale review of the results of these inspections over the past 12 years. The agency said that although pre-adjudicative religious worker site visits uncovered a significant decline in levels of noncompliance, USCIS has determined that “conducting random on-site inspections to monitor compliance, coupled with the ability of an officer to refer religious worker petitions for a compliance review at any time during the application lifecycle, will add value and program efficiencies to the overall process and help ensure program integrity.”

The guidance:

• Clarifies that, as a matter of policy, USCIS no longer conducts mandatory pre-approval compliance review on-site inspections of all petitioners for religious workers.
• Explains that USCIS randomly selects religious worker petitions for compliance review on-site inspections, which normally occur after the approval of the petition, and which include inspections of the work locations to verify the religious worker’s work hours, compensation, and duties.
• Provides that USCIS may also conduct “for cause” inspections at any time in cases where there is suspected noncompliance with the terms of the religious worker petition or for fraud.
• Clarifies that, if applicable, USCIS may issue a request for evidence or notice of intent to deny based on the findings of a pre-adjudication inspection, or a notice of intent to revoke based on the findings of a post-adjudication inspection. The petitioner will have an opportunity to respond.

Details:

• USCIS Policy Alert (PA-2023-04) (Mar. 2, 2023). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230302-ReligiousWorkers.pdf
• USCIS Policy Manual. https://www.uscis.gov/policy-manual

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5. DOL Final Rule Revises AEWR Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) issued a final rule effective March 30, 2023, revising the methodology by which it determines the hourly Adverse Effect Wage Rates (AEWRs) for non-range occupations (i.e., all occupations other than herding and production of livestock on the range). DOL said it believes the new methodology “strikes a reasonable balance between the statute’s competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages and working conditions” of similarly situated U.S. workers.

For the vast majority of H-2A job opportunities represented by the six Standard Occupational Classification (SOC) codes comprising the field and livestock worker (combined) wages reported by the U.S. Department of Agriculture, DOL will continue to rely on the Farm Labor Survey (FLS) to establish the AEWRs where a wage is reported by the FLS. For all other SOC codes, DOL will use the Occupational Employment and Wage Statistics (OEWS) survey to establish the AEWRs for each SOC code. Additionally, in circumstances in which the FLS does not report a wage for the field and livestock workers (combined) occupational group in a particular state or region, DOL will use the OEWS survey to determine the AEWR for that occupational group.

Details:

• DOL Final Rule, 88 Fed. Reg. 12760 (Feb. 28, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-28/pdf/2023-03756.pdf

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6. USCIS Issues Guidance on Eligibility for O-1B Visa Classification

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance on March 3, 2023, effective immediately, clarifying how it evaluates evidence to determine eligibility for O-1B nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television industry.

The policy updates include a new chart in the USCIS Policy Manual’s appendix describing examples of evidence that may satisfy the O-1B evidentiary criteria, as well as considerations relevant to evaluating such evidence. The chart is also intended to assist petitioners in submitting appropriate evidence that may establish a beneficiary’s eligibility.

USCIS said the guidance also improves readability “to help adjudicators with predictable and transparent application of the O-1B evidentiary requirements, in support of consistent decisions and improvements in efficiency.”

The guidance in the Policy Manual “is controlling and supersedes any related prior guidance on the topic,” USCIS said.

Details:

• USCIS alert (Mar. 3, 2023). https://www.uscis.gov/newsroom/alerts/uscis-issues-clarifying-guidance-on-eligibility-for-the-o-1b-visa-classification
• USCIS Policy Alert (PA-2023-05) (Mar. 3, 2023). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230303-ExtraordinaryAbility.pdf
• USCIS Policy Manual. https://www.uscis.gov/policy-manual

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7. Biden Administration Proposes Controversial Rule on ‘Temporary’ Measures to Limit Asylum at Southwest Border

The Biden administration issued a new proposed rule that it called “temporary,” which introduces a “rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” The administration said the rule would deter migrants from relying on human smuggling networks, protect against extreme overcrowding in border facilities, and help to ensure that the processing of migrants seeking protection in the United States “is done in an effective, humane, and efficient manner.”

The administration said the proposed rule was being issued in advance of the expected termination of the Centers for Disease Control and Prevention’s (CDC) Title 42 public health order related to the COVID-19 pandemic and a consequent potential surge of migration into the United States via the southwest border. The CDC is expected to terminate its public health order on May 11, 2023, and the administration anticipates returning at that time to processing all noncitizens under Title 8 immigration authorities once Title 42 is terminated.

The proposed rule’s executive summary notes that U.S. officials’ encounters with noncitizens attempting to cross the southwest border into the United States without authorization “have reached an all-time high” even with the Title 42 public health order in place, “driven in large part by an unprecedented exodus of migrants from countries such as Colombia, Cuba, Ecuador, Nicaragua, Peru, and Venezuela.” The summary provides as an example that during a 30-day period ending December 24, 2022, the total daily encounters along the southwest border “consistently fluctuated between approximately 7,100 and 9,700 per day, averaging approximately 8,500 per day, with encounters exceeding 9,000 per day on 12 different occasions during this 30-day stretch.”

A Biden administration official reportedly said the new regulation constituted “temporary measures” and was done “out of necessity.” An administration statement from the Departments of Homeland Security and Justice lamented “the absence of congressional action to update a very broken, outdated immigration system.”

Reaction. Advocates objected to the new regulation. The American Immigration Lawyers Association (AILA) said the “transit ban” is “unworkable and a violation of U.S. asylum law. In a letter to President Biden last month, AILA President Jeremy McKinney and Executive Director Benjamin Johnson urged him to reconsider. They pointed to President Biden’s promise made during his presidential campaign to safeguard America’s commitment to asylum protection. Among other things, Mr. McKinney noted that “the countries through which people are fleeing are not ‘safe third countries’ by any stretch of the imagination, according to the U.S. State Department’s own reporting.” Mr. Johnson said, “This regulation is a clear violation of the rights of migrants under U.S. law to seek protection from persecution, regardless of how they enter the United States. The Biden Administration claims asylum will still be available under this regulation, but the so-called ‘rebuttable presumptions’ they propose will not provide sufficient opportunity for people in dire need to apply. It is absurd to expect asylum applicants who rarely have legal assistance to be able to rebut the presumptive bar set by this new rule and qualify for asylum protection.”

Comments on the proposed rule must be submitted by March 27, 2023.

Details:

• “Circumvention of Lawful Pathways,” DHS/DOJ Proposed Rule, 88 Fed. Reg. 11704 (Feb. 23, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-23/pdf/2023-03718.pdf
• “DHS and DOJ Propose Rule to Incentivize Lawful Migration Processes,” DHS, Feb. 21, 2023. https://www.dhs.gov/news/2023/02/21/dhs-and-doj-propose-rule-incentivize-lawful-migration-processes
• “Biden Administration Rolls Out New Asylum Restrictions Mirroring Trump-Era Policy,” CNN, Feb. 21, 2023. https://www.cnn.com/2023/02/21/politics/asylum-policy-biden-administration/index.html
• “AILA Condemns Biden Administration’s Push to Use ‘Transit Ban’ Against Vulnerable Asylum Seekers,” Press Release, American Immigration Lawyers Association, Feb. 21, 2023. https://www.aila.org/advo-media/press-releases/2023/aila-condemns-biden-administrations-push
• AILA letter to President Biden, Jan. 17, 2023. https://www.aila.org/advo-media/aila-correspondence/2023/letter-to-president-biden-regarding-the-proposed

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8. USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions

U.S. Citizenship and Immigration Services (USCIS) has released policy guidance to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are authorized to work under the SSR provisions. The guidance applies to all pending and future applications for SSR employment authorization as of February 22, 2023, the date the guidance was published.

The update clarifies that in cases of severe economic hardship due to emergent circumstances, USCIS may grant off-campus SSR employment authorization to an F-1 nonimmigrant student for the duration of the Federal Register notice validity period, which is typically 18 months. The employment authorization may not extend past the student’s academic program end date.

USCIS said that emergent circumstances are “events that affect F-1 nonimmigrant students from a particular region and create severe economic hardship. These events may include, but are not limited to, natural disasters, financial crises, and military conflicts.”

Details:

• “Special Student Relief for F-1 Nonimmigrant Students,” USCIS Policy Alert (PA-2023-03), Feb. 22, 2023. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230222-SpecialStudentRelief.pdf
• USCIS notice, Feb. 22, 2023. https://www.uscis.gov/newsroom/alerts/uscis-issues-clarifying-guidance-for-individuals-authorized-to-work-under-special-student-relief
• USCIS Policy Manual. https://www.uscis.gov/policy-manual

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9. F and M Student Visas Can Be Issued Up To a Year in Advance, State Dept. Says

The Department of State (DOS) announced that F and M student visas for new students now can be issued up to 365 days before the start date for a course of study. However, the student cannot enter the United States on a student visa more than 30 days before the start date.

F and M student visas for continuing students may be issued at any time, DOS said, as long as the student is currently enrolled at a Student and Exchange Visitor Program-approved school or institution and in the Student and Exchange Visitor Information System. Continuing students may enter the United States at any time before classes start.

Details:

• Student Visa page, DOS. https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html
• DOS tweet, Feb. 21, 2023. https://twitter.com/TravelGov/status/1628095602931138564

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10. DHS Extends Comment Period for Fee Rule; USCIS Releases Fact Sheet on Fee Waivers for Naturalization Applications

The Department of Homeland Security (DHS) has extended by five days, to March 13, 2023, the comment period for a rule published on January 4, 2023, proposing to change the fee schedule for certain immigration benefits. DHS said the extension was due to technical problems on the General Services Administration’s eRulemaking Portal that prevented some commenters from submitting their comments and supporting documentation.

Separately, U.S. Citizenship and Immigration Services (USCIS) released a fact sheet on requests for fee waivers for Form N-400, Application for Naturalization. The fact sheet includes a checklist of grounds that may be used as a basis for the fee waiver, and information about qualifying for a reduced fee if the applicant does not qualify for a waiver.

Details:

• DHS extension of comment period, 88 Fed. Reg. 11825 (Feb. 24, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-24/pdf/2023-03906.pdf
• Proposed Fee Rule Frequently Asked Questions, DHS, updated Feb. 23, 2023. https://www.uscis.gov/proposed-fee-rule-frequently-asked-questions
• Fact Sheet: Request for Fee Waiver for Form N-400, USCIS (n.d.). https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetI-912RequestforFeeWaiverForFormN-400.pdf

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11. USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on a Blanket L Petition

U.S. Citizenship and Immigration Services (USCIS) seeks comments on a proposed revision of the nonimmigrant petition based on a blanket L intracompany transferee petition.

USCIS explained that employers seeking to classify employees outside the United States as executives, managers, or specialized knowledge professionals, as nonimmigrant intra-company transferees pursuant to a previously approved blanket petition, may file this form. USCIS uses the information provided through the form to assess whether the employee meets the requirements for L-1 classification under blanket L petition approval.

Comments are due by April 24, 2023.

Details:

• USCIS notice and request for comments, 88 Fed. Reg. 10531 (Feb. 21, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-21/pdf/2023-03528.pdf

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12. March Visa Bulletin Includes Updates on Visa Availability in Coming Months

The Department of State’s Visa Bulletin for March 2023 includes updates on visa availability in various categories, including possible retrogressions in the coming months:

• Visa availability in the EB-2 preference category for all countries (including China and India): Higher than expected number use, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates, will necessitate corrective action in the coming months to hold number use within the maximum allowed under the fiscal year 2023 annual limit.
• Visa availability in the EB-3 preference category: Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months.
• Further retrogression in the EB-4 preference category: Number use and demand in this category have continued to increase, which necessitates further retrogression of final action dates and application filing dates.
• Retrogression of the EB-5 preference category final action date for India: For March, the final action date for the EB-5 Unreserved category for India is set at 01JUN18.

The bulletin also notes that the National Visa Center has provided totals of applicants registered in the various numerically limited categories for processing at overseas posts.

Details:

• March 2023 Visa Bulletin, Department of State. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-march-2023.html

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13. E-Verify Recommends Timeframes to Resolve Certain Social Security Mismatches; Deadline is September 29, 2023

E-Verify notified employers on February 15, 2023, that it recommends that employees with E-Verify Social Security Administration (SSA) Tentative Nonconfirmation mismatch cases falling within certain timeframes to visit their local SSA offices within preferred date ranges:

E-Verify said these timeframes are “recommended,” and that all affected employees must visit SSA to resolve their mismatch by September 29, 2023, or their cases will receive a Final Nonconfirmation.

Details:

• “Social Security Administration Resumes E-Verify Operations,” https://www.e-verify.gov/social-security-administration-resumes-e-verify-operations

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14. Ninth Circuit Agrees to Rehear Temporary Protected Status Case

The U.S. Court of Appeals for the Ninth Circuit has agreed to rehear a case, Ramos v. Mayorkas, filed by temporary protected status (TPS) recipients and their children, thus granting at least a temporary reprieve to an estimated 300,000 affected TPS recipients.

A statement by the American Civil Liberties Union of Southern California (ACLU SoCal) explained that beneficiaries of TPS and their U.S. citizen children brought the suit in 2018 after former President Trump revoked TPS for individuals from El Salvador, Haiti, Nicaragua, and Sudan, and later for Nepal and Honduras. Although the Biden administration has since redesignated TPS for Haiti and Sudan, the administration has not extended the same protections for the other four countries, ACLU SoCal noted.

Details:

• “Hundreds of Thousands of TPS Holders Continue to be Protected,” ACLU SoCal press release, Feb. 10, 2023. https://www.aclusocal.org/en/press-releases/statements-civil-rights-groups-and-tps-holders-ninth-circuit-decision-rehear-case
• Ramos v. Mayorkas, order filed Feb. 10, 2023. https://www.aclusocal.org/sites/default/files/2023-02-10_9th_cir_en_banc.pdf

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15. Fourth Circuit Affirms Denial of Employer’s Petition for Multinational Executive/Manager

Elizur International Inc., a company that produces ornamental glass products, filed an employment-based green card petition in 2018 seeking to permanently employ Chuncheng Ren, a Chinese citizen, in the United States as a multinational executive or manager. U.S. Citizenship and Immigration Services (USCIS) denied Elizur’s petition. Rather than file an administrative appeal, Elizur and Mr. Ren sued in federal court and lost. On February 14, 2023, the U.S. Court of Appeals for the Fourth Circuit affirmed the denial.

The court noted that to establish whether an employee works or has worked in a managerial or executive role, the petitioner (sponsoring employer) must submit a detailed list of the job-related tasks the individual performs or has performed; general or vague descriptions are insufficient. But a thorough job description is not enough, the court said. The description must also reveal that the beneficiary’s duties have been or will be primarily managerial or executive in nature. Mere assertions, as in the case here, that the beneficiary “provided managerial and executive leadership to the marketing/product development functions” and “implemented new business acquisition initiatives,” for example, are insufficient. The court noted that the company’s submission was “filled with fluffy descriptions devoid of any real substance. Indeed, it largely reads more like a collection of one-liners useful for resume drafting than a meaningful description of the duties that Ren actually performed.”

The court also found that the agency’s request for supplemental evidence about the employee’s “specific daily duties” and the “percentage of time spent on each duty” was appropriate. “A petitioner’s failure to furnish evidence of specific day-to-day duties forms a common component of both agency denials of Form I-140 petitions and courts’ review of those denials,” the court noted.

This case provides a reminder to employers that the benefits of an I-140 permanent residence petition for a multinational executive or manager are distinct from the benefits of an L-1A temporary nonimmigrant visa for a multinational executive or manager. This includes the fact that for the benefits of I-140 permanent residence, an employer must establish that the beneficiary also held a manager or executive-level position abroad, whereas this is not a criterion for the L-1A status/visa.

Details:

• Ren v. USCIS, https://cases.justia.com/federal/appellate-courts/ca4/21-1661/21-1661-2023-02-14.pdf?ts=1676404915

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16. United States, Mexico Sign MOU on Temporary Foreign Workers

The United States and Mexico have signed a memorandum of understanding (MOU) “to strengthen protections for workers participating in temporary foreign worker programs,” the Department of Labor reported.

The MOU includes a variety of measures, including promoting fair recruitment and compliance with laws, rules, and regulations; prohibiting discrimination; fostering and enhancing accountability, labor rights, and transparency, including through improving workers’ awareness about H-2 programs’ structures and application processes and their rights; jointly planning and executing pre-training and post-arrival training on labor and employment antidiscrimination laws and regulations for officials and consular officers; and exploring forms of collaboration for Mexico’s new platform on labor mobility.

The MOU calls for quarterly meetings of the relevant government agencies “to monitor the enforcement of employment laws, rules, and regulations that apply to temporary foreign workers, including through oversight and enforcement of labor laws, to hold employers and their agents accountable for violations and through efforts to connect workers who experienced harm or exploitation to assistance and care in the United States and in Mexico.”

Details:

• S., Mexico Sign Memorandum to Protect Temporary Foreign Workers,” Dept. of Labor news release, Jan. 18, 2023. https://www.dol.gov/newsroom/releases/ilab/ilab20230118
• S.-Mexico MOU. https://www.dol.gov/sites/dolgov/files/ILAB/MoU-on-Labor-Mobility-and-Protection-English.pdf

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17. Chief Administrative Hearing Officer Requests Amicus Briefs on Immigration-Related Document Fraud

The Department of Justice’s Chief Administrative Hearing Officer (CAHO) for immigration-related cases has invited interested members of the public to file amicus curiae briefs on this question:

Does a violation of 8 U.S.C. § 1324c(a)(2) for the knowing use of a forged, counterfeit, altered, or falsely made document in order to obtain employment and complete the employment eligibility verification Form I-9 constitute a “continuing violation” for the duration of employment at the employer to whom the document was presented? Or, does the knowing use occur only at the time the document is presented to obtain employment and complete the employment eligibility verification Form I-9? [Amicus Invitation No. 23-15-02]

Details:

• Amicus Invitation No. 23-15-02, Office of the Chief Administrative Hearing Officer, 15, 2022. https://www.justice.gov/eoir/page/file/1568616/download

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18. State Dept. Plans Pilot to Allow Visa Renewals in United States for H and L Workers

According to reports, the Department of State (DOS) plans to launch a pilot program later this year to allow visa renewals in the United States for H and L nonimmigrant workers who currently must leave the country to renew their visas at consular offices abroad. The program could expand eventually. Practitioners say such a policy, which was in place until 2004, would help to relieve backlogs and lengthy wait times abroad, and reduce the burden on consular offices and visa holders. The program is expected to benefit tens of thousands of foreign tech professionals in the United States on H-1B visas, among others.

The timeframe for the pilot program remains unclear. It appears that new regulations would not be required, but a new consular division in Washington, DC, would be needed. “That’s not a small endeavor,” said Julie Stufft, Deputy Assistant Secretary for Visa Services in the Bureau of Consular Affairs.

Details:

• “State Department Plans Pilot for Domestic Visa Renewal,” Bloomberg Law, Feb. 9, 2023. https://news.bloomberglaw.com/daily-labor-report/state-department-plans-pilot-for-domestic-visa-renewal-this-year
• “Techies May Soon Be Able To Get Their Renewed H-1B Visas Stamped While Still in the United States,” Economic Times, Feb. 11, 2023. https://economictimes.indiatimes.com/nri/migrate/techies-may-soon-be-able-to-get-their-h-1b-visas-renewed-while-still-in-the-united-states/articleshow/97791419.cms
• “U.S. Planning to Resume ‘Domestic Visa Revalidation’ on Pilot Basis to Benefit H-1B Visa Holders,” Outlook India, Feb. 11, 2023. https://www.outlookindia.com/business/us-planning-to-resume-domestic-visa-revalidation-on-pilot-basis-to-benefit-h-1b-visa-holders-news-261059

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19. 41K+ Individuals Denied Visas Under Trump-Era Travel Ban Can Reapply Without Paying a Fee, Court Says

A district court has ordered the U.S. government to provide relief to approximately 41,000 nonimmigrant visa applicants who were denied a waiver during the Trump administration’s travel ban under Presidential Proclamation 9645 and who have not subsequently been granted a visa.

The court said that the government will notify these 41,000+ individuals directly through the Consular Electronic Application Center and indirectly through the Department of State’s website, and will advise them that they may reapply for a nonimmigrant visa without paying a second fee.

The government may set a reasonable time limit for them to reapply, the court said. No refunds will be provided to any individuals who may have already reapplied and paid a second fee.

The government will file by February 17, 2023: (1) a proposed schedule for providing notice; (2) proposed language for the notice; and (3) whether updated materials will be required, and if so, the relevant statutory or regulatory citation for any such materials.

The cases, filed in the U.S. District Court for the Northern District of California, include Emami v. Nielsen (case no. 3:18-cv-01587) and Pars Equality Center v. Pompeo (case no. 3:18-cv-07818).

Details:

• “Over 41K Visa Seekers Denied By Travel Ban Can Try Again,” Law360, Feb. 10, 2023. https://www.law360.com/articles/1575187/over-41k-visa-seekers-denied-by-travel-ban-can-try-again (registration required)
• Emami v. Nielsen. https://www.courtlistener.com/docket/6533642/emami-v-nielsen/

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20. Biden Administration Expects Title 42 Will End in May

In a recent filing with the Supreme Court in Arizona v. Mayorkas, the Biden administration told the Court that “[a]bsent other relevant developments, the end of the public health emergency [PHE] will (among other consequences) terminate the Title 42 orders and moot this case.” The Department of Health and Human Services (HHS) is planning for the expiration of the PHE for COVID-19 “at the end of the day on May 11, 2023.”

A “Statement of Administration Policy” from the Executive Office of the President said that “the end of the public health emergency will end the Title 42 policy at the border. While the Administration has attempted to terminate the Title 42 policy and continues to support an orderly lifting of those restrictions, Title 42 remains in place because of orders issued by the Supreme Court and a district court in Louisiana.” The statement argued against ending the PHE earlier and against proposed legislation, such as H.R. 382, aimed at lifting Title 42 immediately. “The number of migrants crossing the border has been cut in half, approximately, since the Administration put in place a plan in early January to deter irregular migration from Venezuela, Cuba, Nicaragua, and Haiti. The Administration supports an orderly, predictable wind-down of Title 42, with sufficient time to put alternative policies in place. But if H.R. 382 becomes law and the Title 42 restrictions end precipitously, Congress will effectively be requiring the Administration to allow thousands of migrants per day into the country immediately without the necessary policies in place,” the statement noted.

Details:

• Brief for the Federal Respondents, Arizona v. Mayorkas, Feb. 2023. https://www.supremecourt.gov/DocketPDF/22/22-592/254246/20230207174850185_22-592bsUnitedStates.pdf
• Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap,” HHS, Feb. 9, 2023. https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html
• Statement of Administration Policy, Jan. 30, 2023. https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf

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21. SAVE Enables New Initial Verification Response

Systematic Alien Verification for Entitlements (SAVE) enabled a new initial verification response, “Unable to Create Case,” on February 20, 2023. SAVE will provide this response when a user tries to submit a duplicate case via a web browser.

Instead of creating a duplicate case, the Unable to Create Case response will provide the number for the original case. The user can then use the Case Search function to locate and track the original case. As noted above, SAVE said this implementation applies to the web browser access method. For Web Services (system-to-system connection) agencies, SAVE is continuing to implement a Duplicate Case error code.

SAVE said a case is considered duplicate only if the original case is still open and the following data elements are identical to those in the original case:

• User submitting the case
• Applicant’s name, date of birth, and immigration enumerator
• Benefit(s) for which the case is submitted
• Any additional information requests (for example, grant date)

Details:

• SAVE Verification Process. https://www.uscis.gov/save/about-save/save-verification-process

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22. ETA Updates Allowable Charges and Reimbursements for H-2A and H-2B Workers

The Department of Labor’s Employment and Training Administration has announced the annual updated dollar amount per day ($15.46) that H-2A employers may charge workers (other than workers in herding or production of livestock on the range occupations) for providing meals, and the maximum ($59, with documentation of actual expenses) and minimum ($15.46) rate per day at which H-2A and H-2B workers must be reimbursed for travel-related subsistence expenses.

The notice includes a reminder of the continuing obligation of H-2A and H-2B employers to pay certain lodging and travel-related expenses that workers incur while traveling to and from H-2A and H-2B employment.

Details:

• ETA notice, 88 Fed. Reg. 8478 (Feb. 9, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-09/pdf/2023-02755.pdf
• Meal Charges and Travel Subsistence, ETA, Feb. 9, 2023. https://www.dol.gov/agencies/eta/foreign-labor/wages/meals-travel-subsistence

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23. USCIS Issues Documentation Reminder for Permanent Residence/Adjustment Applications

U.S. Citizenship and Immigration Services (USCIS) issued a reminder to applicants on February 10, 2023, to file all required initial evidence and supporting documentation listed under the Checklist of Required Initial Evidence heading when they file Form I-485, Application to Register Permanent Residence or Adjust Status. “Submitting all required initial evidence and supporting documentation at the same time [as] you file Form I-485 may eliminate the need for us to issue a Request for Evidence (RFE) to obtain additional evidence and documentation. This may also help avoid adjudication delays if we decide that you do not need to be interviewed,” USCIS said.

In particular, USCIS emphasized submitting Form I-693, Report of Medical Examination and Vaccination Record, when filing the Form I-485. “We generally consider a completed Form I-693 to remain valid for two years after the date the civil surgeon signed Form I-693. Additionally, from Dec. 9, 2021 until March 31, 2023, we are temporarily waiving the requirement that the civil surgeon’s signature be dated no more than 60 days before you file your Form I-485,” the agency said.

USCIS published a new edition of Form I-485 (edition date 12/23/22) on December 23, 2022. Earlier versions will be rejected.

Details:

• USCIS alert, Feb. 10, 2023. https://www.uscis.gov/newsroom/alerts/reminder-to-submit-all-required-initial-evidence-and-supporting-documentation-including-form-i-693
• Checklist of Required Initial Evidence for Form I-485. https://www.uscis.gov/forms/filing-guidance/checklist-of-required-initial-evidence-for-form-i-485-for-informational-purposes-only

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24. ABIL Global: Australia

Australia grants thousands of refugees permanent visas after a decade of uncertainty.

On February 12, 2023, the Australian government announced that refugees who arrived in Australia before 2013 can now transition to a permanent Resolution of Status (RoS) visa. Approximately 19,000 refugees who have essentially lived in indefinite limbo over the past decade will now be able to build their lives in Australia with certainty.

The RoS visa allows for immediate Social Security payments, and access to the national disability insurance scheme and higher education loans. Once the residence requirements have been met, these refugees also can apply for Australian citizenship. Being granted a permanent visa also means that applications can be submitted for separated family members to come to Australia.

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New Publications and Items of Interest

USCIS engagement on Haiti TPS. U.S. Citizenship and Immigration Services will hold an engagement on the extension and redesignation of temporary protected status for Haiti, on Tuesday, March 21, 2023, from 2 to 3 p.m. USCIS will provide an overview and a question-and-answer session. https://www.uscis.gov/outreach/upcoming-national-engagements/temporary-protected-status-extension-and-redesignation-for-haiti

Webinar on redesign of permanent resident cards and EADs. E-Verify held a webinar, “Permanent Resident Card and Employment Authorization Document Redesign,” on February 27, 2023. https://www.uscis.gov/outreach/upcoming-national-engagements/permanent-resident-card-and-employment-authorization-document-redesign

Conference on immigration policy. The Cornell Law School Immigration Law and Policy Research Program and the Cornell Migrations Initiative presented “Immigration Reform: Lessons Learned and a Path Forward,” a conference held February 24, 2023, at the National Press Club in Washington, DC. The conference explored targeted legislation and other policy changes that could be enacted in 2023, focusing on work visa changes to help alleviate U.S. labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers and farmworkers. https://cornell.zoom.us/webinar/register/WN_OTXGUSoWSBmn8xpoTmGHmA.

EB-5 stakeholder engagement. U.S. Citizenship and Immigration Services will hold a stakeholder engagement on the EB-5 immigrant investor program on Monday, March 20, 2023, from 1:30 to 3 p.m. ET. The three topics are Direct and Third-Party Promoters, Investment Period, and Regional Center Operations. https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-immigrant-investor-program-eb-5-stakeholder-engagement.

H-1B electronic registration webinar. U.S. Citizenship and Immigration Services held a webinar on the H-1B registration process on February 23, 2023. USCIS representatives provided updates on the online account features for the fiscal year 2024 H-1B electronic registration process and addressed questions. https://www.uscis.gov/outreach/upcoming-national-engagements/h-1b-electronic-registration-process-0

TPS for Ethiopia engagement. U.S. Citizenship and Immigration Services held an engagement on temporary protected status (TPS) for Ethiopia on February 21, 2023. USCIS provided an overview of the designation of Ethiopia for TPS and addressed questions. https://www.uscis.gov/outreach/upcoming-national-engagements/temporary-protected-status-for-ethiopia

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

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

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/
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ABIL Member / Firm News

Several Gomberg Dalfen, S.E.N.C. lawyers were named in the 2023 edition of the Canadian Legal Lexpert Directory, including Seth Dalfen, Avi Gomberg (bio: https://www.abil.com/abil-lawyers/avi-gomberg/), Genevieve Hénault, and Lisa Middlemiss. They are ranked lawyers based on the Lexpert® peer Survey. This year, the overall national response rate from law firm practitioners to the survey was 76 percent.

IMMpact Immigration Litigation (Joseph & Hall, PC, Kuck Baxter, Siskind Susser PC, and Bless Litigation LLC) announced a call for plaintiffs in prevailing wage determination litigation. IMMpact will represent individuals who filed Forms ETA 9141, Application for a Prevailing Wage Determination (PWD), before October 1, 2022. IMMPact plans to sue the Office of Foreign Labor Certifications (OFLC) and the Department of Labor because “the OFLC is failing to work on these applications in a timely manner.” IMMpact notes that OFLC is currently processing Forms ETA-9141 that were filed in January 2022. “The failure to adjudicate these applications in a timely manner adversely impacts employers’ ability to hire needed employees, threatens those in H-1B classification with losing their status, and adversely affects the ability of institutions of higher education to meaningfully take advantage of the special handling procedures implemented to ensure the most qualified professors are hired,” IMMpact said. https://www.immpactlitigation.com/prevailing-wage-determination-litigation-plaintiff-onboarding/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) authored a new blog post: “The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced to Allow Many More Backlogged Immigrants to File Adjustment of Status Applications.”

Mr. Mehta and Kaitlyn Box co-authored a new blog posting: “Khedkar v. USCIS Affirms That Employee Also Has an Interest in an I-140 Petition Filed by Employer.” http://blog.cyrusmehta.com/2023/02/khedkar-v-uscis-affirms-that-employee-also-has-interest-in-an-i-140-petiiton-filed-by-employer.html

Mr. Mehta and Jessica Paszko co-authored a new blog post: “National Interest Waiver for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization.” http://blog.cyrusmehta.com/2023/02/national-interest-waiver-changes-for-stem-graduates-and-entrepreneurs-along-with-premium-processing-will-benefit-h-4-spouses-seeking-work-authorization.html

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) discussed immigration history, law, politics, and related issues in “Episode 34: Immigration Law: Outspoken Changemaker in a Convoluted Maze,” part of the “Fill to Capacity” podcast series. https://www.nationofimmigrators.com/2023/01/outspoken-changemaker-in-a-convoluted-maze/

Greg Siskind, of Siskind Susser, PC, spoke on an American Bar Association (ABA) Techshow panel recently and was quoted by the ABA Journal on artificial intelligence (AI) tools and platforms for lawyers: “There are lower tech, low-code or no-code platforms available to build automation tools. When we’re talking about AI for lawyers, we’re basically talking about automating tasks in your practice.” He said his firm uses Afterpattern, which allows firms, legal aid organizations and courts to create document and workflow automations. The article notes that Mr. Siskind has used the platform to build an app that screens Ukrainians for Temporary Protected Status eligibility. He has also used it as a drafting tool, which the article says enables him to onboard hundreds of plaintiffs in mass immigration litigation in a short amount of time. “The whole thing happens in a matter of minutes. Before, we put tons and tons of labor into getting that information and drafting the declarations. Now, we can start onboarding for a case and file it two weeks later,” he said. Mr. Siskind added that he has used Afterpattern for Form I-9 digitization and auditing and for generating retainers. In the past few months, he also began to use Casetext’s CoCounsel to conduct research for his mass immigration litigation, the article notes. “Everything that I hate about ChatGPT is like, ‘It’s nice it said that, but what is that based on?’ ” Siskind said. “But this tool basically produced a 20-page memo that had all the cases that discussed a particular issue, links to those cases and summaries under each citation telling us what that particular case was about. It was wonderful for the amount of time it saved.” https://www.abajournal.com/web/article/how-can-lawyers-use-ai-to-improve-their-practice

Mr. Siskind appeared on an MSNBC “Morning Joe” segment with the co-founders of Casetext. https://www.msnbc.com/morning-joe/watch/first-ever-a-i-legal-assistant-makes-its-debut-164266565592

WR Immigration has released a video, “Chatting with Charlie: Understanding the March 2023 Visa Bulletin.” In this month’s episode of Chatting with Charlie, WR Immigration Director of Visa Consulting Charlie Oppenheim, Partner Charina Garcia, and Senior Associate Laura Bloniarz update human resources and global mobility professionals on the latest information from the Department of State’s March 2023 Visa Bulletin. https://www.youtube.com/watch?v=Kgw7Y2cJl24

WR Immigration published “Celebrating Black History Month: WR Recognizes Two Important Figures.” WR showcased two prominent figures in the black immigrant community in the United States “who have made an amazing impact through their civil advocations and humanitarian efforts: Miriam Makeba and Dikembe Mutombo.” https://wolfsdorf.com/celebrating-black-history-month-wr-recognizes-two-important-figures/

For more information or to register for the next Chatting with Charlie webinar, go to https://us02web.zoom.us/webinar/register/9216770213654/WN_3oTIINmkQ8yNSs7UY9mleg

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the New York Times in “In Rare Victory, Immigrants Prevail in Suit Over Meat Plant Raid.” The article reports on a case involving nearly 100 immigrants who were rounded up during a 2018 raid at a meat processing plant in Tennessee and have reached a $1.17 million settlement against the U.S. government and federal agents, who they said used racial profiling and excessive force during the operation. The article notes that the settlement agreement, approved February 27, 2023, in the U.S. District Court for the Eastern District of Tennessee, is likely the first class settlement over an immigration enforcement operation at a work site, according to immigration experts. In the past, only individual immigrants have reached settlements related to immigration raids, the article says, adding that legal experts have called it a rare victory for undocumented immigrants. Mr. Yale-Loehr said, “It is very hard to win a settlement from the U.S. government and agents in immigration enforcement cases. The outcome is particularly important because federal agents were held accountable for overreaching and racial profiling.” https://www.nytimes.com/2023/02/27/us/meat-plant-raid-immigrants-tennessee.html (subscription required)

Mr. Yale-Loehr was quoted by Cornell Law School News in “Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary.” Mr. Yale-Loehr said, “Because of the complexity of immigration law, it is very hard to win asylum for someone. We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.” He also said, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.” Over 20 years, the article notes, about 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated 66 percent of its cases, the article says. https://www.lawschool.cornell.edu/news/clinic_20th_anniversary/

Mr. Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by Univision in ” ‘Cruel,’ ‘Illegal,’ ‘Immoral,’ ‘Disappointment’ … Rain of Criticism Regarding Biden’s New Asylum Immigration Policy at the Border.” Mr. Yale-Loehr said, “The Biden administration is between a rock and a hard place. Congress has failed to reform our broken immigration system, and more and more people are trying to enter the United States for a variety of reasons, including persecution, gang violence, and climate change. The Biden administration hopes its proposed rule will survive a court challenge. I doubt it.”

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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 Issues Proposed Rule to Raise Fees and Fund Asylum Program With New $600 Employer Petition Fee – The Department of Homeland Security also proposes to fund the asylum program with a controversial new Asylum Program Fee of $600 to be paid by employers.

2. DHS Implements New Processes for Cubans, Haitians, and Nicaraguans and Eliminates Cap for Venezuelans – The Department of Homeland Security (DHS) announced a new process for qualifying Cubans, Haitians, and Nicaraguans with U.S.-based supporters to travel by air to and temporarily reside in the United States. Such individuals may also apply for work authorization. DHS also eliminated the numerical cap for a similar process for Venezuelans announced previously.

3. OFLC Completes Random Assignments of H-2B Applications for Second Half of FY 2023 Visa Cap – The Department of Labor’s Office of Foreign Labor Certification has completed the process to randomly assign all H-2B applications submitted during the initial three-day filing window, January 1-3, 2023, requesting an April 1, 2023, work start date for the second half of the fiscal year 2023 H-2B statutory visa cap.

4. Omnibus Spending Legislation Includes Several Immigration-Related Provisions – Included is $800 million in competitive grants under a new U.S. Customs and Border Protection “Shelter and Services” program for state and local governments and nonprofits dealing with an influx of migrants.

5. U.S. Embassy in Havana Resumes Full Immigrant Visa Processing – On January 4, 2023, the U.S. Embassy in Havana resumed full immigrant visa processing, including all visa categories. The embassy also announced that the United States is expanding consular operations in Havana and restarting the Cuban Family Reunification Parole Program.

6. Supreme Court Extends Temporary Stay of ‘Title 42’ – The Court plans to consider in late February 2023 whether the 19 states objecting to Title 42 have legal standing to do so.

7. Visa Bulletin for January 2023 Reports on Availability in the Employment First Category for China and India, Unavailability of Religious Workers Category – Effective in January, employment first preference final action and application filing dates for China and India are established to hold number use within the maximum allowed under the fiscal year 2023 annual limit.

8. TPS for Yemen Extended, Redesignated – The Department of Homeland Security extended and redesignated Yemen for temporary protected status in a Federal Register notice published on January 3, 2023.

9. CDC Announces New COVID-19 Testing Requirement for Air Passengers From China – Effective January 5, 2023, the Centers for Disease Control and Prevention is requiring a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China and the Special Administrative Regions of Hong Kong and Macau.

10. DHS, DOJ Further Delay Effective Date of Asylum Security Bars Rule – The rule would make noncitizens ineligible for asylum if, among other things, they were physically present in a country in which a communicable disease was prevalent or epidemic, and the Secretary of Homeland Security and the Attorney General determined that their physical presence in the United States would cause a risk to public health.

11. DOL Publishes Round 4 FAQs on H-2A Application Filing and Processing Under Final Rule – Topics include how to file, timing considerations, multiple worksites, National Processing Center processing, amendment requests, and withdrawal requests.

12. DHS Public Charge Ground of Inadmissibility Final Rule Effective December 23 – For public charge inadmissibility determinations, the Department of Homeland Security will not consider receipt of noncash benefits (for example, the Supplemental Nutrition Assistance Program, public housing, school lunch programs) other than long-term institutionalization at government expense.

13. E-Verify Restores Employers’ Ability to Upload Multiple Hiring Sites Simultaneously – E Verify has restored the ability of employers, employer agents, and corporate administrators to upload multiple hiring sites simultaneously.

14. USCIS Provides List of Options for Nonimmigrant Workers Following Termination of Employment – U.S. Citizenship and Immigration Services provided a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination of employment.

15. USCIS Seeks Comments on EB-5 Regional Center Forms for Investors – U.S. Citizenship and Immigration Services seeks comments until January 23, 2023, on two forms associated with the EB-5 Regional Center (RC) program.

16. USCIS Increases H-2B Nonimmigrant Visa Availability – A new rule increases the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2023.

17. DHS Issues Update on Southwest Border Security and Preparedness Under Court-Ordered Lifting of ‘Title 42’; Termination of ‘Remain in Mexico’ Program Paused – The Department of Homeland Security issued an update on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld on appeal. In other news, a federal judge paused the termination of the Migrant Protection Protocols, informally known as the “Remain in Mexico” program.

18. OFLC Publishes New 2023 H-2A Hourly Adverse Effect Wage Rates for Non-Range Occupations and for Herding or Production of Livestock on the Range – In two notices, the Department of Labor’s Employment and Training Administration announced new Adverse Effect Wage Rates under the H-2A program for (1) agricultural labor or services other than the herding or production of livestock on the range, and (2) occupations involving herding or production of livestock on the range.

19. Guangzhou Immigrant Visa Unit Closes Until Further Notice; Limited Services Announced at Other U.S. Embassies and Consulates in China – The Immigrant Visa Unit at the U.S. Consulate Guangzhou announced that beginning December 19, 2022, it is closed for regular visa services until further notice. The U.S. embassy in Beijing and the U.S. consulate in Shanghai are providing passport and emergency citizen services only. The U.S. consulates in Wuhan, Shenyang, and Guangzhou are only providing emergency consular services until further notice.

20. USCIS Announces Trial for Naturalization Test Updates – The trial is tentatively scheduled for a five-month period in 2023. The purpose of the trial is to test a civics component with updated format and content and a newly developed English-speaking component “that could become standard.”

21. USCIS Announces ‘Important’ H-2B Supplemental Cap Petition Filing Updates Before Publication of Temporary Final Rule – In response to a federal court order, the Department of Labor’s (DOL) Office of Foreign Labor Certification plans to rescind H-2B registration requirements and propose conforming edits throughout its H-2B regulations. In the interim, DOL said it will use the Notice of Acceptance, issued when an H-2B application meets regulatory requirements and the employer can begin recruiting U.S. workers, to inform an H-2B employer of DOL’s determination of the employer’s temporary need for services or labor.

22. Green Cards Automatically Extended for Naturalization Applicants Who File on 12/12/22 or Later, USCIS Says – U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of Permanent Resident Cards (green cards) for lawful permanent residents (LPRs) who applied for naturalization on December 12, 2022, or later. USCIS said it will update the language on Form N-400 receipt notices to extend green cards for up to 24 months for these applicants. LPRs who filed for naturalization before December 12 will not receive this extension.

23. Registration Process Begins for Ethiopia TPS; DHS Provides Relief for F-1 Nonimmigrant Ethiopian Students – The Department of Homeland Security announced several measures to provide relief for Ethiopians in the United States.

24. DHS Extends and Redesignates TPS for Haiti for 18 Months – The Department of Homeland Security (DHS) announced the extension of temporary protected status (TPS) for Haiti through August 3, 2024. DHS also redesignated Haiti for TPS, allowing eligible Haitian nationals residing in the United States as of November 6, 2022, to apply for TPS through August 3, 2024.

25. DOL Publishes More FAQs on 2022 H-2A Final Rule – The FAQs’ topics include wage and pay obligations and prevailing wages. Examples and tips for employers are included.

26. ABIL Global: Mexico – Mexico has introduced a new online process for the multi-purpose immigration form.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – January 2023

1. USCIS Issues Proposed Rule to Raise Fees and Fund Asylum Program With New $600 Employer Petition Fee

U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on January 4, 2023, to raise fees. The Department of Homeland Security (DHS) also proposes to fund the asylum program with a controversial new Asylum Program Fee of $600 to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Worker. DHS said it has determined “that the Asylum Program Fee is an effective way to shift some costs to requests that are generally submitted by petitioners who have more ability to pay, as opposed to shifting those costs to all other fee payers.” This new $600 fee would be in addition to processing fees for those petitions.

USCIS said it “cannot maintain adequate service levels with the effects of the budget cuts and its current level of spending without lasting impacts on operations.” The proposed rule states that if USCIS fees are not adjusted, “USCIS processing times and backlogs will not improve.”

The proposed changes include, among others, incorporating biometrics costs into the main benefit fee and removing the separate biometrics fee; requiring separate filing fees for Form I-485, Application to Register Permanent Residence or Adjust Status, and associated Form I-131, Application for Travel Document (advance parole), and Form I-765, Application for Employment Authorization; establishing separate fees for Form I-129 by nonimmigrant classification; revising the premium processing timeframe interpretation from calendar days to business days; and creating lower fees for forms filed online.

The proposed fee hikes include, among others:

• Application for Employment Authorization – Online, from current $410 to new $555
• Application for Employment Authorization – Paper, from current $410 to new $650
• Application for Employment Authorization – Online and Paper (with biometric services), from current $495 to new $650
• H-1B Pre-Registration Fee, from current $10 to proposed $215
• I-129 Petition for a Nonimmigrant Worker: H-1 Classifications, from current $460 to proposed $780
• I-129 Petition for L Nonimmigrant Worker, from current $460 to proposed $1,385
• I-129 Petition for O Nonimmigrant Worker, from current $460 to proposed $1,055
• I-140 Immigrant Petition for Alien Worker, from current $700 to proposed $715
• H-2A Petition – Named Beneficiaries, from current $460 to proposed $1,090
• H-2A Petition – Unnamed Beneficiaries, from current $460 to proposed $530
• H-2B Petition – Named Beneficiaries, from current $460 to proposed $1,080
• H-2B Petition – Unnamed Beneficiaries, from current $460 to proposed $580
• I-526 Immigrant Petition by Standalone Investor, from current $3,675 to proposed $11,160
• Immigrant Petition by Regional Center Investor, from current $3,675 to proposed $11,160
• Application for Regional Center Designation, from current $17,795 to proposed $47,695
• I-485 Application to Register Permanent Residence or Adjust Status (with biometric services), from current $1,225 to proposed $1,540

Comments on the proposed rule are due by March 6, 2023. USCIS will hold a public engagement session on January 11, 2023, from 2 to 3:30 p.m. ET. For more information or to register, see https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-virtual-listening-session-on-proposed-rule-to-adjust-certain-immigration-fees.

Details:

• Proposed rule, 88 Fed. Reg. 402 (Jan. 4, 2023). https://www.govinfo.gov/content/pkg/FR-2023-01-04/pdf/2022-27066.pdf
• USCIS news release, Jan. 3, 2023. https://www.uscis.gov/newsroom/news-releases/uscis-issues-proposed-rule-to-adjust-certain-immigration-and-naturalization-fees
• Proposed Fee Rule Frequently Asked Questions, USCIS, https://www.uscis.gov/proposed-fee-rule-frequently-asked-questions

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2. DHS Implements New Processes for Cubans, Haitians, and Nicaraguans and Eliminates Cap for Venezuelans

The Department of Homeland Security (DHS) announced a new process, effective January 6, 2023, for certain qualifying Cubans, Haitians, and Nicaraguans with U.S.-based supporters to travel by air to and temporarily reside in the United States. Such individuals may also apply for work authorization. DHS also eliminated the numerical cap for a similar process for Venezuelans announced previously.

Under the new process, qualifying nationals of Cuba, Haiti, and Nicaragua who are outside the United States and lack U.S. entry documents can be considered, on a case-by-case basis, for advance authorization to travel to the United States and seek a temporary period of humanitarian parole for up to two years if they:

• Have a supporter in the United States who will provide financial and other support;
• Undergo and clear “robust security vetting”;
• Meet other eligibility criteria; and
• Warrant a favorable exercise of discretion.

DHS said it “strongly encourages Cubans, Haitians, Nicaraguans, and Venezuelans seeking entry in the U.S. who do not have and are not eligible for a visa to instead seek entry via this process, as this will be the safest and most effective way to pursue a temporary stay in the United States. Individuals complete the process electronically and should not approach the border to access this process.”

U.S.-based individuals may submit Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, on behalf of named nationals of Cuba, Haiti, or Nicaragua. Neither the U.S. supporter nor the beneficiary must pay the U.S. government a fee for the Form I-134A or participation in this process, DHS said.

Implementation of changes to the parole process for Cubans, Haitians, Nicaraguans, and Venezuelans, effective January 6, 2023, is expected to be announced in notices to be published in the Federal Register on January 9, 2023. DHS began using the Form I–134A for these processes on January 6, 2023.

Details:

• USCIS alert, Jan. 6, 2023. https://www.uscis.gov/newsroom/alerts/dhs-implements-new-processes-for-cubans-haitians-and-nicaraguans-and-eliminates-cap-for-venezuelans
• “Processes for Cubans, Haitians, Nicaraguans, and Venezuelans” page, USCIS. https://www.uscis.gov/CHNV
• Form I-134A, Online Request to be a Supporter and Declaration of Financial Support. https://www.uscis.gov/i-134a
• “Implementation of changes to the parole process for Venezuelans, Haitians, Nicaraguans, and Cubans, DHS, Jan. 9, 2023 (advance copies).

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3. OFLC Completes Random Assignments of H-2B Applications for Second Half of FY 2023 Visa Cap

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has completed the process to randomly assign all H-2B applications submitted during the initial three-day filing window, January 1-3, 2023, requesting an April 1, 2023, work start date for the second half of the fiscal year 2023 H-2B statutory visa cap.

OFLC received a total of 8,693 H-2B applications requesting 142,796 worker positions during this filing period (between January 1-3, 2023). This was an increase from 2022, when it received a total of 7,875 H-2B applications covering 136,555 worker positions. The agency said it will provide written notification to employers (and the employer’s authorized attorney or agent) with their H-2B Assignment Group. On January 9, 2023, OFLC will also publish on its website the list of the H-2B applications assigned to each Assignment Group.

Details:

• OFLC Conducts Randomization Process on H-2B Applications Submitted Requesting an April 1, 2023, Work Start Date,” OFLC, Jan. 4, 2023. https://www.dol.gov/agencies/eta/foreign-labor

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4. Omnibus Spending Legislation Includes Several Immigration-Related Provisions

The Consolidated Appropriations Act, 2023 (H.R. 2617, Public Law No. 117-328, Dec. 29, 2022) includes various immigration-related provisions, such as $800 million in competitive grants under a new U.S. Customs and Border Protection “Shelter and Services” program for state and local governments and nonprofits dealing with an influx of migrants, to help cover the costs of supportive services to migrants, like shelter, transportation, food, first aid, and COVID-19 testing; an extension of the Special Immigrant Visa program, which primarily benefits Afghans, through 2024; millions of dollars in enhancements to border security technology and enforcement; $133 million to meet the refugee admissions goal of 125,000 for fiscal year 2023; and a new grant program to provide “humanitarian assistance that bolsters the operational capabilities of the U.S. Border Patrol.”

Details:

• Text of H.R. 2617. https://www.appropriations.senate.gov/imo/media/doc/JRQ121922.PDF
• Explanatory statements and bill summaries. https://www.appropriations.senate.gov/news/majority/chairman-patrick-leahy-d-vt-releases-fiscal-year-2023-omnibus-appropriations-bill
• Department of Homeland Security explanatory statement. https://www.appropriations.senate.gov/imo/media/doc/Division%20F%20-%20Homeland%20Statement%20FY23.pdf
• “Federal Spending Bill to Include $800 Million in Grants for Cities Dealing With Migrant Crisis,” Politico, Dec. 20, 2022. https://www.politico.com/news/2022/12/20/omnibus-spending-bill-migrants-00074785
• “Congress Reaches Deal to Save U.S. Visa Program for War Interpreters,” Stars and Stripes, Dec. 20, 2022. https://www.stripes.com/theaters/us/2022-12-20/siv-afghan-ndaa-8486433.html

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5. U.S. Embassy in Havana Resumes Full Immigrant Visa Processing

On January 4, 2023, the U.S. Embassy in Havana resumed full immigrant visa processing, including all visa categories. The embassy also announced that the United States is expanding consular operations in Havana and restarting the Cuban Family Reunification Parole Program.

Since 2017, the U.S. Embassy in Georgetown, Guyana, was serving as the primary processing location for Cuban immigrant visa applicants while the U.S. Embassy in Havana was closed due to unexplained health-related incidents.

Details:

• Press Release, U.S. Embassy, Havana, Cuba, Dec. 30, 2022. https://cu.usembassy.gov/resumption-of-visa-services/
• “U.S. Embassy in Cuba Reopening Visa and Consular Services,” NBC News, Jan. 4, 2023. https://www.nbcnews.com/news/latino/us-embassy-cuba-reopening-visa-consular-services-rcna64217

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6. Supreme Court Extends Temporary Stay of ‘Title 42’

On December 19, 2022, Supreme Court Chief Justice John Roberts ordered Title 42, which allows the immediate expulsion of many migrants because of COVID-19 concerns, to temporarily remain in effect to allow the full Supreme Court time to consider the issue. On December 27, 2022, the Supreme Court extended Title 42. The Court plans to consider in late February 2023 whether the 19 states objecting to Title 42’s termination have legal standing to do so.

The Court’s December 27 opinion noted that its review on certiorari “is limited to the question of intervention. While the underlying merits of the District Court’s summary judgment order [terminating Title 42] are pertinent to that analysis, the Court does not grant review of those merits, which have not yet been addressed by the Court of Appeals.”

The court’s three liberal justices objected, as did Justice Neil Gorsuch, who wrote, “The current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Karine Jean-Pierre, the White House press secretary, said that although the Biden administration will comply with the Supreme Court’s action, “Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely.”

Details:

• “Supreme Court Says Trump-Era Border Restriction Will Remain in Effect While Legal Challenges Play Out,” CNN, Dec. 27, 2022. https://www.cnn.com/2022/12/27/politics/supreme-court-title-42/index.html
• “Supreme Court Leaves in Place Title 42 Border Policy for Now,” Washington Post, Dec. 27, 2022. https://www.washingtonpost.com/politics/2022/12/27/title-42-supreme-court-decision/ (subscription required)
• Arizona v. Mayorkas, order issued Dec. 27, 2022. https://www.supremecourt.gov/opinions/22pdf/22a544_n758.pdf
• Arizona v. Mayorkas, order issued Dec. 19, 2022. https://www.supremecourt.gov/orders/courtorders/121922zr_g314.pdf
• Federal respondents’ opposition to application for a stay pending certiorari, Dec. 20, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250530/20221220190658873_22A544%20Govt%20opp%20to%20Ariz%20stay%20final%20corrected.pdf
• Application for a stay, submitted to Chief Justice Roberts Dec. 19, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250328/20221219140309326_Title%2042%20-%20Emergency%20Application%20for%20Stay%20File%20Version.pdf
• Reply of applicant Arizona, et al. filed, Dec. 21, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250553/20221221084240400_Title%2042%20-%20Emergency%20Stay%20Reply%20File%20Version%20Final%202.pdf

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7. Visa Bulletin for January 2023 Reports on Availability in the Employment First Category for China and India, Unavailability of Religious Workers Category

The Department of State’s (DOS) Visa Bulletin for January includes an update on visa availability in the employment first category for China and India. The bulletin states that it has become necessary to establish employment first preference final action and application filing dates for China and India, effective in January, to hold number use within the maximum allowed under the fiscal year 2023 annual limit. Applicants from China and India are subject to a final action date of 01FEB22 and an application filing date of 01JUN22.

“This situation will be continually monitored, and any necessary adjustments will be made accordingly,” the bulletin states.

Details:

• Department of State’s Visa Bulletin for January 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-january-2023.html

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8. TPS for Yemen Extended, Redesignated

The Department of Homeland Security (DHS) extended and redesignated Yemen for temporary protected status (TPS) in a Federal Register notice published on January 3, 2023.

DHS is extending TPS for Yemen for 18 months, beginning on March 4, 2023, through September 3, 2024. Existing Yemen TPS beneficiaries who wish to extend their status and apply for renewal of their work authorization must re-register during the 60-day re-registration period, which begins on the date of publication.

DHS is also redesignating Yemen for TPS, which allows additional Yemeni nationals, and individuals having no nationality who last habitually resided in Yemen, who have been continuously residing in the United States since December 29, 2022, to apply for TPS for the first time and apply for work authorization during the initial registration period, which begins on the date of publication and will remain in effect through September 3, 2024. Initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since March 4, 2023, the effective date of the redesignation.

DHS noted that individuals who have a Yemen TPS application (Form I-821) and/or Application for Employment Authorization (Form I-765) that was still pending as of the date of publication of the notice do not need to file either application again. If USCIS approves an individual’s pending Form I-821, the agency will grant the individual TPS through September 3, 2024. Similarly, if USCIS approves a pending TPS-related Form I-765, it will issue the individual a new EAD that will be valid through the same date.

Details:

• Federal Register notice (advance copy).

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9. CDC Announces New COVID-19 Testing Requirement for Air Passengers From China

Effective January 5, 2023, the Centers for Disease Control and Prevention (CDC) is requiring a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China (PRC) and the Special Administrative Regions of Hong Kong and Macau.

CDC said it is announcing this step “to slow the spread of COVID-19 in the United States during the surge in COVID-19 cases in the PRC given the lack of adequate and transparent epidemiological and viral genomic sequence data being reported from the PRC. These data are critical to monitor the case surge effectively and decrease the chance for entry of a novel variant of concern. CDC will continue to monitor the situation and adjust our approach as necessary.”

CDC made the decision following China’s announcement that it is dropping quarantine requirements for inbound international arrivals and resuming outbound travel for Chinese citizens. According to reports, a regional health chief in Hong Kong said that almost half of air passengers arriving on December 26, 2022, in Italy’s Milan airport from China tested positive for COVID-19. Although some countries in addition to the United States have imposed restrictions, such as Japan, Spain, and Italy, so far others are not changing their entry requirements, such as France and Great Britain, although the latter is reportedly considering the issue. India imposed similar restrictions on travelers from Japan, South Korea, and Thailand, in addition to China.

Details:

• CDC Press Release, Dec. 28, 2022. https://www.cdc.gov/media/releases/2022/p1228-COVID-china.html
• “China Health Alert: Negative COVID-1 Test Requirement for Air Passengers Entering the United States,” Dec. 28, 2022. https://travel.state.gov/content/travel/en/traveladvisories/ea/China-Negative-COVID-19-Test-Requirement-for-Air-Passengers-Entering-the-United-States.html
• “Chinese Tourists Are Ready to Travel Abroad Again. Here’s Why Some Countries Are Hesitant,” CNN, Dec. 30, 2022. https://www.cnn.com/travel/article/china-covid-travel-restrictions-intl-hnk/index.html
• “China to Scrap Quarantine for Inbound Travelers in Major Step Toward Reopening,” CNN, Dec. 26, 2022. https://www.cnn.com/2022/12/26/business/china-travel-covid-quarantine/index.html

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10. DHS, DOJ Further Delay Effective Date of Asylum Security Bars Rule

The Departments of Homeland Security and Justice have further extended until December 31, 2024, the effective date of a final rule that clarifies that the “danger to the security of the United States” standard in the statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns and makes certain other changes. The effective date of the final rule, originally published on December 23, 2020, has been extended several times. The rule would make noncitizens ineligible for asylum if, among other things, they were physically present in a country in which a communicable disease was prevalent or epidemic, and the Secretary of Homeland Security and the Attorney General determined that their physical presence in the United States would cause a risk to public health.

Comments may be submitted by February 27, 2023, by following the instructions in the interim final rule published on December 28, 2022.

Details:

• DHS/DOJ Interim Final Rule, 87 Fed. Reg. 79789 (Dec. 28, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-28/pdf/2022-28121.pdf

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11. DOL Publishes Round 4 FAQs on H-2A Application Filing and Processing Under Final Rule

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued a set of frequently asked questions (FAQs), “Round 4: H-2A Application Filing and Processing,” associated with the publication of the final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.”

Topics include how to file, timing considerations, multiple worksites, National Processing Center processing, amendment requests, and withdrawal requests.

Details:

• “Round 4: H-2A Application Filing and Processing,” OFLC FAQ, Dec. 30, 2022. https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Round%2004_2022%20H-2A%20FAQs_H-2A%20App%20Filing%20and%20Processing.pdf

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12. DHS Public Charge Ground of Inadmissibility Final Rule Effective December 23

On December 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule went into effect. The previously announced final rule “provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. This final rule restores the historical understanding of a ‘public charge’ that had been in place for decades before the previous administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination,” DHS said.

When making a public charge inadmissibility determination under the final rule, DHS said it will consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills”; a sufficient “Affidavit of Support Under Section 213A of the INA (when one is required)”; and prior or current receipt of “Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called ‘General Assistance’); or long-term institutionalization at government expense.”

For public charge inadmissibility determinations, DHS will not consider receipt of noncash benefits (for example, the Supplemental Nutrition Assistance Program, public housing, school lunch programs) other than long-term institutionalization at government expense.

Applicants must file the updated 12/23/22 edition of I-485, Application to Register Permanent Residence or Adjust Status. Earlier versions will be rejected, U.S. Citizenship and Immigration Services (USCIS) said.

Details:

• USCIS alert, Dec. 19, 2022. https://www.uscis.gov/newsroom/alerts/dhss-public-charge-final-rule-goes-into-effect-on-dec-23
• Public Charge Ground of Inadmissibility, DHS Final Rule, 87 Fed. Reg. 55472 (Sept. 9, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-09/pdf/2022-18867.pdf
• USCIS Policy Manual update, Part G—Public Charge Ground of Inadmissibility. https://www.uscis.gov/policy-manual/volume-8-part-g
• Updated Form I-485, Application to Register Permanent Residence or Adjust Status (12/23/22 edition). https://www.uscis.gov/i-485
• Public Charge Resources, USCIS. https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/public-charge-resources
• Clarifying the 2022 Public Charge Final Rule (infographic). https://www.uscis.gov/sites/default/files/document/flyers/PublicChargeFinalRule2022_Infographic_V4_508.pdf

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13. E-Verify Restores Employers’ Ability to Upload Multiple Hiring Sites Simultaneously

E‑Verify has restored the ability of employers, employer agents, and corporate administrators to upload multiple hiring sites simultaneously. E-Verify said this feature increases efficiency for companies with multiple hiring sites by providing an alternative to manual entry and is available for all access methods when adding hiring sites.

An account may have an unlimited number of hiring sites, but no more than 1,000 hiring sites may be uploaded at a time. Users can add multiple hiring sites by uploading a CSV file during initial enrollment or within the company profile post-enrollment. Companies must upload a valid CSV file that follows the requirements listed on the “View CSV Guidelines” page. E‑Verify provides a CSV template and a link to the “View CSV Guidelines” page during the bulk upload process.

Questions may be emailed to [email protected].

Details:

• E-Verify notice.

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14. USCIS Provides List of Options for Nonimmigrant Workers Following Termination of Employment

On December 19, 2022, U.S. Citizenship and Immigration Services (USCIS) provided a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination of employment.

The compilation includes details on:

• A discretionary 60-day grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.
• Portability to a new employer, allowing workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer (commonly known as “porting”).

Other options include change of status, change of status and employer, adjustment of status, period of authorized stay with a “compelling circumstances” employment authorization document, expedited adjudication criteria, and departure from the United States and seeking readmission in the same or another classification.

Details:

• USCIS alert, Dec. 19, 2022. https://www.uscis.gov/newsroom/alerts/options-for-nonimmigrant-workers-following-termination-of-employment

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15. USCIS Seeks Comments on EB-5 Regional Center Forms for Investors

U.S. Citizenship and Immigration Services (USCIS) seeks comments until January 23, 2023, on two forms associated with the EB-5 Regional Center (RC) program.

USCIS explained that on March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act of 2022, which immediately repealed the former RC program statute. The law also reauthorized a “substantially reformed” RC program, effective May 14, 2022. USCIS said that although it will continue to provide similar services for the newly reformed RC program as it did under the former RC program, the newly authorized program “has a different legal framework and requirements from the previously authorized program.” Consequently, USCIS concluded that Form I-526, Immigrant Petition by Alien Entrepreneur, associated with the EB-5 program, would not gather sufficient information to adjudicate investor petitions under the new program.

Accordingly, USCIS split the former Form I-526, Immigrant Petition by Alien Entrepreneur, into two versions: Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. USCIS said the two separate forms were intended “to better streamline the adjudication process for Standalone Investors and Regional Center Investors; specifically, Form I-526 will be used by a Standalone Investor and Form
I-526E will be used by an investor pooling their investment with one or more qualified immigrants” under the new RC program to petition for status as an immigrant to the United States. USCIS began accepting the new Forms I-526 and I-526E on July 12, 2022. USCIS said it will continue to adjudicate all Forms I-526 filed before March 15, 2022 (the date of enactment of the EB-5 Reform and Integrity Act of 2022), according to the applicable eligibility requirements at the time the petition was filed.

On June 24, 2022, in Behring v. Mayorkas, the U.S. District Court for the Northern District of California preliminarily enjoined USCIS from “treating as deauthorized the previously designated regional centers” including “processing new I-526 petitions from immigrants investing through previously authorized regional centers…just as the agency would do for a newly approved regional center.” On September 1, 2022, the U.S. District Court in Behring approved a settlement between the parties. Under the terms of the settlement, previously designated RCs did not lose their designations as a result of the EB-5 Reform and Integrity Act of 2022. USCIS said that as it is working to implement the settlement, if it determines changes to the Forms
I-526 and I-526E are necessary, it will “pursue such changes through either this form revision process or other appropriate mechanism.”

Details:

• USCIS 30-day notice. 87 Fed. Reg. 78990 (Dec. 23, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-23/pdf/2022-27973.pdf
• I-526, Immigrant Petition by Standalone Investor. https://www.uscis.gov/i-526
• I-526E, Immigrant Petition by Regional Center Investor. https://www.uscis.gov/i-526e

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16. USCIS Increases H-2B Nonimmigrant Visa Availability

In a temporary final rule published on December 15, 2022, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has increased the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year (FY) 2023. To “assist U.S. businesses that need workers to begin work on different start dates,” the Departments of Homeland Security (DHS) and Labor (DOL) will distribute the supplemental visas in several allocations, including two separate allocations in the second half of FY 2023.

Of the total 64,716 visas made available, 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, or Haiti. All 64,716 visas are available only to “those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form.” In addition to making the additional 64,716 visas available under the FY 2023 time-limited authority, DHS is exercising its general H–2B regulatory authority to provide temporary portability flexibility again by allowing H–2B workers who are already in the United States to begin work immediately after an H–2B petition (supported by a valid temporary labor certification) is received by U.S. Citizenship and Immigration Services (USCIS) and before it is approved.

DHS will not accept any H-2B petitions under provisions related to the FY 2023 supplemental numerical allocations after September 15, 2023, and will not approve any such H-2B petitions after September 30, 2023. Provisions related to portability are only available to petitioners and H-2B nonimmigrant workers starting work by January 24, 2024.

USCIS previously announced that petitioners requesting additional H-2B workers under the rule must file their petitions at the California Service Center. This change does not affect the filing locations for petitions filed under the permanent H-2B regulations, whether they are cap-subject or cap-exempt. USCIS also announced that it is temporarily suspending premium processing for H-2B supplemental cap petitions until January 3, 2023. Premium processing remains available for all other H-2B petitions.

DHS and DOL are accepting written public comments on the temporary final rule and related new information collection (Form ETA-9142B-CAA-7) by February 13, 2023. Instructions on submitting comments are included in the temporary final rule.

Details:

• Temporary final rule, DOL/DHS, 87 Fed. Reg. 76816 (Dec. 15, 2022)
• “DHS and DOL Announce Availability of Additional H-2B Visas for Fiscal Year 2023,” USCIS News Release, Dec. 12, 2022. https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-fiscal-year-2023
• “USCIS Announces Important Filing Information for Upcoming FY 2023 H-2B Supplemental Cap Petitions,” USCIS Alert, Dec. 8, 2022
• “DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for Fiscal Year 2023,” USCIS Alert, Oct. 12, 2022

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17. DHS Issues Update on Southwest Border Security and Preparedness Under Court-Ordered Lifting of ‘Title 42’; Termination of ‘Remain in Mexico’ Program Paused

The Department of Homeland Security (DHS) issued an update on December 13, 2022, on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld by the D.C. Circuit Court of Appeals in a ruling on December 16, 2022. Title 42 prevented many migrants from seeking asylum in the United States because of COVID-19 concerns and required them to wait in Mexico. DHS said the update “reviews the DHS-led whole-of-government framework guiding preparations for and management of increased encounters of noncitizens at our Southwest Border following the lifting of the Title 42 public health order.”

In November, a district court issued the ruling that required the lifting of the Title 42 public health order effective December 21, 2022. DHS said that individuals who cross the border into the United States without legal authorization will be processed for removal and, if unable to establish a legal basis to remain in the United States, promptly removed. DHS said it anticipates that “migration levels will increase as smugglers seek to take advantage of and profit from vulnerable migrants once the Title 42 public health order is lifted. This will likely include spreading false information about what the end of Title 42 will mean.” Reports from some shelters and border areas such as El Paso, Texas, indicate that a recent influx of migrants has been overwhelming local resources.

In other news, a federal judge in Texas paused the termination of the Migrant Protection Protocols, informally known as the “Remain in Mexico” program, which requires some non-Mexican citizens who entered the United States to wait in Mexico during their immigration proceedings, instead of allowing them into, or detaining them in, the United States. A DHS official said the Biden administration disagreed with that decision and was determining “next steps.”

Details:

• “U.S. Court Rejects Maintaining COVID-19 Asylum Restrictions,” Associated Press, Dec. 17, 2022. https://apnews.com/article/texas-donald-trump-immigration-missouri-amarillo-e6f9ce07b955bdc962118a798129f319
• “Federal Judge Says Biden Can’t Yet End Trump-Era ‘Remain in Mexico’ Immigration Policy,” CNN, Dec. 16, 2022. https://www.cnn.com/2022/12/15/politics/remain-in-mexico-immigration/index.html
• Texas v. Biden (“Remain in Mexico” ruling), Dec. 15, 2022. https://www.documentcloud.org/documents/23462906-ruling-on-remain-in-mexico-program

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18. OFLC Publishes New 2023 H-2A Hourly Adverse Effect Wage Rates for Non-Range Occupations and for Herding or Production of Livestock on the Range

In two notices, the Department of Labor’s Employment and Training Administration (ETA) announced the new Adverse Effect Wage Rates (AEWRs) under the H-2A program for (1) agricultural labor or services other than the herding or production of livestock on the range, and (2) occupations involving herding or production of livestock on the range.

Details:

• Notice announcing 2023 hourly AEWRs for non-range occupations, 87 Fed. Reg. 77142 (Dec. 16, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-16/pdf/2022-27332.pdf
• Notice announcing 2023 AEWRs for herding or production of livestock on the range, 87 Fed. 77141 (Dec. 16, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-16/pdf/2022-27333.pdf
• AEWRs by state (page), ETA. https://www.dol.gov/agencies/eta/foreign-labor/wages/adverse-effect-wage-rates
• AEWRs by state (map), ETA. https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/AEWR-Map-2023.pdf

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19. Guangzhou Immigrant Visa Unit Closes Until Further Notice; Limited Services Announced at Other U.S. Embassies and Consulates in China

The Immigrant Visa Unit of the U.S. consulate in Guangzhou, China, announced that beginning December 19, 2022, it is closed for regular visa services until further notice due to limited resources.  The unit will notify the public once it is able to resume normal immigrant visa (IV) operations and will communicate with IV applicants to reschedule their canceled appointments.

A web form is available at https://china.usembassy-china.org.cn/visas/immigrant-visas/immigrant-visa-unit-question/  to submit questions, although response times are expected to be delayed.

The U.S. Mission in China also announced that due to the surge of COVID-19 infections across China, the U.S. embassy in Beijing and the U.S. consulate in Shanghai are providing passport and emergency citizen services only. The U.S. consulates in Wuhan, Shenyang, and Guangzhou are only providing emergency consular services until further notice.

Details:

• “Alert: Update From U.S. Mission China Consular Services for December 15, 2022,” Dec. 16, 2022. https://china.usembassy-china.org.cn/alert-update-from-u-s-mission-china-consular-services-for-december-15-2022/
• “Alert: Reduction in Non-Emergency Consular Operations at U.S. Consulate Shenyang and U.S. Consulate Wuhan,” Dec. 13, 2022. https://china.usembassy-china.org.cn/alert-reduction-in-non-emergency-consular-operations-at-u-s-consulate-shenyang-and-u-s-consulate-wuhan/

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20. USCIS Announces Trial for Naturalization Test Updates

The Department of Homeland Security announced that U.S. Citizenship and Immigration Services (USCIS) intends to conduct a trial for updates to the current naturalization test. The trial is tentatively scheduled for a five-month period in 2023.

The purpose of the trial is to test a civics component with updated format and content and a newly developed English-speaking component “that could become standard.” The naturalization test has four components: reading, writing, civics, and ability to speak English. Currently, the reading and writing portions of the naturalization test are standard.

In response to President Biden’s executive order 14012, which included a directive to review the naturalization process, USCIS subject-matter experts reviewed the naturalization test and recommended redesigning the speaking and civics portions to improve standards. The proposed revisions are also “consistent with the feedback that USCIS has received from multiple external stakeholder groups,” the agency said.

USCIS will conduct the trial with the help of volunteer community-based organizations (CBOs) that work with immigrant English-language learners and lawful permanent residents preparing for naturalization. USCIS will seek approximately 1,500 individuals enrolled in adult education classes to take the trial test. The agency will conduct national engagements for interested CBOs and will then publish a request for volunteer CBOs.

Details:

• “USCIS News Release, Dec. 14, 2022. https://www.uscis.gov/newsroom/news-releases/uscis-announces-trial-for-updates-to-the-naturalization-test

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21. USCIS Announces ‘Important’ H-2B Supplemental Cap Petition Filing Updates Before Publication of Temporary Final Rule

On December 8, 2022, U.S. Citizenship and Immigration Services (USCIS) announced “important” filing updates for petitioners who will be requesting additional H-2B workers for fiscal year 2023 under the upcoming temporary final rule. USCIS said it was announcing these updates to assist petitioners who wish to begin preparing their petitions before publication of a rule in the Federal Register.

Highlights of the announcement include:

Centralized Filing Location

Petitioners requesting additional H-2B workers under the upcoming rule must file their petitions at the California Service Center. Petitions filed under the supplemental allocations in this rule at any location other than the California Service Center will be rejected and the filing fees will be returned. This change does not affect the filing locations for petitions filed under the permanent H-2B regulations, whether they are cap-subject or cap-exempt.

Temporary Suspension of Premium Processing

Immediately upon publication of the upcoming rule, USCIS is temporarily suspending premium processing for H-2B supplemental cap petitions until January 3, 2023. Until premium processing resumes for H-2B supplemental cap petitions, USCIS said it will reject any Form I-907 concurrently filed with a Form I-129 filed under the supplemental allocations in the upcoming rule. USCIS has warned employers not to “file a request to upgrade to premium processing until you have received a receipt notice and can submit your request with the receipt number for your H-2B petition. If you request an upgrade to premium processing and have not provided this information, we will reject your Form I-907 and return the filing fee.”

Premium processing remains available for all other H-2B petitions.

Details:

• “USCIS Announces Important Filing Information for Upcoming FY 2023 H-2B Supplemental Cap Petitions,” USCIS Alert, Dec. 8, 2022
• “DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for Fiscal Year 2023,” USCIS Alert, Oct. 12, 2022

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22. Green Cards Automatically Extended for Naturalization Applicants Who File on 12/12/22 or Later, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) said it is automatically extending the validity of Permanent Resident Cards (green cards) for lawful permanent residents (LPRs) who applied for naturalization on December 12, 2022, or later.

USCIS will update the language on Form N-400 receipt notices to extend green cards for up to 24 months for these applicants. The receipt notice can be presented with the expired green card as evidence of continued status as well as for identity and employment authorization under List A of Employment Eligibility Verification (Form I-9) if presented before the expiration of the 24-month extension period, the agency said.

LPRs who filed for naturalization before December 12, 2022, will not receive a Form N-400 receipt notice with the extension. If their green card expires, they must still file Form I-90 or receive an ADIT stamp in their passport to maintain valid evidence of their LPR status. LPRs who lose their green card still must file Form I-90, even if they have applied for naturalization and received the automatic extension under the updated policy. USCIS said this is because noncitizens must carry within their personal possession proof of registration, such as the green card and any evidence of extensions, “or may be subject to criminal prosecution under INA 264(e).” Applicants who require an ADIT stamp may request an appointment at a USCIS Field Office from the USCIS Contact Center.

Details:

• “USCIS Updates Policy to Automatically Extend Green Cards for Naturalization Applicants,” USCIS Alert, Dec. 9, 2022. https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-to-automatically-extend-green-cards-for-naturalization-applicants
• “Extension of Permanent Resident Card for Naturalization Applicants,” USCIS Policy Alert, PA-2022-26, Dec. 9, 2022. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20221209-ExtendingPRC.pdf
• USCIS Policy Manual, https://www.uscis.gov/policy-manual

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23. Registration Process Begins for Ethiopia TPS; DHS Provides Relief for F-1 Nonimmigrant Ethiopian Students

The Department of Homeland Security (DHS) announced several measures to provide relief for Ethiopians in the United States:

Registration Process for Ethiopia TPS Begins

In October, DHS announced the 18-month designation of Ethiopia for temporary protected status (TPS). The registration process began on December 12, 2022, and runs through June 12, 2024. U.S. Citizenship and Immigration Services (USCIS) estimates that about 26,700 individuals may be eligible for TPS under Ethiopia’s designation.

To be eligible for TPS under Ethiopia’s designation, individuals must demonstrate their continuous residence in the United States since October 20, 2022, and continuous physical presence in the United States since December 12, 2022. Individuals arriving in the United States after October 20, 2022, are not eligible for TPS under this designation and may be subject to removal if they have no other authorization to be in the United States, DHS said.

Relief Provided for F-1 Nonimmigrant Ethiopian Students

Effective December 12, 2022, through June 12, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Ethiopia, regardless of country of birth (or individuals having no nationality who last habitually resided in Ethiopia), who are experiencing severe economic hardship as a direct result of the current crisis in Ethiopia.

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

Details:

• “DHS Announces Registration Process for Temporary Protected Status for Ethiopia,” USCIS News Release, Dec. 9, 2022. https://www.uscis.gov/newsroom/news-releases/dhs-announces-registration-process-for-temporary-protected-status-for-ethiopia
• “Designation of Ethiopia for Temporary Protected Status,” USCIS, 87 Fed. Reg. 76074 (Dec. 12, 2022) (advance copy). https://www.govinfo.gov/content/pkg/FR-2022-12-12/pdf/2022-26880.pdf
• “DHS Designates Ethiopia for Temporary Protected Status for 18 Months,” DHS Press Release, Oct. 21, 2022. https://www.dhs.gov/news/2022/10/21/dhs-designates-ethiopia-temporary-protected-status-18-months
• “Employment Authorization for Ethiopian F-1 Nonimmigrant Students Experiencing Severe Economic Hardship as a Direct Result of the Current Crisis in Ethiopia,” DHS notice. 87 Fed. Reg. 76068 (Dec. 12, 2022) (advance copy). https://www.govinfo.gov/content/pkg/FR-2022-12-12/pdf/2022-26874.pdf

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24. DHS Extends and Redesignates TPS for Haiti for 18 Months

The Department of Homeland Security (DHS) announced the extension of temporary protected status (TPS) for Haiti for an additional 18 months, from February 4, 2023, through August 3, 2024. DHS also redesignated Haiti for TPS, allowing Haitian nationals residing in the United States as of November 6, 2022, to apply for TPS through August 3, 2024, so long as they meet all eligibility requirements.

A Federal Register notice will explain the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register and renew their employment authorization documents (EADs) and for new applicants to submit an initial application under the redesignation and apply for an EAD, DHS said.

DHS noted that “Haitians entering the United States after November 6, 2022, are not eligible for TPS and, like other individuals without a legal basis to remain in the United States, will be subject to removal.”

Details:

• “Secretary Mayorkas Extends and Redesignates Temporary Protected Status for Haiti for 18 Months,” DHS Press Release, Dec. 5, 2022. https://www.dhs.gov/news/2022/12/05/secretary-mayorkas-extends-and-redesignates-temporary-protected-status-haiti-18
• USCIS Temporary Protected Status page, updated Dec. 5, 2022. https://www.uscis.gov/humanitarian/temporary-protected-status

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25. DOL Publishes More FAQs on 2022 H-2A Final Rule

On December 7, 2022, the Department of Labor’s Office of Foreign Labor Certification (OFLC) issued its third round of frequently asked questions related to the 2022 H-2A final rule published in October, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.”

The FAQs’ topics include wage and pay obligations and prevailing wages. Examples and tips for employers are included. One tip notes that if an employer signs work contracts before the State Workforce Agency (SWA) and the OFLC National Processing Center (NPC) accept the job order for recruitment and the SWA or NPC subsequently directs the employer to modify the wage rate listed on the job order, the employer must also modify its work contracts to reflect the approved wage rate.

Details:

• FAQ, “Round 3: Job Offers, Assurances, and Obligations—Wages,” OFLC, Dec. 7, 2022

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26. ABIL Global: Mexico

Mexico has introduced a new online process for the multi-purpose immigration form.

Due to recent adjustments implemented by the immigration authorities (National Immigration institute), the FMM form (multi-purpose immigration form that was usually delivered by airlines to travelers to Mexican national territory or handed out at any port of entry) will no longer be delivered. Only the usual entry stamp will be stamped in the traveler’s passport indicating the date of entry and the maximum number of days of authorized stay.

Foreigners who require an FMM form to carry out an immigration procedure may scan a QR code at the port of entry. Once the QR code has been scanned and the foreigner has entered the corresponding website, he or she must create an account and provide the requested data and documents to obtain an Electronic Migratory Multiple Form.

Upon entering Mexican territory, the foreigner must clearly state the purpose of the trip to the immigration authorities and show the corresponding documentation. Otherwise, the immigration officer may register an incorrect immigration status that would prevent the foreigner from continuing with the immigration process.

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New Publications and Items of Interest

Compensation for third-country nationals in Afghanistan. Brown University’s Watson Institute published a report, “Uncompensated Allies: How Contracting Companies and U.S. Government Agencies Failed Third-Country Nationals in Afghanistan.” The report examines labor abuses during the war in Afghanistan, focusing on how the United States is denying legally required compensation to foreign workers in war zones. The U.S. government leaned heavily on contractors to do its essential work during the war in Afghanistan. In 2020, approximately 65% of wartime contractors were citizens of Afghanistan or a third-party country such as Nepal. The paper states that the U.S. military and Department of Labor have done little to enforce the U.S. Defense Base Act, which calls for the provision of compensation to all workers, regardless of their nationality, injured under U.S. contracts, and for the provision of financial compensation to their kin in case of death. https://watson.brown.edu/costsofwar/papers/2022/MigrantWorkers

H-2B checklist for employers on recruitment report content. The Department of Labor’s Employment and Training Administration released “H-2B Program: Pre-Final Determination Recruitment Report Content Checklist and Best Practices Guide.” The checklist provides best-practice tips and guidance to assist employers in preparing and submitting “clear and complete” recruitment reports to enable final determinations of H-2B applications for temporary employment certification.

E-Verify free webinars. U.S. Citizenship and Immigration Services announced topics for upcoming E-Verify and Form I-9 webinars, including E-Verify for Existing Users, E-Verify for Web Services Users, E-Verify in 30, E-Verify Overview, Employee Rights, Employer Responsibilities, Federal Contractor E-Verify, Form I-9, and myE-Verify. Customized sessions are also available. All webinars are eligible for professional development credits (PDCs) through the Society of Human Resource Management and the Human Resource Certification Institute except for E-Verify in 30 and myE-Verify. For more information or to register, see https://www.e-verify.gov/about-e-verify/e-verify-webinars. To arrange a topic, date, and time for a customized webinar, email [email protected].

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

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

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration

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

Many ABIL members were recognized by EB-5 Investors Magazine’s Top 25 awards:

Top 25 Immigration Attorneys (https://www.eb5investors.com/magazine/article/eb5-top25-winners-immigration-attorneys):

Joseph Barnett – WR Immigration

Nicolai Hinrichsen – Miller Mayer

John Meyer – Foster LLP

Anusree Nair – Klasko Immigration Law Partners

Kristal Ozmun – Miller Mayer

Top 10 Attorneys in Specialized Fields (https://www.eb5investors.com/magazine/article/eb5-top25-winners-specialized-fields):

Charles Foster – Foster LLP

Ronald Klasko – Klasko Immigration Law Partners

Bernard Wolfsdorf – WR Immigration

Stephen Yale-Loehr – Miller Mayer

Top 5 Litigation Attorneys (https://www.eb5investors.com/magazine/article/eb5-top25-winners-litigation-attorneys):

Ira Kurzban – Kurzban Kurzban Tetzeli & Pratt

Daniel Lundy – Klasko Immigration Law Partners

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) spoke about the Title 42 case pending at the U.S. Supreme Court on Georgia Public Broadcasting News’s “Political Rewind” on January 5, 2023. https://www.gpb.org/news/2023/01/05/political-rewind-kemp-wont-support-early-democratic-primary-mccarthy-fight-be

Mr. Kuck released a video, “Immigration Wants Your Money!!,” concerning new proposed fee increases. https://www.linkedin.com/video/live/urn:li:ugcPost:7016465693705465856/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Jessica Paszko co-authored a new blog post: “2022 in Perspective From The Insightful Immigration Blog.” http://blog.cyrusmehta.com/2022/12/2022-in-perspective-from-the-insightful-immigration-blog.html

Mr. Mehta and Kaitlyn Box have co-authored several new blog posts: “United States v. Hansen: Supreme Court Once Again Agrees to Hear Constitutionality of a Smuggling Statute That Could Impact Immigration Lawyers,” http://blog.cyrusmehta.com/2022/12/united-states-v-hansen-supreme-court-once-again-agrees-to-hear-constitutionality-of-a-smuggling-statute-that-could-impact-immigration-lawyers.html; and “Immigration Enforcement and Prosecutorial Discretion Go Hand in Hand: Will the Supreme Court Upset the Balance?” http://blog.cyrusmehta.com/2022/12/immigration-enforcement-and-prosecutorial-discretion-go-hand-in-hand-will-the-supreme-court-upset-this-balance.html

Seyfarth Shaw published “New Year, New Fees? Proposed USCIS Fee Increases.” https://www.seyfarth.com/news-insights/new-year-new-fees-proposed-uscis-fee-increases.html

WR Immigration has published “End of the Year Recap.” This article looks back at all that happened in 2022, including some of the biggest webinars, awards, and news from WR Immigration. https://wolfsdorf.com/wr-immigration-end-of-the-year-recap/

Charlie Oppenheim, formerly the Department of State’s Chief of Immigrant Visa Control and Reporting, has joined WR Immigration as Director of Visa Consulting Services and will lead WR’s Government Relations Group. For more than two decades, Mr. Oppenheim was responsible for the monthly and annual use of visa number allocations. In that capacity, he regularly provided analysis and assessment of the impact of proposed legislation on visa availability and workload impact for overseas posts. The WR Immigration announcement is at https://wolfsdorf.com/former-dos-chief-of-immigrant-visa-control-charlie-oppenheim-joins-wr-immigration-as-director-of-visa-consulting/ The first “Chatting with Charlie” webinar, “Demystifying the Immigrant Visa Backlogs and Looking at the Crystal Ball,” will be held Thursday, December 15, 2022, at 11 a.m. PT. For more information, see “New Publications and Items of Interest,” above.

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by CBS News in “U.S. Proposes Hiking Fees for Work-Related Immigration Applications to Fund Asylum Program.” Mr. Yale-Loehr said, “The USCIS needs more money to help dig itself out of a massive backlog and to modernize its technology. But it might not legally be able to force employers to pay for asylum-related costs. Employers might sue to block some of the new fee increases if they don’t seem justified.”

Mr. Yale-Loehr was quoted by Law360 in “Top Immigration Cases to Watch in 2023.” Mr. Yale-Loehr said, “The immigration courts are certainly overwhelmed. They have 1.9 million cases pending and many of these cases involve important issues, like whether someone will be persecuted or killed if they go back home. It’s like trying to decide death penalty cases in a traffic court setting.” Regarding the growing number of mandamus cases in federal court challenging delayed applications, visas, and work permits, he noted, “I think we’re going to see some tension there between people saying, ‘I’ve got to sue because I’ve been waiting for two years,’ and whether federal courts will go along with that or not.” https://www.law360.com/immigration/articles/1553281/top-immigration-cases-to-watch-in-2023 (registration required)

Mr. Yale-Loehr was quoted by MarketWatch in ” ‘We Need More People,’ Says Fed’s Powell, But What Does That Mean for Immigration Reform?” Commenting on remarks by Federal Reserve chief Jerome Powell that recent lower immigration has factored into the U.S. labor shortage and questions about whether such remarks could lead to progress on immigration legislation next year, Mr. Yale-Loehr said that Mr. Powell’s remarks could be seen as part of a slow process that eventually results in long-awaited fixes to the U.S. immigration system. “To me, it’s like water dripping on a rock. A single drop of water, whether it’s from Fed Chairman Powell or somebody else, won’t make a difference by itself. But if enough drips of water from other people and other studies consistently show that immigration can help our labor shortages and improve our economy, then I hope that will move the needle so that Congress will seriously take up immigration reform in 2023.”

Mr. Yale-Loehr said the issues that already have been “percolating in Congress” would be on his immediate wish list for 2023. “That would include helping the Dreamers [beneficiaries of Deferred Action for Childhood Arrivals (DACA)] to be able to achieve some kind of permanent status and reforming our border-security measures so that we can admit those people who really do need or will qualify for asylum, but otherwise deport people after a hearing if they don’t qualify under immigration laws. Third, I think we do need modernization in our agriculture industry, and there is a bill proposed by Sen. Bennet [D-CO] that would do that, and fourth, I think that Congress should pass the Afghan Adjustment Act to allow people who came from Afghanistan a permanent path to citizenship.” He noted that the Biden administration can act on its own on some immigration issues.

He also suggested that grassroots efforts eventually might end up spurring U.S. lawmakers to do more. “A lot of change happens from the ground up, rather than the top down—if you think about civil rights legislation in the 60s, the Environmental Protection Act of 1970, the antiwar efforts—it was because people really protested the existing framework that they forced Congress to make changes in those areas. And so too, I think that if more Americans stood up and said, ‘We need immigration reform,’ I think that that would help persuade Congress to actually put pen to paper and make some significant changes.” https://www.marketwatch.com/story/we-need-more-people-says-feds-powell-but-what-does-that-mean-for-immigration-reform-11671724198

Mr. Yale-Loehr was quoted by Law360 in “Top Immigration Cases of 2022: Year in Review.” Among other cases, the article notes that in June 2022, the Supreme Court placed new limits on the federal judiciary’s power to control the executive branch’s immigration policy when it erased an order requiring immigration courts to hold bond hearings for immigrants who were detained for more than six months. In Garland v. Aleman Gonzalez, the article notes, the justices ruled 6 to 3 that INA § 1252(f)(1) bars every federal court, except the high court, from interfering on a class-wide basis with how the executive branch carries out certain immigration enforcement functions. That holding will make it harder for legal challengers to get more than individual relief, even if the policy they are contesting applies broadly, said Mr. Yale-Loehr. “As Justice Sotomayor wrote in her dissent, the decision ‘risks depriving many vulnerable noncitizens of any meaningful opportunity to protect their rights.’ ” https://www.law360.com/articles/1553280/top-immigration-cases-of-2022-year-in-review (registration required)

Mr. Yale-Loehr was quoted in several media outlets on Title 42 issues:

• “Title 42 to Remain in Place for Now as Chief Justice John Roberts Temporarily Freezes Order Meant to End It,” CNN, Dec. 19, 2022. Mr. Yale-Loehr said, “This is a longstanding problem. More people are fleeing persecution, gang violence, failed states and climate change than ever before. Even without Title 42, we would have more people than ever before trying to enter the United States. Title 42 is not an effective way to manage our borders. Instead, we need to both enact immigration reform in the United States and work with other countries so that people don’t feel so desperate to leave in the first place.”
• “Chief Justice Roberts Pauses Lifting of Title 42, Keeping Migrant Policy in Place for Now,” USA Today, Dec. 19, 2022. Mr. Yale-Loehr said, “People worry that terminating Title 42…will mean more people will try to enter the United States from Mexico. But those pressures existed before the Trump administration implemented Title 42. Climate change, poverty, gang violence, and failed states all contribute to people’s desperation to move.”

Mr. Yale-Loehr and Jacob Hamburger co-authored an op-ed, “On Immigration, Do Feds or States Rule?,” published by New York Daily News. https://www.nydailynews.com/opinion/ny-oped-immigration-federalism-20221219-haoe6hs6ajedbo2joe5nz6itxq-story.html

Mr. Yale-Loehr co-led a research project reported in “Multi-Stakeholder Perspectives on Digital Tools for U.S. Asylum Applicants Seeking Healthcare and Legal Information,” published by the Association for Computing Machinery’s Digital Library. Through semi-structured interviews with 24 asylum applicants currently in the United States and 13 healthcare and legal professionals working with asylum applicants and other immigrants, the study identified four key challenges and barriers to using currently available digital tools: information uncertainty, accessibility, emotional barriers, and contextual sensitivity. The findings highlight the importance of considering multiple stakeholders’ perspectives when designing tools for immigrants. The report provides targeted design recommendations to create digital tools for asylum seekers and the stakeholders who support them. Research funding came from the Cornell Migrations initiative supported by The Andrew W. Mellon Foundation; Cornell’s Office of Academic Integration; and the Cornell Immigration Law and Policy Program, which is partly funded by the Charles Koch Foundation. The report is at https://dl.acm.org/doi/10.1145/3555642

A related article, “Better Digital Tools Could Help Immigrants Access Benefits,” published by the Cornell Chronicle, notes that fear of tracking hinders immigrants in accessing online resources and benefits. The article discusses the study’s recommendation to mitigate those concerns: websites, apps, social media, and other digital tools disseminating information to immigrants should collect the minimum personal data necessary and clearly state privacy policies. The research that Mr. Yale-Loehr co-led resulted in development of a website to help immigrants understand their eligibility for certain public benefits, Rights 4 Health. The article is at https://news.cornell.edu/stories/2022/12/better-digital-tools-could-help-immigrants-access-benefits

Mr. Yale-Loehr was quoted by the New York Times in “Government Appeals Border Ruling, But Says It’s Ready to End Expulsions.” The article discusses the Biden administration’s appeal of a court order directing it to repeal a pandemic-era policy known as Title 42 that has allowed the rapid expulsion of migrants at the U.S. border with Mexico, even though an administration official said the government still planned to end the expulsion policy soon. The article notes that some legal scholars said the appeal suggested that the government was not abandoning Title 42 altogether or conceding that the policy was illegal. Mr. Yale-Loehr said, “They want to be able to use Title 42 if they choose to do so in the future.” https://www.nytimes.com/2022/12/07/us/biden-title-42-appeal.html (subscription required)

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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. Employer Reminder: E-Verify Operations Resume; Preferred Dates Released for Employee Visits to SSA to Resolve Mismatches – E-Verify reminded employers that operations have resumed, and released preferred dates for employees to visit the Social Security Administration to resolve their Tentative Nonconfirmations (mismatches of Social Security numbers).

2. CBP Is Discontinuing Passport Entry Stamps, Transitioning to Online I-94 Arrival/Departure Records Only; Mistakes Are Common – U.S. Customs and Border Protection (CBP) has automated the I-94 process for most nonimmigrants arriving by air and sea. This means that in many cases, foreign nationals no longer receive an entry stamp in their passports at ports of entry documenting their arrival. Earlier this year, CBP also announced that it is issuing electronic I-94s at land ports of entry.

3. DHS Begins Limited Implementation of DACA Under Final Rule – U.S. Citizenship and Immigration Services (USCIS) will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. USCIS will continue to accept but cannot process initial DACA requests. Current grants of DACA and related employment authorization documents remain valid.

4. I-140 Applicants – A Department of Education decision to no longer recognize the Accrediting Council for Independent Colleges and Schools as an accrediting agency immediately affects two immigration-related student programs.

5. Worldwide Visa Operations Recovering Faster Than Expected, State Dept. Announces – The agency expects to reach pre-pandemic processing levels this year.

6. USCIS Extends Certain COVID-19-Related Flexibilities Through January 23, 2023 – Under the flexibilities, U.S. Citizenship and Immigration Services considers a response received within 60 calendar days after the due date set forth in certain requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023.

7. OFLC Releases Round 2 FAQ on Job Order Filing and Processing Under H-2A Final Rule – Among other things, the FAQ notes that unless a specific exemption applies, employers and their authorized attorneys or agents must submit H-2A job orders using the electronic method designated by the Office of Foreign Labor Certification Administrator.

8. Duplicate Copies of Form I-129 No Longer Required – U.S. Citizenship and Immigration Services no longer requires petitioners to submit duplicate copies of the Form I-129 Petition for a Nonimmigrant Worker, or of the supporting documentation, unless the agency specifically asks for it.

9. USCIS Clarifies CW-1 Policy on Temporary Departure Requirement – U.S. Citizenship and Immigration Services clarified its policy on implementing the requirement that Commonwealth of the Northern Mariana Islands (CNMI) workers leave the United States for at least 30 days after two renewals of their CNMI-Only Transitional Worker (CW-1) visa classification.

10. EOIR Announces 32 New Immigration Judges – The Executive Office for Immigration Review announced the appointment of 32 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.

11. USCIS Implements New Process for Venezuelans – U.S. Citizenship and Immigration Services began implementing a new process for Venezuelans on October 18, 2022. As announced previously, the fully online process will allow individuals to be considered on a case-by-case for “advance authorization to travel to the United States and seek a temporary period of parole for up to two years” if they meet certain conditions.

12. DHS Designates Ethiopia for Temporary Protected Status – The 18-month designation will be effective on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and work authorization.

13. USCIS Issues Filing Guidance for CW-1 Petitions Seeking to Extend Status – U.S. Citizenship and Immigration Services will consider certain CW-1 petitions seeking an extension of status for temporary workers present in the Commonwealth of the Northern Mariana Islands to be filed on time, even if USCIS receives them after the worker’s current period of CW-1 petition validity expires.

14. Fortune 500 Companies Call for Protection of DACA Program, ‘Dreamers’ – Several large U.S. corporations have launched an advertising campaign to protect the Deferred Action for Childhood Arrivals program, whose more than 600,000 beneficiaries are called “Dreamers.”

15. USCIS Updates Guidance on Medical Exceptions to Naturalization Requirements for Applicants With Disabilities – The revisions to Form N-648 eliminate questions and language that no longer have practical utility or were redundant.

16. Coalition Urges the University of California to Hire Undocumented Students – A coalition of students and legal scholars has proposed that the 10 University of California campuses hire undocumented students. They are challenging federal immigration laws that prohibit the hiring of undocumented persons by U.S. employers, based on a new legal interpretation by constitutional and immigration scholars that argues that these laws do not apply to states.

17. Employers Should Continue to Use Current I-9 Form Even After Oct. 31 Expiration, DHS Says; ICE Announces I-9 Flexibility Extension – The Department of Homeland Security will publish a Federal Register notice to announce the new I-9 form when it becomes available. U.S. Immigration and Customs Enforcement announced an extension until July 31, 2023, of the Form I-9 flexibilities first announced in March 2020.

18. DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2023; Worker Protection Taskforce Announced – The H-2B supplemental includes an allocation of 20,000 visas for workers from Haiti, Honduras, Guatemala, and El Salvador. The remaining 44,716 supplemental visas will be available for returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

19. DHS Announces New ‘Migration Enforcement Process’ for Venezuelans – Among other things, the new process will bring up to 24,000 qualifying Venezuelans into the United States and provide them with work authorization. Those who cross the border between ports of entry without authorization will be ineligible.

20. DOL Publishes Final Rule Revising Temporary Labor Certification Regulations – After consideration of comments received in response to the proposed rule, the Department separated the proposals into two rulemaking activities. This first rule encompasses all of the proposed rule except the adverse effect wage rate (AEWR) methodology. The second will address changes to the AEWR methodology.

21. USCIS Issues Policy Guidance on EB-5 Reform and Integrity Act of 2022 – U.S. Citizenship and Immigration Services issued policy guidance related to an EB-5 rule that a federal court vacated on June 22, 2021.

22. CBP Publishes Final Rule on Media Representatives From China Seeking to Enter the United States – The rule removes a maximum 90-day period of stay for certain representatives of foreign information media from China and allows the Secretary of Homeland Security to determine the maximum period of stay, up to one year.

23. CBP Imposes Arrival Restrictions on Flights Carrying Uganda Travelers – Until further notice, U.S. Customs and Border Protection has directed all flights to the United States carrying persons who have recently traveled from, or were otherwise present within, Uganda to arrive at one of five U.S. airports implementing enhanced public health measures.

24. Fifth Circuit Rules DACA is Illegal, But Remands to Lower Court to Consider Final Rule – The current 594,000 Deferred Action for Childhood Arrival (DACA) recipients can maintain status while the lower court considers the effect of a DACA final rule issued by the Biden administration. New applications continue to be blocked.

25. Optional Practical Training, STEM Extension Upheld by Court – The court held that authorizing foreign students to engage in limited periods of employment for practical training as their schools recommend according to the terms set out in the rule is a valid exercise of the Department of Homeland Security’s authority.

26. Labor Dept. Announces H-2A Final Rule – The Department of Labor announced the impending publication of a final rule to amend H-2A temporary labor certification regulations to strengthen agricultural worker protections and to update the H-2A application and temporary labor certification and prevailing wage determination processes.

27. EOIR Extends Automatic Acceptance of Documents Filed Late With Certain Florida Immigration Courts Due to Hurricane Ian – The Executive Office for Immigration Review will extend the automatic acceptance of documents filed late with the Miami, Krome, and Orlando Immigration Courts through November 25, 2022. The period applies to cases with filing deadlines starting September 28, 2022.

28. November Visa Bulletin Includes Information on Extension of Religious Workers Category, Visa Availability in Employment Second Category – The Department of State’s Visa Bulletin for November 2022 includes information on the extension of the religious workers category until December 15, 2022, and visa availability in the employment second category.

29. President Releasees Refugee Admissions Numbers for FY 2023 – President Biden issued a determination that up to 125,000 refugee admissions for fiscal year 2023 “is justified by humanitarian concerns or is otherwise in the national interest.” The announcement includes regional allocations.

30. ABIL Global: Switzerland – Nationals of countries with which Switzerland holds permanent residence agreements now must also show local language proficiency when applying for permanent residence.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – November 2022

1. Employer Reminder: E-Verify Operations Resume; Preferred Dates Released for Employee Visits to SSA to Resolve Mismatches

E-Verify reminded employers that operations have resumed, and released preferred dates for employees to visit the Social Security Administration (SSA) to resolve their Tentative Nonconfirmations (TNCs) (mismatches of Social Security numbers). E-Verify said that the timeframes are recommended, not required, but that all employees must visit SSA to resolve their TNCs by September 29, 2023, or their cases will automatically get Final Nonconfirmations.

The SSA provided the following information:

Details:

• E-Verify notice. https://www.e-verify.gov/social-security-administration-resumes-e-verify-operations

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2. CBP Is Discontinuing Passport Entry Stamps, Transitioning to Online I-94 Arrival/Departure Records Only; Mistakes Are Common

U.S. Customs and Border Protection (CBP) has automated the I-94 process for most nonimmigrants arriving by air and sea. According to reports, this means that in many cases, foreign nationals no longer receive an entry stamp in their passports at ports of entry documenting their arrival.

Employers should advise their foreign national employees to check the accuracy of their I-94 Arrival/Departure Records on the U.S. Customs and Border Protection (CBP) website soon after they enter the United States, as errors are common. The site requires the name, date of birth, and passport number. The I-94, not the passport, visa, or prior approval notice, documents a nonimmigrant’s status, approved length of stay in the United States, and departure information.

In case of an I-94 error, there is an online CBP system for requesting corrections, but some practitioners report months-long delays and agency inaction. They recommend contacting the appropriate CBP office directly or sending a Deferred Inspections email instead to get I-94 records corrected.

Earlier this year, CBP also announced that it is issuing electronic I-94s at land ports of entry. For land arrivals, CBP is no longer issuing paper I-94s to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request if feasible. Nonimmigrants can access Form I-94s online at the CBP website or via mobile application.

Details:

• Official Site for Travelers Visiting the United States: Apply for or Retrieve Form I-94, Request Travel History and Check Travel Compliance, CBP. https://i94.cbp.dhs.gov/I94/#/home
• Streamlining I-94 Issuance at the Land Border, CBP notice, 87 Fed. Reg. 15446 (Mar. 18, 2022). https://www.govinfo.gov/content/pkg/FR-2022-03-18/pdf/2022-05758.pdf

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3. DHS Begins Limited Implementation of DACA Under Final Rule

The Department of Homeland Security’s (DHS) final rule on Deferred Action for Childhood Arrivals (DACA) took effect on October 31, 2022. Under the final rule, U.S. Citizenship and Immigration Services (USCIS) will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to ongoing litigation, USCIS will continue to accept but cannot process initial DACA requests. Current grants of DACA and related employment authorization documents remain valid, USCIS said.

USCIS said the final rule’s implementation “means that DACA is now based on a formal regulation, thereby preserving and fortifying the program while the program remains the subject of litigation in court. Previously, DACA was based on a policy memorandum that then-DHS Secretary Janet Napolitano issued on August 15, 2012.”

Since DACA’s inception in 2012, USCIS noted, the program has allowed more than 800,000 young people “to remain with their families in the only country many of them have ever known and continue to contribute to their communities in the United States.”

Details:

• USCIS news release. https://www.uscis.gov/newsroom/news-releases/dhs-begins-limited-implementation-of-daca-under-final-rule
• USCIS DACA webpage. https://www.uscis.gov/DACA
• DACA final rule, 87 Fed. Reg. 53152 (Aug. 30, 2022). https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18401.pdf

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4. I-140 Applicants

A Department of Education (DOE) decision to no longer recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency immediately affects two immigration-related student programs, U.S. Citizenship and Immigration Services (USCIS) announced:

• English language study programs; and
• F-1 students applying for a 24-month science, technology, engineering, and mathematics (STEM) optional practical training (OPT) extension.

USCIS said the Student and Exchange Visitor Program (SEVP) will provide guidance to affected students in notification letters if their schools’ accreditation is revoked. However, students enrolled at an ACICS-accredited school should contact their Designated School Officials immediately “to better understand if and how the loss of recognized accreditation will affect their status and/or immigration benefits applications,” USCIS said.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school chooses to voluntarily withdraw its accreditation or is withdrawn by SEVP, USCIS explained. Students whose ACICS-accredited school can provide evidence of a DOE-recognized accrediting agency or evidence in lieu of accreditation within the allotted timeframe may remain at the school to complete their programs of study.

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5. Worldwide Visa Operations Recovering Faster Than Expected, State Dept. Announces

On October 21, 2022, the Department of State (DOS) announced that worldwide visa operations are recovering faster than expected from COVID-19-pandemic-related effects. As a result, the agency has doubled hiring of U.S. Foreign Service personnel and said it expects to reach pre-pandemic processing levels this year.

The COVID-19 pandemic “forced profound reductions in DOS’s visa processing capacity” in two main ways, the agency explained. First, restrictions on travel to the United States, and local restrictions on public places like overseas consular waiting rooms, curbed the ability to see visa applicants. Second, as revenue from the application fees that fund visa processing operations was cut nearly in half, more than 300 overseas consular officer positions went unfilled in 2020 and 2021, further reducing the number of visa applications that could be processed.

DOS said that 96 percent of U.S. embassies and consulates are again interviewing visa applicants. Nonimmigrant visa applications are being processed at 94 percent of pre-pandemic monthly averages, and immigrant visa application processing is at 130 percent. In the past 12 months (through September 30, 2022), DOS processed 8 million nonimmigrant visas, well above its best-case projections. DOS also noted that the agency set records for student and academic exchange visitor visas. Consular sections worldwide adjudicated more student visas in July 2022 than in any other month since 2016, with nearly 180,000 F, M, and academic J visas processed, DOS said. In addition, the agency issued 54,334 diversity visas (DVs) during the DV-2022 program year—the highest number of DVs issued in 25 years, and all available DV numbers were exhausted when that total was combined with the domestic adjustments of status approved by USCIS under the DV program.

Details:

• DOS update, Oct. 21, 2022.

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6. USCIS Extends Certain COVID-19-Related Flexibilities Through January 23, 2023

U.S. Citizenship and Immigration Services (USCIS) announced that it is extending certain COVID-19-related flexibilities through January 24, 2023, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023:

• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Notices of Intent to Deny, Revoke, Rescind, Terminate (regional centers), or Withdraw Temporary Protected Status
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

• The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
• USCIS made that decision between November 1, 2021, and January 24, 2023.

Reproduced-signature flexibility announced in March 2020 became permanent policy on July 25, 2022.

Details:

• USCIS alert, Oct. 24, 2022. https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-0

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7. OFLC Releases Round 2 FAQ on Job Order Filing and Processing Under H-2A Final Rule

On October 25, 2022, the Department of Labor’s Office of Foreign Labor Certification (OFLC) issued a set of frequently asked questions (FAQs), “Round 2: Job Order Filing and Processing,” associated with the publication of the final rule, Temporary Agricultural Employment of H-2A Nonimmigrants in the United States.

The FAQ notes:

• Employers and their authorized attorneys or agents must submit H-2A job orders (H-2A Agricultural Clearance Order, Form ETA-790/790A) using the electronic method designated by the OFLC Administrator, unless a specific exemption applies. Currently, the Foreign Labor Application Gateway (FLAG) System is the OFLC Administrator’s designated electronic filing method, the FAQ states. Only employers that the OFLC Administrator authorizes to file by mail due to lack of internet access, or authorizes to file using a reasonable accommodation due to a disability, would be permitted to file using those other means.
• How-to content, including videos posted on YouTube, is available in the “Support” area of the FLAG homepage to guide users through such system features as creating an account, logging in, and creating and joining a network. In joint-employer situations, the FAQ states, only one job order should be submitted for the job opportunity, with each employer identified in the job order, as explained in the Form ETA-790A General Instructions.
• Employers and their authorized attorneys or agents must submit completed job orders (i.e., Forms ETA-790 and ETA-790A) to the National Processing Center no more than 75 calendar days and no fewer than 60 calendar days before the employer’s first date of need, except in emergency situations that satisfy certain criteria.

The FAQ also includes details on signatures, timeframes, housing inspections, wage rates, collective bargaining, State Workforce Agency processing, and withdrawal requests.

Details:

• OFLC Round 2 FAQ.
• H-2A Final Rule, Wage & Hour Division, 87 Fed. Reg. 61660 (Oct. 12, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf

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8. Duplicate Copies of Form I-129 No Longer Required

U.S. Citizenship and Immigration Services (USCIS) no longer requires petitioners to submit duplicate copies of Form I-129, Petition for a Nonimmigrant Worker, or of the supporting documentation, unless the agency specifically asks for it.

“Due to enhanced electronic scanning capabilities and data-sharing with the U.S. Department of State, duplicate copies are no longer needed to avoid delays in consular processing,” USCIS said.

Details:

• USCIS alert. https://www.uscis.gov/i-129

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9. USCIS Clarifies CW-1 Policy on Temporary Departure Requirement

On October 27, 2022, U.S. Citizenship and Immigration Services (USCIS) clarified its implementation of the requirement that Commonwealth of the Northern Mariana Islands (CNMI) workers leave the United States for at least 30 days after two renewals of their CNMI-Only Transitional Worker (CW-1) visa classification.

Effective immediately, USCIS said, the only CW-1 petitions that USCIS will classify as consecutive petitions for purposes of the temporary departure requirement are approved CW-1 petitions that have a starting validity date on or after June 18, 2020. Any extension of CW-1 status granted on or after June 18, 2020, will be considered a consecutive petition if the extension has a starting validity date on or after that date (and not backdated before that date).

USCIS provided an example. If USCIS approved a petition on July 1, 2020, but the petition was backdated to grant status from October 1, 2019, the agency would consider that petition approved as of the earlier validity date of October 1, 2019. Therefore, this petition would not apply toward the temporary departure requirement.

Details:

• USCIS alert. https://www.uscis.gov/newsroom/alerts/uscis-will-only-consider-cw-1-petitions-approved-and-with-starting-validity-on-or-after-june-18-2020
• USCIS Policy Update on CW-1 Departure Requirement. https://www.uscis.gov/news/alerts/uscis-policy-update-on-cw-1-departure-requirement

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10. EOIR Announces 32 New Immigration Judges

On October 26, 2022, the Department of Justice’s Executive Office for Immigration Review announced the appointment of 32 immigration judges (IJs) to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.

Individuals interested in applying for an IJ position can sign up for job alerts.

Details:

• USCIS release, Oct. 19, 2022. https://www.uscis.gov/newsroom/news-releases/uscis-form-and-policy-updates-remove-barriers-to-naturalization-for-applicants-with-disabilities

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11. USCIS Implements New Process for Venezuelans

U.S. Citizenship and Immigration Services (USCIS) began implementing a new process for Venezuelans on October 18, 2022. As announced previously, the new process will provide a “lawful and streamlined” way for nationals of Venezuela who are “outside the United States and lacking U.S. entry documents to come to the United States.”

The fully online process will allow individuals to be considered on a case-by-case for “advance authorization to travel to the United States and seek a temporary period of parole for up to two years” if they have a supporter in the United States who will provide financial and other support; undergo and clear security vetting; meet other eligibility criteria; and warrant a favorable exercise of discretion. Those who attempt to enter the United States between ports of entry will be subject to return to Mexico and will be subsequently ineligible for this process, USCIS said.

Details:

• USCIS alert, Oct. 18, 2022. https://www.uscis.gov/newsroom/alerts/uscis-implements-new-process-for-venezuelans

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12. DHS Designates Ethiopia for Temporary Protected Status

The Department of Homeland Security announced the designation of Ethiopia for temporary protected status (TPS) for 18 months. Only individuals who were already continuously residing in the United States as of October 20, 2022, will be eligible for TPS.

This is the first TPS designation for Ethiopia. The 18-month designation will be effective on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and work authorization. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Details:

• DHS notice, Oct. 21, 2022. https://www.dhs.gov/news/2022/10/21/dhs-designates-ethiopia-temporary-protected-status-18-months

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13. USCIS Issues Filing Guidance for CW-1 Petitions Seeking to Extend Status

U.S. Citizenship and Immigration Services (USCIS) announced on October 18, 2022, that it will consider certain CW-1 petitions seeking an extension of status for temporary workers present in the Commonwealth of the Northern Mariana Islands (CNMI) to be filed on time, even if USCIS receives them after the worker’s current period of CW-1 petition validity expires.

USCIS said it is providing this limited accommodation to address current temporary labor certification (TLC) processing delays at the Department of Labor (DOL). USCIS is exercising its discretionary authority to excuse late filings of CW-1 petitions (petitions USCIS receives after the current CW-1 status expires) by employers in the CNMI, only if:

• The TLC application was filed with DOL at least 60 days before the requested start date;
• The petition is otherwise properly filed and includes an approved TLC; and
• USCIS receives the petition no later than 30 days after the date of TLC approval, or by November 15, 2022, whichever is earlier.

If an employer files an extension petition meeting these requirements, the CW-1 worker may continue employment with the same employer for up to 240 days beginning on the expiration of the authorized period of stay, pending adjudication of the petition (or, in the case of a non-frivolous petition for extension of stay with change of employer, until USCIS adjudicates the petition).

Details:

• USCIS alert, Oct. 18, 2022. https://www.uscis.gov/newsroom/alerts/filing-guidance-for-cw-1-petitions-seeking-to-extend-status

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14. Fortune 500 Companies Call for Protection of DACA Program, ‘Dreamers’

Several large U.S. corporations have launched an advertising campaign to protect the Deferred Action for Childhood Arrivals (DACA) program, whose more than 600,000 beneficiaries are called “Dreamers.” They argue in an open letter that they “face another crisis if Congress fails to act on an issue that has strong bipartisan support from the American people.” The letter states:

The recent ruling by the U.S. 5th Circuit Court of Appeals declaring DACA illegal puts all of these individuals, their families, and their employers at risk. Each DACA recipient will soon face the threat of losing their work authorization and protection from deportation, while our businesses face the threat of losing critical employees.

The worker shortage will get worse for the United States if hundreds of thousands of critical workers are stripped of their legal ability to support themselves and their families. That is the situation we currently face if this ruling becomes final, and it is the reason for our request today.

Given that DACA applications and renewals were granted on a rolling basis, the end to this program means that an estimated 22,000 jobs would be lost every month for two years. That is roughly 1,000 job losses per business day at a time when the U.S. economy already faces significant workforce shortages.

When the last DACA recipient’s work permit expires, the U.S. will have lost more than 500,000 jobs, and the U.S. economy will lose as much as $11.7 billion annually—or roughly $1 billion monthly—in wages from previously employed DACA recipients. (To put this into perspective, in Texas alone, 400 healthcare workers and 300 teachers will be forced out of their jobs each month.)

Signers of the letter include, among others, Amazon, Apple, Google, Meta, MGM Resorts, Microsoft, Starbucks, and Target. The ads are running in various major newspapers, including the Wall Street Journal, the Dallas Morning News, and the Charlotte Observer.

The ad campaign follows a decision by the U.S. Court of Appeals for the Fifth Circuit that ruled the program illegal but allowed current recipients to maintain status during a lower court’s review. The lower court is likely to rule against DACA, according to observers. Further action in Congress is uncertain.

Details:

• Letter to Congress, Coalition for the American Dream, Oct. 20, 2022. https://www.coalitionfortheamericandream.us/daca-fifth-circuit-response/
• “With DACA on Life Support, Microsoft, Apple and Other Big U.S. Firms Launch Ad Campaign to Protect ‘Dreamers’,” NBC News, Oct. 20, 2022. https://nbcnews.to/3SnDZtg
• “Federal Judge Temporarily Allows DACA Protections to Continue,” NBC News, Oct. 14, 2022. https://www.nbcnews.com/politics/immigration/federal-judge-temporarily-allows-daca-protections-continue-rcna52339

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15. USCIS Updates Guidance on Medical Exceptions to Naturalization Requirements for Applicants With Disabilities

U.S. Citizenship and Immigration Services (USCIS) announced on October 19, 2022, that it has updated its policy guidance to clarify and conform with the revision of Form N-648, Medical Certification for Disability Exceptions.

Naturalization applicants with a physical or developmental disability or mental impairment that precludes them from fulfilling the English and civics testing requirements for naturalization may file Form N-648 to request an exception to those requirements. The form must be completed and certified by a medical professional.

Based on public comments, USCIS said, the revisions to Form N-648 eliminate questions and language that no longer have practical utility or were redundant. Most notable changes include elimination of questions about how each relevant disability affects specific functions of the applicant’s daily life, including the ability to work or go to school. The revisions also eliminate dates of diagnosis, description of severity of each disability, and whether the certifying medical professional has a pre-existing relationship with the applicant. Further, USCIS said, the revisions allow the medical professional the option to indicate an applicant’s need for an oath waiver, thereby eliminating the need for separate medical documentation. The updated policy also provides guidance for telehealth medical examinations and allows USCIS to accept an applicant’s Form N-648 after the Form N-400, Application for Naturalization, is filed.

Details:

• USCIS release, Oct. 19, 2022

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16. Coalition Urges the University of California to Hire Undocumented Students

A coalition of students and legal scholars has proposed that the 10 University of California campuses hire undocumented students. They are challenging federal immigration laws that prohibit the hiring of undocumented persons by U.S. employers, based on a new legal interpretation by constitutional and immigration scholars that argues that these laws do not apply to states. The University of California system is the third-largest employer in the state of California, so any such decision would have significant impact.

A sign-on letter that sets out the legal aspects of the proposal says:

[T]he core argument is as follows. The federal prohibition on hiring undocumented persons as a general matter is codified in the 1986 Immigration Reform and Control Act, or IRCA, in particular 8 U.S.C. § 1324a. Under governing U.S. Supreme Court precedents, if a federal law does not mention the states explicitly, that federal law does not bind state government entities. Nothing in 8 U.S.C. § 1324a expressly binds or even mentions state government entities.

According to observers, implementation would be likely to lead to lawsuits, fines, and political pushback, especially with the Deferred Action for Childhood Arrivals program purportedly on the chopping block.

Details:

• “Students, Legal Scholars Push California Universities to Hire Undocumented Students,” New York Times, Oct. 19, 2022. https://www.nytimes.com/2022/10/19/us/daca-dreamers-university-of-california.html
• “Undocumented UC Student Leaders, Professors From UCLA CILP & Labor Center Launch Groundbreaking Campaign for Equal Access to Job Opportunities,” Oct. 20, 2022. https://www.labor.ucla.edu/press-release/undocumented-uc-student-organizers-professors-from-ucla-cilp-labor-center-launch-groundbreaking-campaign-for-equal-access-to-job-opportunities/
• “Opportunity for All” Campaign Sign-On Letter, UCLA Center for Immigration Law and Policy, Sept, 7, 2022. https://docs.google.com/document/d/1TDBqeo4MUmHk2mxlwCd0tYvWYLV1lxVX4m-jO4CV7-E/edit
• Letter to Michael V. Drake, President of the University of California, Oct. 2022. https://docs.google.com/document/d/1VoKC7DPCr-PQ414Z-7r8CudhYFirey4DlMnRoRK8etk/edit

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17. Employers Should Continue to Use Current I-9 Form Even After Oct. 31 Expiration, DHS Says; ICE Announces I-9 Flexibility Extension

The Department of Homeland Security (DHS) alerted employers on October 11, 2022, that they should continue using the current Form I-9, Employment Eligibility Verification, even after its October 31, 2022, expiration and “until further notice.” DHS said it will publish a Federal Register notice to announce the new I-9 form when it becomes available.

Also, U.S. Immigration and Customs Enforcement announced an extension until July 31, 2023, of the Form I-9 flexibilities first announced in March 2020. The flexibilities include DHS’s deferral of physical presence requirements applicable to employers and workplaces operating remotely.

Details:

• E-Verify alert, Oct. 11, 2022
• “ICE Announces Extension to I-9 Compliance Flexibility,” Oct. 11, 2022. https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3

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18. DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2023; Worker Protection Taskforce Announced

The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), plans to issue a regulation to make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2023, on top of the 66,000 H-2B visas that are normally available each fiscal year.

The H-2B supplemental includes an allocation of 20,000 visas for workers from Haiti, Honduras, Guatemala, and El Salvador. The remaining 44,716 supplemental visas will be available for returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. DHS said the regulation will allocate these remaining supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal workers, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season.

DHS and DOL also announced the creation of a new White House-convened Worker Protection Taskforce. DHS explained that the Taskforce will focus on: (1) threats to H-2B program integrity; (2) H-2B workers’ fundamental vulnerabilities, including their limited ability to leave abusive employment without jeopardizing their immigration status; and (3) the impermissible use of the program to avoid hiring U.S. workers. DHS and DOL will assess a variety of policy options and will provide an opportunity for relevant stakeholders to offer input. In the coming months, DHS also plans to issue a notice of proposed rulemaking relating to the H-2 programs. The proposed rule will incorporate policies that strengthen protections for H-2 workers, the agency said.

Details:

• DHS release, Oct. 12, 2022. https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023

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19. DHS Announces New ‘Migration Enforcement Process’ for Venezuelans

On October 12, 2022, the Department of Homeland Security (DHS) announced joint actions with Mexico to reduce the number of people arriving at the Southwest border and “create a more orderly and safe process for people fleeing the humanitarian and economic crisis in Venezuela.” The actions include a new process to bring up to 24,000 qualifying Venezuelans into the United States and provide them with work authorization. Those who cross the border between ports of entry without authorization will be ineligible. DHS also said it would not implement this process “without Mexico keeping in place its independent but parallel effort to accept the return of Venezuelan nationals who bypass this process and attempt to enter irregularly.”

To be eligible, Venezuelans must:

• Have a supporter in the United States who will provide financial and other support;
• Pass biometric and biographic national security and public safety screening and vetting; and
• Complete vaccinations and other public health requirements.

Venezuelans are ineligible if they:

• Have been ordered removed from the United States in the previous five years;
• Have crossed without authorization between ports of entry after October 12, 2022;
• Have irregularly entered Mexico or Panama after the date of the announcement, or are a permanent resident or dual national of any country other than Venezuela, or currently hold refugee status in any country; or
• Have not completed vaccinations and other public health requirements.

DHS said additional information would be made available “in the coming days” on U.S. Citizenship and Immigration Services’ “Process for Venezuelans” page. Some Venezuelans who were already en route to the United States reportedly said the new policy leaves them in limbo and favors those who are well-off or well-connected. Some are on foot and sold everything they had to make the trek. An estimated 180,000 Venezuelans have entered the United States via the border with Mexico so far this year.

Details:

• DHS release, Oct. 12, 2022. https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans
• Process for Venezuelans, USCIS. https://www.uscis.gov/venezuela
• “Venezuelan Migrants in Shock and Limbo After New U.S. Immigration Plan,” CNN, Oct. 15, 2022. https://www.cnn.com/2022/10/15/americas/venezuelan-migrants-title-42-expansion-intl/index.html

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20. DOL Publishes Final Rule Revising Temporary Labor Certification Regulations

The Department of Labor (DOL) published a final rule on October 12, 2022, that revises its regulations governing the certification of employment of nonimmigrant workers in temporary agricultural employment and the enforcement of obligations applicable to employers of H-2A workers and similarly employed workers in the United States.

After consideration of comments received in response to the proposed rule, the Department separated the proposals into two rules. This first rule encompasses almost all of the proposed rule except the adverse effect wage rate (AEWR) methodology. The second will address changes to the AEWR methodology.

The final rule addresses minimum standards and conditions of employment that employers must offer to workers; expands DOL’s authority to use enforcement tools, such as program debarment for substantial violations of program requirements; modernizes the process by which the Department receives and processes employers’ job orders and applications for temporary agricultural labor certifications, including the recruitment of U.S. workers; and revises the standards and procedures for determining the prevailing wage rate.

Details:

• Final Rule, Dept. of Labor, 87 Fed. Reg. 61660 (Oct. 12, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf
• Office of Foreign Labor Certification (OFLC) notice, Oct. 12, 2022. https://www.dol.gov/agencies/eta/foreign-labor
• OFLC Round 1 FAQs, Oct. 12, 2022, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2022%20H-2A%20FR_FAQs%20Round%201_Implementation.pdf

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21. USCIS Issues Policy Guidance on EB-5 Reform and Integrity Act of 2022

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance related to an EB-5 immigrant investor rule that a federal court vacated on June 22, 2021. Highlights include:

• Removing the vacated provisions of the EB-5 rule;
• Adding that an applicant may file Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with or subsequent to a Form I-526, Immigrant Petition by Standalone Investor, if an immigrant visa is immediately available;
• Revising the investment amounts and targeted employment area designation process; and
• Updating the name of Form I-526 throughout volumes 7 and 8 of the USCIS Policy Manual from “Immigrant Petition by Alien Entrepreneur” to “Immigrant Petition by Standalone Investor” and adding references to Form I-526E, Immigrant Petition by a Regional Center Investor.

Details:

USCIS release, Oct. 11, 2022. https://www.uscis.gov/newsroom/alerts/uscis-issues-policy-guidance-on-the-eb-5-reform-and-integrity-act-of-2022-0

EB-5 Q&A: EB-5 Reform and Integrity Act of 2022.

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22. CBP Publishes Final Rule on Media Representatives From China Seeking to Enter the United States

U.S. Customs and Border Protection (CBP) published a final rule on October 13, 2022, that removes a maximum 90-day period of stay for certain representatives of foreign information media from China and allows the Secretary of Homeland Security to determine the maximum period of stay, up to one year.

The final rule applies to foreign nationals who seek to enter the United States in “I” nonimmigrant status as representatives of foreign information media, and who present a passport issued by the People’s Republic of China (PRC), with the exception of Hong Kong Special Administrative Region (SAR) or Macau SAR passport holders.

Details:

• CBP Final Rule, 87 Fed. Reg. 61959 (Oct. 13, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-13/pdf/2022-21898.pdf

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23. CBP Imposes Arrival Restrictions on Flights Carrying Uganda Travelers

Until further notice, U.S. Customs and Border Protection (CBP) has directed all flights to the United States carrying persons who have recently traveled from, or were otherwise present within, Uganda to arrive at one of five U.S. airports implementing enhanced public health measures. The airports include JFK, Newark Liberty, Washington-Dulles, Hartsfield-Jackson Atlanta, and Chicago O’Hare.

CBP considers a person to have recently traveled from Uganda if that person departed from, or was otherwise present within, Uganda within 21 days of the date of the person’s entry or attempted entry into the United States. The announcement excludes crews and flights carrying only cargo (no passengers or non-crew).

Details:

• CBP announcement, 87 Fed. Reg. 61488 (Oct. 12, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-22264.pdf

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24. Fifth Circuit Rules DACA is Illegal, But Remands to Lower Court to Consider Final Rule

The U.S. Court of Appeals for the Fifth Circuit ruled on October 5, 2022, that the Deferred Action for Childhood Arrivals (DACA) program is unlawful but remanded the case to the U.S. District Court for the Southern District of Texas, ruling that the current 594,000 DACA recipients can maintain status while the lower court considers the effect of a DACA final rule issued by the Biden administration in August 2022, effective October 31, 2022. New applications continue to be blocked.

A longer-term solution would require Congress to pass legislation, which is unlikely in the near term. Otherwise, DACA recipients could eventually lose their work authorization.

Details:

• Fifth Circuit decision. https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf
• S. Appeals Court Sends DACA Case Back to Lower Court to Consider New Rule,” Reuters, Oct. 5, 2022. https://www.reuters.com/legal/us-appeals-court-sends-daca-case-back-lower-court-consider-new-rules-2022-10-05/
• “DHS Issues Regulation to Preserve and Fortify DACA,” Dept. of Homeland Security, Aug. 24, 2022. https://www.dhs.gov/news/2022/08/24/dhs-issues-regulation-preserve-and-fortify-daca
• DHS final rule, 87 Fed. Reg. 53152 (Aug. 30, 2022). https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18401.pdf
• Statement from USCIS Director Ur M. Jaddou. https://www.uscis.gov/newsroom/news-releases/statement-from-uscis-director-ur-m-jaddou-on-daca-ruling

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25. Optional Practical Training, STEM Extension Upheld by Court

On October 4, 2022, the U.S. Court of Appeals for the District of Columbia affirmed the judgment of the district court sustaining the Department of Homeland Security’s (DHS) current Optional Practical Training (OPT) rule’s authorization of a limited period of post-coursework OPT, if recommended and overseen by the school and approved by DHS, for qualifying students on F-1 visas. OPT includes an extension for students in science, technology, engineering, or mathematics (STEM) fields of an additional 24 months beyond the OPT period of 12 months.

Among other things, the court held that authorizing foreign students to engage in limited periods of employment for practical training as their schools recommend according to the terms set out in the rule is a valid exercise of DHS’s authority. The court also noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.”

The court noted that more than 100,000 of the roughly 1 million international students who come to the United States complete a period of practical training.

Details:

• Washington Alliance of Technology Workers v. U.S. Dept. of Homeland Security. https://go.bal.com/e/851003/-5028-D-C–Cir–Oct–4-202-pdf/455g2k/346719091?h=17TzdAIkUvrpA8ZRp9G6svCxHnshAA0HZ5nXLVdhelI

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26. Labor Dept. Announces H-2A Final Rule

The Department of Labor announced the publication of a final rule to amend H-2A temporary labor certification regulations to strengthen agricultural worker protections and to update the H-2A application and temporary labor certification as well as prevailing wage determination processes. The final rule was published on October 12, 2022.

The Office of Foreign Labor Certification said it will post additional announcements regarding the official publication and implementation of the 2022 H-2A Final Rule.

Details:

• H-2A final rule, 87 Fed. Reg. 61660 (Oct. 12, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-12/pdf/2022-20506.pdf

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27. EOIR Extends Automatic Acceptance of Documents Filed Late With Certain Florida Immigration Courts Due to Hurricane Ian

Following President Biden’s amended disaster declaration due to the impact of Hurricane Ian, the Executive Office for Immigration Review (EOIR) said in a stakeholder update that it will extend the automatic acceptance of documents filed late with the Miami, Krome, and Orlando Immigration Courts through November 25, 2022. The period now lasts 60 calendar days, and applies to cases with filing deadlines starting September 28, 2022. The Board of Immigration Appeals (BIA) will also exercise its discretionary authority to automatically accept late-filed appeals, motions to reopen or reconsider, or accept late-filed briefs, in cases arising from these immigration courts for the same period.

EOIR said these immigration courts will not send notices or other correspondence to respondents or counsel with addresses in the areas affected by Hurricane Ian until after the 60-day period lapses, and the BIA will not process cases arising from these courts during this period unless the parties ask the BIA to do so.

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28. November Visa Bulletin Includes Information on Extension of Religious Workers Category, Visa Availability in Employment Second Category

The Department of State’s Visa Bulletin for November 2022 includes the following information:

EMPLOYMENT FOURTH PREFERENCE (SR) RELIGIOUS WORKERS CATEGORY EXTENDED

H.R. 6833, enacted on September 30, 2022, extended the Employment Fourth Preference Certain Religious Workers (SR) category until December 16, 2022. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 15, 2022. Visas issued prior to that date will be valid only until December 15, 2022, and all individuals seeking admission in the non-minister special immigrant category must be admitted (repeat admitted) into the United States no later than midnight December 15, 2022.

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

VISA AVAILABILITY IN THE EMPLOYMENT SECOND CATEGORY

Increased demand in the Employment Second category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Details:

• November 2022 Visa Bulletin. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-november-2022.html

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29. President Releasees Refugee Admissions Numbers for FY 2023

President Biden issued a determination that up to 125,000 refugee admissions for fiscal year (FY) 2023 “is justified by humanitarian concerns or is otherwise in the national interest.” Regional allocations include Africa (40,000), East Asia (15,000), Europe and Central Asia (15,000), Latin America/Caribbean (15,000), Near East/South Asia (35,000), and Unallocated Reserve (5,000). The latter will be allocated to regional ceilings as needed. Also, unused admissions allocated to a particular region can be allocated to other regions.

President Biden also announced that for FY 2023, persons from the following countries and areas may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence: Cuba; Eurasia and the Baltics; Iraq; El Salvador, Guatemala, and Honduras; and, in certain circumstances, persons identified by a U.S. embassy in any location.

Details:

• Presidential Determination No. 2022-25, Sept. 27, 2022. https://www.whitehouse.gov/briefing-room/presidential-actions/2022/09/27/memorandum-on-presidential-determination-on-refugee-admissions-for-fiscal-year-2023/

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30. ABIL Global: Switzerland

Nationals of countries with which Switzerland holds permanent residence agreements now must also show local language proficiency when applying for permanent residence.

Language competence is generally considered to be the ability to communicate in a national language in everyday life. The Swiss legislature attaches considerable importance to the minimum linguistic integration of foreigners in Switzerland, considering it to be of strong public interest to ensure the acquisition of a minimum knowledge of one of the three official languages: French, German, and Italian. These are central to the integration of immigrant foreigners and to the cohesion of Swiss society.

Foreign nationals who come from a country with which a permanent residence agreement or a settlement treaty exists are entitled to a permanent residence permit after an uninterrupted residence of five years if the integration criteria are met and there are no grounds for revocation.

Switzerland has permanent residence agreements with Belgium, Germany, Denmark, France, Liechtenstein, Greece, Italy, Netherlands, Austria, Portugal, and Spain.

Foreign nationals must prove that they have oral language skills at least at reference level A2 and written language skills at least at reference level A1 in the local official language spoken at their place of residence in order to obtain permanent residence. Nationals of countries with which permanent residence agreements exist must also provide evidence of language skills in accordance with recent case law of the Federal Supreme Court (ruling BGer 2C_881/2021 of 9 May 2022 E. 4.2. and 4.3).

Previously, nationals from the countries noted above did not need to prove language proficiency to obtain a permanent residence permit in Switzerland. This change has been incorporated into the guidelines that the State Secretariat for Migration publishes for the benefit of executing authorities, such as the cantonal migration offices, as well as the interested public, in its newest iteration as of October 1, 2022 (4 Aufenthalt mit Erwerbstätigkeit (admin.ch), available in the three official national languages).

Test results showing local language proficiency at the required levels should be submitted when applying for permanent residence. For those nationals who speak the relevant local language already by virtue of having grown up in a country where the same language is spoken, documentation showing years spent in the schooling system or studying at a university are an alternative.

The language-skill requirement does not always apply. In case of disability, illness, or other weighty personal circumstances, it may be waived. On a last and lighter note, there is no requirement to learn and speak Swiss-German, a dialect which, to the relief of many, is not an official national language.

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New Publications and Items of Interest

OFLC fall webinars. The Department of Labor’s Office of Foreign Labor Certification announced its fall 2022 webinar schedule to educate the filing community on changes to the H-2A and H-2B programs. See https://www.dol.gov/agencies/eta/foreign-labor (scroll to October 24, 2022).

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

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

E-Verify webinar schedule. E-Verify released its calendar of webinars. https://www.e-verify.gov/calendar-field_date_and_time/month Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Several Foster LLP attorneys were listed in LawDragon’s Leading Corporate Employment Lawyers in America, including Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/), Delisa Bressler, Helene Dang, Avalyn Langemeier, John Meyer, Conna Fanas, Dorothee Mitchell, José Pérez, Jr., and Nestor Rosin.

Cyrus D. Mehta & Partners PLLC published a new blog post authored by Stacy Caplow: “Biden’s Pardons: The First Drops in a Big Bucket of Criminal Reform.” http://blog.cyrusmehta.com/2022/10/bidens-pardons-the-first-drops-in-a-big-bucket-of-criminal-reform.html

Cyrus Mehta (https://www.abil.com/abil-lawyers/cyrus-d-mehta/) authored a new blog post: “Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options.” http://blog.cyrusmehta.com/2022/11/guide-to-terminated-nonciitzen-workers-preserving-nonimmigrant-status-and-pemrnaent-residency-options.html

Mr. Mehta and Jessica Paszko co-authored a new blog post: “USCIS Guidance Enabling STEM Graduates to Obtain O-1 Extraordinary Visas Should Apply Equally to EB-1 Extraordinary Ability Petitions for Green Cards.”

Cyrus Mehta and Kaitlyn Box co-authored several new blog posts: “DOL Fails to Side With H-1B Worker Who Claimed Back Wages Against Employer After Being Terminated”; http://blog.cyrusmehta.com/2022/10/dol-fails-to-side-with-h-1b-worker-who-claimed-back-wages-against-employers-after-being-terminated.html; and “A Tale of Two Cases: Washtech v. DHS and Texas v. USA: To What Extent Can the Executive Branch Allow Noncitizens to Remain and Work in the U.S.”

WR Immigration was ranked National and Regional Tier 1 in the 2023 U.S. News & World Report’s “Best Law Firms.” WR Immigration was ranked Metropolitan Tier 1 in Boston, Los Angeles, and San Diego, and Metropolitan Tier 2 in New York City and San Francisco. https://wolfsdorf.com/wr-immigration-ranked-in-2023-best-law-firms/

Siskind Susser, PC announced its formal collaboration with Fastcase on a new case management system built around the content of the Cookbook co-authored by Ari Sauer and Greg Siskind. In addition to checklists, client questionnaires, and process steps, the product will have document templates, sample government forms, “cheat sheets” to help lawyers avoid submitting cases before every necessary step is taken, and detailed overviews of the law applicable to a particular case type. A limited version of the product is expected to be available in early 2023, with full release anticipated later in the year. https://www.fastcase.com/blog/visalaw-immigration-law-firm-partners-with-fastcase-to-develop-novel-ai-software/

Wolfsdorf Rosenthal LLP has released a webinar video, “I-9 Form Process & Updates Part 2.” WR immigration attorneys Kimberley Best Robidoux and Michelle Harmon review the process used to complete Form I-9 work authorization verification, especially for foreign national employees and in those unusual instances when individuals provide a receipt notice or documents not specifically listed on the list of Acceptable Documents to show identity and/or work authorization. https://wolfsdorf.com/webinar-i-9-form-process-updates-part-2/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Wall Street Journal in “Afghan Evacuees in Limbo While Seeking Permanent Legal Status in the U.S.” He said, “While some members of the public think everyone from Afghanistan should get asylum, our system just doesn’t work that way.” https://on.wsj.com/3UKhoZB

Mr. Yale-Loehr was quoted by the Associated Press in “Posts Misrepresent Border Encounters With People on Terror Watchlist.” The article discusses misleading claims by House Republican leader Kevin McCarthy and others that almost 100 people on the watchlist recently entered the United States across the border. The article notes that U.S. Customs and Border Protection (CBP) reported 98 Border Patrol encounters with non-U.S. citizens on the watchlist who crossed the southwest border between U.S. ports of entry in fiscal year 2022. Every person counted as part of that tally, however, was stopped and detained by CBP, and that figure possibly included people who crossed multiple times. “To say that 98 terrorists made it into the U.S. is an exaggeration. These 98 were all caught,” Mr. Yale-Loehr said. https://apnews.com/article/fact-check-border-terrorist-watchlist-630330935018

Mr. Yale-Loehr was quoted by FactCheck.org in “Misleading Attack About Democrats and Criminal Immigrants.” The article discusses an ad from a conservative group, Citizens for Sanity, that misleadingly claims that “every Senate Democrat voted against deporting criminal illegal immigrants,” and mischaracterizes the criminal record of an undocumented person. Mr. Yale-Loehr noted that the Trump administration considered anyone who broke an immigration law to be deportable. On the heels of President Trump’s policy changes, the article notes, the number of such interior arrests rose 30% in fiscal year 2017 and rose again the following year before falling a bit in fiscal 2019, according to the Pew Research Center. But even at its peak, the number was still “far lower than during President Barack Obama’s first term in office.” Mr. Yale-Loehr also pointed out that a rise in people put into immigration proceedings does not mean they were immediately deported, because such cases can take years to adjudicate. https://www.factcheck.org/2022/10/misleading-attack-about-democrats-and-criminal-immigrants/

Mr. Yale-Loehr spoke at a webinar on recent administrative changes to help immigrant workers in STEM fields. The free webinar, sponsored by the American Immigration Council, was held October 25, 2022. For more information, see https://aila-org.zoom.us/webinar/register/WN_DdU_yCSYR5CdNeuUe2145w

Mr. Yale-Loehr and Janine Prantl co-authored an op-ed, “Let Private Citizens Sponsor Refugees,” published in the New York Daily News. https://www.nydailynews.com/opinion/ny-oped-let-private-citizens-sponsor-refugees-20221015-dtepnanthfegnpf6anjirwt3by-story.html

Mr. Yale-Loehr was quoted by the Gothamist in “For New York City ‘Dreamers,’ Now is the Time to Act on Immigration Reform.” He said immigrant rights advocates are “working hard behind the scenes” to get legislation passed after the midterm elections. “One possible legislative package might include [Deferred Action for Childhood Arrivals] plus border security reforms,” he said. https://gothamist.com/news/for-new-york-city-dreamers-now-is-the-time-to-act-on-immigration-reform

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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. Visa Bulletin for September Notes ‘Steady Increase’ in Demand for Employment-Based Visas – Beginning September 1, 2022, U.S. Citizenship and Immigration Services will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 applications or petitions with related forms.

2. E-Verify Updates Initial Enrollment Process – The updates include new screens and requirements to ensure consistency with other pages in E Verify.

3. COVID-19 Vaccination Requirements Updated for Ukraine Parolees – All beneficiaries under the Uniting for Ukraine program aged 6 months and older must submit an attestation that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States, unless they are eligible for an exception.

4. DHS, DOL Publish Semiannual Regulatory Agendas – The agendas give an overview of what the agencies are considering during the upcoming one-year period.

5. EOIR Warns of Scammers Spoofing Agency Phone Number – In this scam, fraudulent callers posing as Executive Office for Immigration Review employees or officers advise individuals that their social security number has been compromised and request money from the victims.

6. DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification – The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.

7. Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers – Visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.

8. USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers – U.S. Citizenship and Immigration Services issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).

9. OFLC Releases Public Disclosure Data, Statistics, Foreign Labor Recruiter List and FAQ – The Department of Labor’s Office of Foreign Labor Certification has released new information.

10. DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy – The rule, effective October 31, 2022, continues the Deferred Action for Childhood Arrivals policy announced in a 2012 memorandum that DACA recipients should not be a priority for removal.

11. USCIS Reaches FY 2023 H-1B Cap – U.S. Citizenship and Immigration Services has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for FY 2023.

12. DV-2023 Selectees Only Need to Submit Application Form to Kentucky Consular Center, Not Supporting Docs, DOS Says – For DV-2023, selectees only need to submit to the Kentucky Consular Center the DS-260 immigrant visa application form for themselves and any accompanying family members, not supporting documentation.

13. E-Verify Reports System Outages During Case Creation – Users may experience system timeouts and increased processing times when creating and submitting cases.

14. Labor Dept. Reports FLAG System Issues – The Department of Labor recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

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 – September 2022 – 1
ABIL Immigration Insider – September 2022 – 2

ABIL Immigration Insider – September 2022 – 3

1. Visa Bulletin for September Notes ‘Steady Increase’ in Demand for Employment-Based Visas

The Department of State’s (DOS) Visa Bulletin for September notes a steady increase in both U.S. Citizenship and Immigration Services and Department of State demand patterns for employment-based visas during the fiscal year. As a result, the Department expects that most employment-based preference category limits and/or the overall employment-based preference limit for FY 2022 to be reached during September. If the annual limit were reached, “it would be necessary to immediately make the preference category ‘unavailable,’ and no further requests for numbers would be honored,” the bulletin states.

For adjustment of status filing dates for September 2022, the Final Action Dates chart in the Visa Bulletin must be used for employment-based preference categories.

The bulletin also notes that the worldwide employment-based preference numerical limit for FY 2022 is 281,507.

Details:

• Visa Bulletin for September 2022, Dept. of State, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-september-2022.html
• USCIS Adjustment of Status Filing Dates for September 2022, Aug. 8, 2022, https://www.aila.org/infonet/adjustment-of-status-filing-dates-september-2022

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2. E-Verify Updates Initial Enrollment Process

E-Verify notified users via email on August 11, 2022, that it has updated the Initial Enrollment process. The updates include new screens and requirements to ensure consistency with other pages in E‑Verify. As a result, several changes affect users:

• Anyone enrolling a company in E‑Verify will have to set up a temporary user account to complete the enrollment process. This person is called the Enrollment Point of Contact (POC). The Enrollment POC is a different role from the POC on the E‑Verify account and can only access E‑Verify to complete a company enrollment.
• The person identified as the Memorandum of Understanding (MOU) signatory will become the E‑Verify POC. Program Administrators added during enrollment will not become E‑Verify POCs.
• Corporate Administrators are not required to sign an MOU. As a result, the Corporate Administrator user will be the E‑Verify POC.

• Only one Corporate Administrator user can be added during the enrollment process.

• Corporate Administrators who add a new child company location (employer) must add an MOU signatory and at least one Program Administrator for the child company they are enrolling in E‑Verify.

Details:

• E-Verify Enrollment Process, https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process

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3. COVID-19 Vaccination Requirements Updated for Ukraine Parolees

The Department of Homeland Security (DHS) has updated the COVID-19 vaccination requirements for beneficiaries paroled into the United States under the “Uniting for Ukraine” program. Effective August 10, 2022, all beneficiaries aged 6 months and older must submit an attestation that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States, unless they are eligible for an exception.

Previously, beneficiaries younger than five years old qualified for an exception to the COVID-19 vaccination requirement because the vaccine was not approved or licensed for use in that age group.

Details:

• U.S. Citizenship and Immigration Services alert, Aug. 10, 2022, https://www.uscis.gov/newsroom/alerts/updated-covid-19-vaccination-requirements-for-uniting-for-ukraine-parolees

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4. DHS, DOL Publish Semiannual Regulatory Agendas

On August 8, 2022, the Departments of Homeland Security (DHS) and Labor (DOL) published their semiannual regulatory agendas, which summarize projected and existing regulations. The agendas give an overview of what the agencies are considering during the upcoming one-year period. Below are selected highlights:

• Among other things, DHS plans to propose adjusting the fees charged by U.S. Citizenship and Immigration Services (USCIS) for immigration and naturalization benefit requests. On August 3, 2020, DHS adjusted the fees, imposed new fees, revised certain fee waiver and exemption policies, and changed certain application requirements via a rule. DHS was preliminarily enjoined by court order from implementing that rule. This rule would rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees.
• Also, DOL’s Employment and Training Administration and Wage and Hour Division, and DHS/USCIS, plan to jointly propose to amend H-2B nonimmigrant visa program regulations. The proposed rule would establish standards and procedures for employees seeking to hire foreign temporary nonagricultural workers for certain itinerant job opportunities, including entertainers and carnivals and utility regulation management.

Details:

• Unified Agenda of Federal Regulatory and Deregulatory Actions, Dept. of Homeland Security, 87 Fed. Reg. 48294 (Aug. 8, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-08/pdf/2022-14604.pdf
• Semiannual Agenda of Regulations, Dept. of Labor, 87 Fed. Reg. 48308 (Aug. 8, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-08/pdf/2022-14607.pdf

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5. EOIR Warns of Scammers Spoofing Agency Phone Number

The Executive Office for Immigration Review (EOIR) announced that it has recently been notified of phone calls that spoof the Arlington Immigration Court as part of a misinformation campaign. The callers often “spoof,” or fake, the immigration court’s main line, 703-305-1300, so the calls appear to be coming from EOIR on the recipient’s caller ID.

In this scam, fraudulent callers posing as EOIR employees or officers advise individuals that their social security number has been compromised and request money from the victims.

Questions about individual immigration court cases may be directed to the Automated Case Information Hotline at 1-800-898-7180, the Automated Case Information System, or the Immigration Court Online Resource.

Details:

• EOIR release, Aug. 3, 2022, https://www.justice.gov/eoir/pr/eoir-warns-scammers-spoofing-agency-phone-number-0
• Automated Case Information System, https://acis.eoir.justice.gov/en/
• Immigration Court Online Resource, https://icor.eoir.justice.gov/en/

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6. DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification

On August 18, 2022, the Department of Homeland Security (DHS) proposed a rule to allow for alternative document verification procedures for Form I-9, Employment Eligibility Verification. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.

According to the notice of proposed rulemaking (NPRM), such procedures could be implemented as part of a pilot program; upon the Secretary’s determination that such procedures offer an equivalent level of security; or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services under the Public Health Service Act, or a national emergency declared by the President under the National Emergencies Act.

The NPRM notes that in light of advances in technology and remote work arrangements, the Department of Homeland Security (DHS) is exploring alternative options, including making permanent some of the COVID-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I–9. The rule would not create such alternatives but would instead formalize the authority for the DHS Secretary “to extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option (in addition to the procedures set forth in regulations) for some or all employers, regardless of whether their employees physically report to work at a company location.” DHS said it would introduce any such alternative procedure in a future Federal Register notice.

Details:

• 87 Fed. Reg. 50786 (Aug. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-18/pdf/2022-17737.pdf

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7. Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers

According to reports, visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.

For example, excluding student and visitor visas, wait times for visas in Istanbul, Turkey, exceed 16 months; in New Delhi, India, wait times hover at nine months for the thousands of highly skilled temporary workers coming to the United States on H-1B and L-1 visas. Business visa processing in Chile can take up to three years.

The delays are thought to be at least partly the result of increased travel demand related to the COVID-19 pandemic, staffing issues at embassies and consulates, and a two-year shutdown of processing guestworker visas by the Trump administration. Some business groups and immigration attorneys advocate measures such as allowing remote interviews or permitting those with expiring visas to renew in the United States rather than requiring them to leave the country as a way of relieving backlogs. Reportedly, the Department of State (DOS) is considering such options. Meanwhile, DOS said it has doubled hiring of consular staff in fiscal year (FY) 2022 over FY 2021, and noted that “[n]early all U.S. embassies and consulates have resumed full visa services.”

Details:

• “Visa Bottlenecks Are Creating Headaches for Employers, Workers,” Aug. 16, 2022, https://news.bloomberglaw.com/daily-labor-report/visa-bottlenecks-are-creating-headaches-for-employers-workers
• “U.S. Visa Processing Delays Called Worst Since 9/11,” Voice of America, Aug. 3, 2022, https://www.voanews.com/a/us-visa-processing-delays-called-worst-since-9-11-/6685941.html

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8. USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers

On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).

The update does not make changes to existing policy or create new policy. The update consolidates and updates guidance previously included in the Adjudicator’s Field Manual, Chapter 32, as well as related appendices and policy memoranda.

Details:

• USCIS Policy Alert (Aug. 16, 2022),
• Part L—Intracompany Transferees, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-l

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9. OFLC Releases Public Disclosure Data, Statistics, Foreign Labor Recruiter List and FAQ

The Department of Labor’s Office of Foreign Labor Certification has released:

• Public disclosure data and selected program statistics for Q3 of fiscal year (FY) 2022. https://www.dol.gov/agencies/eta/foreign-labor/performance
• H-2B Foreign Labor Recruiter List for Q3 of FY 2022. https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list
• FAQ on the Foreign Labor Recruiter List. https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Round-16_Foreign_Labor_Recruiter.pdf

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10. DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy

The Department of Homeland Security (DHS) announced a final rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children. DACA allows beneficiaries an opportunity to receive a renewable, two-year work permit. DHS said that DACA has allowed more than 800,000 young people, dubbed “Dreamers,” to remain in the United States.

The rule, effective October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It continues the DACA policy announced in a 2012 memorandum from Janet Napolitano, then-Secretary of Homeland Security, that DACA recipients should not be a priority for removal. DHS received more than 16,000 comments during the public comment period. The final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:

• Maintains the existing threshold criteria for DACA;
• Retains the existing process for DACA requestors to seek work authorization; and
• Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

DHS noted that it may grant DACA renewal requests under the final rule but cannot grant initial DACA requests and related employment authorization due to a court injunction that remains in partial effect.

Advocates, including representatives from the American Immigration Lawyers Association and the American Immigration Council, hailed the Biden administration’s “positive step” but called for Congress to act also.

Details:

• Final rule (advance copy), DHS, https://public-inspection.federalregister.gov/2022-18401.pdf
• “DHS Issues Regulation to Preserve and Fortify DACA,” DHS news release, Aug. 24, 2022, https://www.dhs.gov/news/2022/08/24/dhs-issues-regulation-preserve-and-fortify-daca
• “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Napolitano memorandum), June 15, 2012, https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf
• Order of injunction, State of Texas v. United States, U.S. District Court for the Southern District of Texas, July 16, 2021, https://www.uscis.gov/sites/default/files/document/legal-docs/Texas%20II%20Dkt.%20576%20Injunction.pdf
• “Biden Administration Moves to Shore Up DACA Protections But Congress Needs to Act,” press release, American Immigration Lawyers Association, Aug. 24, 2022, https://www.aila.org/advo-media/press-releases/2022/daca-press-release

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11. USCIS Reaches FY 2023 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

USCIS said it has completed sending non-selection notifications to registrants’ online accounts. The status of such registrations will show as “Not Selected.” USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, are exempt from the FY 2023 H-1B cap. USCIS said it will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in additional H-1B positions.

Details:

• USCIS alert, Aug. 23, 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2023-h-1b-cap

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12. DV-2023 Selectees Only Need to Submit Application Form to Kentucky Consular Center, Not Supporting Docs, DOS Says

The Department of State (DOS) announced on August 25, 2022, that for the Diversity Visa (DV) program for fiscal year 2023 (DV-2023), selectees only need to submit to the Kentucky Consular Center (KCC) the DS-260 immigrant visa application form for themselves and any accompanying family members. Once a DS-260 is received from the selectee, KCC will next review it for completeness, after which the case will be eligible to be scheduled for a visa interview if the selectee’s visa case number is current as reflected in the Visa Bulletin, DOS said. The agency noted that this continues the practice that began during the last program year, and said a “data-driven decision” would be made later for future program years.

DOS said that selectees should not submit to the KCC any other required supporting documents; instead, “all supporting documents for DV-2023 selectees will be collected and evaluated in connection with the interview at the embassy or consulate where the visa application is made.”

Details:

• “Diversity Visa 2023 Update: Document Submission to KCC for DV-2023,” Dept. of State, Aug. 25, 2022,

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13. E-Verify Reports System Outages During Case Creation

E-Verify reported that it is experiencing intermittent system outages. As a result, “users may experience system timeouts and increased processing times when creating and submitting cases,” E-Verify said, adding that it is working to resolve the issue.

Employers must continue to complete and retain a Form I-9 for every person hired to work for pay in the United States within the required timeframes, E-Verify noted.

Details:

• E-Verify alert, https://www.e-verify.gov/about-e-verify/whats-new

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14. Labor Dept. Reports FLAG System Issues

The Department of Labor announced on August 24, 2022, that the Foreign Labor Application Gateway (FLAG) system “continues to experience intermittent issues when creating certain application forms, appendices, or other decision documents through Adobe PDF.” DOL recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

DOL said users should contact the FLAG Technical Help Desk Team if any decision document appears incomplete or otherwise contains inaccuracies.

Details:

• Service Impact notice, FLAG, Aug. 24, 2022, https://flag.dol.gov/

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New Publications and Items of Interest

Immigrant and Employee Rights Section free webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering free webinars for the public. https://www.justice.gov/crt/webinars

Agency Twitter accounts:

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

Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars. E-Verify webinar schedule. E-Verify released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month. Alliance of Business Immigration Lawyers:

• ABIL is available on Twitter: @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Kristin Peresta, of Klasko Immigration Law Partners, LLP (KILP), was recently awarded the Lisa Felix Award. Lisa Felix was an attorney at KILP who died in 2020 after a long illness. Ms. Peresta, KILP’s Director of Client Communications & Workload, was awarded the inaugural Lisa Felix Award “for her innate ability to spread unconditional, unwavering, and selfless kindness among the KILP community.”

Alison Li has joined Klasko Immigration Law Partners, LLP, as an associate attorney. She has nearly a decade of immigration law experience and works with regional centers, developers, and investors who seek to use foreign investment capital under the EB-5 program to fund job-creating projects. In addition to her work in EB-5, Ms. Li has assisted numerous clients in obtaining E, H, and L visas, among others. She has experience in consular processing through U.S. embassies and consulates worldwide. https://chambers.com/articles/klasko-immigration-law-partners-welcomes-associate-alison-li

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored a new blog post, “Will Head of Team Anywhere and Other New Fangled Jobs That Have Popped Up During the Pandemic Be Able to Fit Under Existing Visa Categories?”

Mr. Mehta and Kaitlyn Box co-authored a new blog post, “A Practical Guide to Spending the 3 and 10 Year Bars in the United States.” http://blog.cyrusmehta.com/2022/07/a-practical-guide-to-spending-the-3-and-10-year-bars-in-the-us.html

Charina Garcia and Melissa Harms, of Wolfsdorf Rosenthal LLP, will moderate two programs at the Worldwide ERC’s Global Workforce Symposium in October 2022. Ms. Garcia will moderate “Relationship Building Through Tech – How Immigration Tech Can Focus on a Workforce’s Well-Being,” a discussion on immigration management technologies and the relationship between mobility technologies, well-being, and human connection. Ms. Harms will moderate “DEIA Global Mobility Playbook: Issues Facing the LGBTQ+, Transgender and Gender Diverse Employee,” a discussion on the emergence of LGBTQ+ inclusive global mobility programs, issues related to relocating internationally to locations that criminalize transgender or sexual preference diversity; the process and impact of changing name or gender markers on national identity documents; and traveling and screening procedures for transgender and gender-diverse/fluid people. https://wolfsdorf.com/wr-immigration-honored-to-lead-two-groundbreaking-discussions-at-wercs-global-workforce-symposium/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored a new blog post: “Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo.” http://blog.cyrusmehta.com/2022/08/justice-barrett-and-the-fate-of-the-mayorkas-prosecutorial-discretion-memo.html

Wolfsdorf Rosenthal Immigration and Banias Law filed a complaint in the U.S. District Court for the District of Columbia on August 5, 2022, on behalf of hundreds of Chinese foreign national plaintiffs. The complaint asks the court to compel the Department of State to authorize FY 2022 EB-5 immigrant visa numbers to be allocated to all plaintiffs and their families by September 30, 2022, and to process their immigrant visa applications promptly. https://wolfsdorf.com/press-release-wr-immigration-files-lawsuit-to-stop-wastage-of-eb-5-investor-visas/

Charles Foster and Avalyn Langemeier will present a Foster LLP webinar, “Is Immigration Good for America?,” on Wednesday, August 31, 2022. The webinar will highlight the benefits of immigration to the United States. HR professionals can expect to learn about the contributions immigrants have made to the United States and the benefits they bring. https://register.gotowebinar.com/register/962752597448065803

Foster LLP announced that 16 Foster immigration attorneys were included in the 2023 Best Lawyers in America list. The guide honored firm lawyers in Austin, Dallas, and Houston, Texas, with a concentrated focus on immigration law. The Foster attorneys listed were:

Charles C. Foster

Andres Zamberk

Avalyn Castillo Langemeier

Brenda G. Hicks

Elise A. Healy

Florence L. Luk

Helene N. Dang

John W. Meyer

José R. Pérez, Jr.

Layla Panjwani

Nestor A. Rosin

Philip A. Eichorn

Robert F. Loughran (https://www.abil.com/abil-lawyers/robert-f-loughran/)

Sandra I. Dorsthorst

Two Foster attorneys were listed as Best Lawyers: “Ones to Watch”: Diana Dominguez and Vi Nguyen.

A new video from Wolfsdorf Rosenthal Immigration features Managing Partner Bernard Wolfsdorf (https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) describing the culture and success of his firm and how it has grown over the years. https://wolfsdorf.com/managing-partner-bernie-wolfsdorf-on-the-culture-and-success-of-wr-immigration/

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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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