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ABIL Global Update • February 2024

February 01, 2024/in Global Immigration Update /by ABIL

Headlines:

1. RED FLAGS IN SOCIAL SECURITY RELATED TO IMMIGRATION: AN OVERVIEW – This article provides an update on red flags in social security related to immigration in several countries.

2. BULGARIA AND ROMANIA – The European Council has decided to include Bulgaria and Romania in the Schengen Area for maritime and air passengers, effective March 2024.

3. CANADA – The Québec Immigrant Investor Program (QIIP) was reopened on January 1, 2024.

4. ITALY – The validity of residence permits for Ukrainians under temporary protection in Italy has been extended.

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

6. RUSSIA – New forms and procedures for applications and notifications have been introduced.

7. UNITED KINGDOM – There will be an imminent increase to the Immigration Health Surcharge (IHS). Also, the Home Secretary has unveiled a plan to cut net migration, among other developments.

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

ABIL Member / Firm News – ABIL Member / Firm News

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ABIL Global Immigration Update – February 2024

1. RED FLAGS IN SOCIAL SECURITY RELATED TO IMMIGRATION: AN OVERVIEW

RED FLAGS IN SOCIAL SECURITY RELATED TO IMMIGRATION: AN OVERVIEW

This article provides an update on red flags in social security related to immigration in several countries.

Belgium

Foreign nationals who are employed in Belgium by a Belgian employer pursuant to a Belgian employment contract are subject to Belgian social security: their employer must pay social security contributions in Belgium.

Foreign nationals can also work in Belgium on secondment basis. This means that they remain employed by their employer in their home country and are temporarily sent to Belgium; the employment contract (or similar document, e.g., a signed offer letter) with the foreign employer remains applicable, and a separate secondment letter governs specific aspects of the secondment. In this scenario, the home country’s social security can remain applicable provided an official certificate from a national social security office confirms this. Three situations can be distinguished:

Home country = European Economic Area member state (country that is part of the European Union (EU), Iceland, Liechtenstein, Norway), Switzerland, or the United Kingdom. The social security authorities of the home country can issue an A1 form, confirming that their national social security continues to apply during the Belgian secondment up to, in principle, a maximum of 24 months.
Home country = third country with which Belgium has entered into a bilateral social security treaty (e.g., United States, Canada, Brazil, India, Japan, Korean Republic, Israel, Australia). The home country’s social security authorities can issue a “Certificate of Coverage” confirming that their national social security continues to apply during the Belgian secondment up to, in most cases, a maximum of five years.
Home country = third country with which Belgium has not entered into a bilateral social security treaty. The foreign employer must obtain a statement from the Belgian national social security office confirming that Belgian social security does not apply during the secondment to Belgium. Based on the facts and documents presented (including a copy of the employment contract and secondment letter), the Belgian national social security office will decide whether there is still a direct relationship with the foreign employer during the secondment. A confirmation may be subject to change if, e.g., the Belgian national social security office concludes at a later stage that the employment conditions have changed.

Italy

Italy has reciprocal social security agreements with approximately 40 countries (including all EU countries, Canada, and the United States) whereby expatriates may remain under their home country’s social security scheme for a limited period. Agreements normally apply for a maximum of two years and may usually be extended for up to five years. Under the rules of the agreements, an employee of a non-EU company who is transferred to Italy for up to five years can continue to pay social security contributions abroad. For some countries, the foreign company must pay in Italy the minimum social security charges (approximately 9 percent of the salary). The foreign company must register with the Social Security Agency and provide evidence that social security contributions continue to be paid abroad during the period of assignment. For countries with which no agreement is in place, the company must pay social security contributions in Italy through a social security representative.

For more information, see https://www.inps.it/it/it/dettaglio-approfondimento.schede-informative.paesi-extra-ue-convenzionati.html (in Italian with English translation available)

Mexico

Hiring foreign talent can bring diversity and expertise to a workforce, but it also comes with specific considerations and obligations for employers in Mexico. This article summarizes red flags employers should be aware of when hiring a foreigner and the essential obligation of registering them within Mexico’s Social Security Institution (IMSS).

The employer must carefully review and verify all required documents, such as a valid work visa, passport, and academic or professional certificates. Before making a hiring decision, the employer must also verify if a foreigner has an expired or soon-to-expire work visa and take the necessary measures for the foreigner to have the document in force, because the lack of verification can result in legal consequences for the employer. For this reason, the employer must regularly check the validity of the work visa and ensure that the renewal process is initiated well in advance.

Failing to register a foreign employee with IMSS is a serious violation of labor regulations in Mexico. Employers must ensure prompt registration of the foreign worker with IMSS, provide access to health care, and comply with the legal requirements to protect both the employee and the employer.

Below is a list of red flags employers may face, and solutions to address those situations.

Red Flag: Neglecting to provide health insurance coverage as required by Mexican law, which can lead to fines and legal issues.

Solution: Offer comprehensive health insurance that meets the standards set by IMSS, ensuring the foreign employee’s well-being and the employer’s compliance with regulations.

Red Flag: Drafting incomplete or vague employment contracts, which may result in misunderstandings and legal disputes.

Solution: Create clear and comprehensive employment contracts, specifying terms of employment, responsibilities, compensation, and benefits, adhering to Mexican labor laws.

Red Flag: Employers unfamiliar with Mexican labor laws and regulations, who may unintentionally violate them.

Solution: Stay informed about Mexican labor laws and regulations or consult legal experts to ensure compliance related to foreign workers, safeguarding the employer’s reputation and legal standing.

Hiring foreign talent in Mexico can be a rewarding endeavor, but meticulous attention to detail is needed to navigate the legal complexities. By recognizing red flags and fulfilling obligations such as IMSS registration, employers can foster a positive and compliant working relationship with their foreign workforce, contributing to a successful and harmonious workplace.

Türkiye

Türkiye’s immigration procedures, like most countries’, are affected by local social security requirements. Issues related to social security law, employment law, and taxes must be considered by the Turkish employer sponsoring a work permit.

When a Turkish company sponsors a work permit, it must fully consider all options for complying with social security requirements. As in many European countries, Türkiye has many social security treaties whereby social security registration and payment of premiums of the work permit holder in the treaty country may satisfy the Turkish employer’s social security obligations. So, for example, if a Spanish national is registered and their social security payments are paid in Spain by their employer there, and the foreign national is then transferred to a Türkiye-based branch of that entity, continued social security registration and payment of premiums in Spain during the assignment in Türkiye may satisfy the Turkish sponsor’s social security obligations. This requires:

A social security treaty between Türkiye and the country where social security registration will continue and the premiums will continue to be paid;
Abiding by all restrictions within that treaty (e.g., not exceeding the maximum number of years this coverage may be used);
Timely filing and receiving approval for a Certificate of Coverage (CoC) in the country where the premiums are paid;
Notifying the Turkish Social Security Institute of the above;
If requested, notifying the Work Permit Directorate of the above.

If there is no social security treaty between Türkiye and the country where the premiums are being paid, offsetting the sponsor’s obligations in this manner will not be possible. In such cases, the Turkish sponsor of the work permit must register and pay Turkish social security premiums on behalf of the foreigner regardless of whether the salary is to be paid in Türkiye or the home country.

Additionally, as the work permit is adjudicated by a directorate under the Ministry of Labor (MoL), any non-compliance perceived in the filing/renewal of the work permit or observed in an MoL inspection can and will be forwarded to the appropriate directorate within the MoL, such as the Social Security Institute, Employee Health and Safety, or National Health Care.

A violation of social security requirements by an employer of a work permit holder is a major reason for compliance penalties.

2. BULGARIA AND ROMANIA

The European Council has decided to include Bulgaria and Romania in the Schengen Area for maritime and air passengers, effective March 2024.

According to reports, the European Council has unanimously approved the addition of Bulgaria and Romania to the Schengen Area for maritime and air passengers. European Council President Charles Michel said the addition was “a long-awaited step for Romanian and Bulgarian citizens to enjoy easier freedom of movement with the [prospect] of land transport to come.” Discussion of including entries via land continues into 2024.

The Schengen Area includes 26 countries. Twenty-two of those are European Union countries.

3. CANADA

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

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

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

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

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

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

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

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

4. ITALY

The validity of residence permits for Ukrainians under temporary protection in Italy has been extended.

Under Law December 30, 2023, No. 213 (Budget Law), residence permits for temporary protection issued to Ukrainian nationals fleeing from the war that expired on December 31, 2023, will remain valid until December 31, 2024.

Also under the law, temporary protection residence permits can now be converted into work residence permits.

5. THE NETHERLANDS

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

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

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

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

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

The Tjebbes Ruling

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

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

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

6. RUSSIA

New forms and procedures for applications and notifications have been introduced.

As of January 1, 2024, changes have been introduced in the forms for applications and notifications submitted to the Ministry of Internal Affairs regarding foreign employees, as well as the procedure for submitting notifications.

For electronic submissions of notifications regarding the conclusion and termination of an employment agreement, and quarterly salary notifications, either a simple electronic signature or an enhanced unqualified electronic signature should now be used (previously an enhanced qualified electronic signature was required).

New forms for the following documents must now be used:

Notification on fulfillment by employers and customers of work (services) of obligation to pay salary (remuneration) to a foreign employee—highly qualified specialist (HQS) (quarterly salary notification);
Notification on conclusion of an employment agreement or a civil contract with a foreign national;
Notification on termination of an employment agreement or a civil contract with a foreign national;
Application form for work permit issuance;
Application form for work permit renewal;
Application form for the issuance of a duplicate work permit;
Application form for the work permit amendment;
Application form of a foreign national for his involvement as an HQS.
Notification on employment of a foreign national by an organization providing employment services for foreign citizens in Russia.

7. UNITED KINGDOM

There will be an imminent increase to the Immigration Health Surcharge (IHS). Also, the Home Secretary has unveiled a plan to cut net migration, among other developments.

The relevant legislation to increase the IHS will come into force February 6, 2024. Below are highlights:

The increase will apply to visa applications submitted on or after February 6, 2024.
The IHS will increase from £624 to £1,035 per year of the visa for most adult visa applicants.
The discounted rate (for students, Youth Mobility Scheme applicants, and those under 18) will increase from £470 to £776.

Home Secretary Plans to Cut Net Migration

In December 2023, the Home Secretary announced some significant changes to the UK immigration system. Full details are unknown, but here is a summary of selected changes:

Skilled Worker Salary Threshold Increase

The usual Skilled Worker general salary threshold will increase in spring 2024 from £26,200 to £38,700. The exact start date is unknown. To sponsor a Skilled Worker visa, in general, the employer would pay the higher of the general salary threshold, the going rate for the role, or £10.75 per hour. Health and Care Worker roles, and roles with national pay scales (such as teachers), are unaffected by this change. Also, if the employer normally pays above £38,700, these changes should not affect future Skilled Worker applications.

Only 15 of the 225 occupations currently eligible for Skilled Worker sponsorship (as shown in table 1 here) have minimum going rate salary thresholds over the new £38,700 threshold. Roles with a going rate above £38,700 include, for example, IT project and program managers; business and financial project management professionals; financial managers and directors; marketing and sales directors; legal professionals not elsewhere classified; and chief executives and senior officials.

Although employers in sectors where pay is generally higher will not feel the effects of these changes, those who operate graduate schemes should review their salary levels for their 2024 intake if this is likely to include graduates of United Kingdom (UK) universities.

Shortage Occupation List Changes

Some employers sponsor roles on the shortage occupation list. This has meant the UK Visas and Immigration (UKVI) application fee is slightly lower and the salary threshold is slightly reduced because it needs to be the higher of £20,960; 80% of the going rate for the role; or £10.75 per hour.

The government said that as of spring 2024, it will scrap the 20 percent discount on the going rate. The government has asked the Migration Advisory Committee (MAC) to review the shortage occupation list again with a view toward reducing the number of roles on the list. It is unclear whether the £20,960 threshold will increase, such as to £30,960 as above for new entrants.

Changes for Sponsoring Care Workers – No Family Members

When someone is sponsored to work in a qualifying health profession, the application will be considered for a Health and Care Worker visa, rather than Skilled Worker. This means that the Immigration Health Surcharge does not need to be paid, and there is a lower UKVI application fee.

The government said that as of spring 2024 when a care worker or senior care worker is sponsored in a Health and Care Worker application, they cannot bring any dependent family members with them to the UK. This change will be significant for care homes and other health care providers. A further change is that care providers in England will only be able to sponsor workers if they are undertaking activities regulated by the Care Quality Commission.

Graduate Visa Route to be Reviewed

The Graduate route allows someone who has completed a degree at a UK university to apply for a two-year visa (or three years if they have completed a PhD). The government has asked the MAC to review this route—potentially with a view toward restricting or even abolishing it. Aside from removing it altogether, changes could include, for example, limiting it to graduates in certain subjects (such as science, engineering, and mathematics) and/or reducing the length of the visa.

What Employers Should Do Now

Employers who regularly sponsor Skilled Workers and run graduate programs should consider:

Reviewing existing graduate schemes for 2024 and seeing whether the salaries on offer will meet the new entrant minimum salary threshold, which could be increased to £30,960;
For those who must delay Skilled Worker sponsorship of those joining graduate programs, considering asking prospective candidates to apply for Graduate visas when they graduate in 2024, subject to any changes to the Graduate route; and
Reviewing overall pay scales to ensure that these are aligned with the minimum salary requirements to avoid discrimination claims from existing employees on lower salaries; and

The Home Office has published a fact sheet with more information about its plan to reduce net migration by increasing the Skilled Worker threshold and making other changes.

There have also been some other developments. The key points are as follows:

Skilled Worker Visas

The £38,700 general salary threshold to be introduced in spring 2024 will not apply to existing Skilled Worker visa holders. The fact sheet does not say anything about this, but on December 20, 2023, the Minister for Legal Migration and Delivery confirmed it in an answer to a written parliamentary question.

The going rates (minimum salaries for different occupation codes) will be increased in spring 2024 to the median salary for each occupation code. Existing Skilled Worker visa holders will be exempt from the new going rates. Their salary will need to be at or above the 25^th percentile (not the median) for the relevant occupation code when they apply to change employment, extend their stay, or settle.

Other Changes

Aside from the Home Secretary’s announcement, there have been some other developments:

Business visitor rule changes in the Autumn Statement. The Autumn Statement included a reference to simplifying and expanding the UK’s business visitor rules as of January 2024 to:

Broaden and clarify the activities that can be undertaken in an intra-corporate setting;
Offer wider coverage for the legal services sector; and
Simplify arrangements for those undertaking paid engagements.

During 2024, the government will also explore whether further improvements can be made to the business visitor rules.

Illegal working fines increase start date confirmed. The government previously announced a tripling of civil penalties (fines) for employers that employ someone who does not have permission to work in the UK. This change came into force on January 22, 2024. The fine for a first breach by a UK employer has increased from £15,000 to £45,000 per worker. For repeat breaches, the fine has increased from £20,000 to £60,000 per worker.

Relaxation of Business Visitor Rules

The Home Office will relax the rules for some business visitors. Those changes were formally announced in a statement of changes to the Immigration Rules and took effect January 31, 2024.

Expansion of the Youth Mobility Scheme

The statement of changes also includes further expansion of the Youth Mobility Scheme. Since June 29, 2023, New Zealanders applying for the Youth Mobility Scheme are eligible if they are aged 18 to 35 (it is normally 18 to 30) and can have a visa for three years (instead of the normal two-years).

As of January 31, 2024, the same rules apply for Australian and Canadian nationals. The statement of changes means that as of that date, Republic of Korea nationals also have the benefit of the expanded 18-to-35 age range, and Uruguay and Andorra are added to the list of eligible Youth Mobility Scheme countries.

New Publications and Items of Interest

Kingsley Napley has released FAQs: The Transition to eVisas in 2024. The FAQs note that throughout 2024, the United Kingdom’s Home Office plans to transition everyone who has a physical immigration document to an online immigration status, also known as an eVisa.

Alliance of Business Immigration Lawyers:

ABIL is available on X (formerly Twitter): @ABILImmigration
Recent ABIL member blogs are at http://www.abilblog.com/

ABIL Member / Firm News

Several ABIL members spoke at the Practising Law Institute’s 56^th Annual Immigration and Naturalization Institute conference on November 28-29, 2023:

USCIS Update and Processing Trends – Practical Tips: Marketa Lindt
Permanent Labor Certification Program (PERM) – Current Adjudication Trends: Vincent Lau, Bob White (Masada Funai).
Ethical Issues for the Immigration Practitioner: Cyrus Mehta
Supreme Court Update and Analysis: Immigration: Ira Kurzban (Kurzban Kurzban Tetzeli and Pratt P.A.)

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

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

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

Klasko Immigration Law Partners announced new leadership changes at the firm. Starting January 1, 2024, the following leadership positions will be effective:

Ronald Klasko, Chairman. Mr. Klasko will continue to concentrate on the firm’s strategic growth and vision.
William (Bill) Stock, Managing Partner. Mr. Stock will continue to enhance the firm’s operations across all office locations.
Elise Fialkowski, Corporate Team Co-Chair
Michele Madera, Corporate Team Co-Chair. Together, Ms. Fialkowski and Ms. Madera will lead the Corporate Immigration Practice, strengthening existing client relationships and offerings for new clients.
Timothy (Tim) D’Arduini, Partner-In-Charge of DC Office. D’Arduini will lead the opening of the firm’s new office and expand its footprint into the D.C. metro area.

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

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

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

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

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

Cyrus Mehta and Jessica Paszko co-authored several new blog posts: 2023 In Perspective From The Insightful Immigration Blog and Scripps v. Jaddou Offers Nuanced Interpretation of Final Merits Determination in Reversal of EB-1B Denial for Outstanding Researcher.

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

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

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

WR Immigration has posted several new blog entries: USCIS Increases H-1B Premium Processing Fee to $2,805, Alongside Fee Increases for Other Case Types; What Happened With the Form I-9? End-of-Year Recap; and Department of State Announces H-1B Visa Renewal Pilot Program in the U.S.

WR Immigration presented Chatting with Charlie: January 2024 Visa Bulletin Update on December 19, 2023. ET. The webinar provided a sneak peek of what’s in store for 2024 with an evaluation of the January 2024 Visa Bulletin.

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

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

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

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

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

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

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

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

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

Mr. Yale-Loehr was quoted by the Austin American-Statesman in Texas Democrats in Congress Say SB4 is Unconstitutional. Here’s What They’re Doing About It [available by subscription]. “They did it in Arizona,” Mr. Yale-Loehr said, referring to a 2012 Supreme Court case in which the Obama administration challenged a similar Arizona law. “[The Arizona law] was unconstitutional. It violated the federal government’s obligation to control immigration.”

Mr. Yale-Loehr was quoted by Newsday in Migrant Crisis: Politics Diminishes Likely Resolution, Analysts Say [available by subscription].

Mr. Yale-Loehr was quoted by Agence France-Presse in The Photo Intended to Prove That [Ukrainian President Volodymyr] Zelensky Received American Citizenship is a Digitally Forged Document (in Polish, with English translation available). He said, “A real naturalization certificate contains the person’s signature next to their photo. The certificate in the photo does not contain this. The alleged certificate also does not contain Zelensky’s signature at the top, but it should.” Mr. Yale-Loehr also noted that obtaining U.S. citizenship is a long process: “No person can simply obtain a certificate of naturalization. He must first go through the green card process, which means he must qualify for a green card based on asylum or sponsorship by an employer or close family member. This can take years. Even after receiving a green card, he has to wait 3-5 years before he can apply for naturalization.” In addition, Mr. Yale-Loehr said, he must have been physically present in the United States for at least three months immediately before applying for naturalization. “Zelensky did not meet these requirements,” he noted.

Mr. Yale-Loehr co-authored an op-ed in the Seattle Times, Outdated Green Card Laws Hurt Workers From India.

Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now. A new podcast by the Bipartisan Policy Center also featured discussion of the white paper. Mr. Yale-Loehr and his co-authors discussed their ideas for reforms to border management and asylum policy, worker visa programs, and DREAMer protections. While large, comprehensive immigration reform is unlikely to move forward in Congress soon, certain targeted reforms are both urgently needed and potentially achievable, they say.

Mr. Yale-Loehr was quoted by Bloomberg Law in Biden’s Immigration Agenda Faces Uncertain Fate in U.S. Courts. He said, “Federal courts are becoming the arbiters of immigration policy. That makes it very difficult for any administration to manage immigration because no matter what they try to do administratively, someone will sue them in federal court.”

Mr. Yale-Loehr was quoted by NY1.com in U.S. Senators Search for Border Policy Deal, as Experts Downplay Potential Short-Term Impact on NY’s Migrant Influx. He warned that detaining and quickly expelling migrants before asylum screenings would not solve the influx problem for cities like New York, which is grappling with a surge of migrants. “Probably not, because the crisis is larger than any one piece of legislation.” Mr. Yale-Loehr likened the proposed policy changes in Congress to a bandage over a gaping wound and said broader reforms are needed. He suggested that Congress consider ideas like making more work visas available. “We need to have a balanced approach. Yes, we need to have deterrence so that only those people who deserve to be in the United States can come. But we also need to find more legal pathways for people to enter legally in the United States, so that they are not tempted to enter illegally,” he said.

Mr. Yale-Loehr was quoted by CBS News in Texas Immigration Law Known as SB4, Allowing State to Arrest Migrants, Signed by Gov. Greg Abbott. He called SB4 “unprecedented,” noting that the Texas law is more sweeping in nature than SB 1070, a controversial 2010 Arizona law that penalized unauthorized immigrants in various ways, including by empowering state police to stop those believed to be in the country unlawfully. The U.S. Supreme Court partially struck down that Arizona law in 2012, concluding that states could not undermine federal immigration law. “It’s by far the most anti-immigrant bill that I have seen,” Mr. Yale-Loehr said of SB4.

Mr. Yale-Loehr was quoted by the Cornell Chronicle in Research Team Led by Dr. Gunisha Kaur Wins 2023 National Academy of Medicine Catalyst Prize. The article discusses Dr. Kaur’s winning research project, Digital Solutions to Reduce Maternal Morbidity and Mortality in Refugee Women, which aims to clinically train and validate a digital refugee health system. Dr. Kaur collaborated with Mr. Yale-Loehr and another professor on the project. “Many refugees and asylum seekers worry that if they seek medical help while pregnant, they might be deported,” Mr. Yale-Loehr said. “This new research builds on prior work Dr. Kaur and I did dispelling that concern. Our website Rights4Health informs immigrants about their eligibility for public benefits.”

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

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

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

ABIL Immigration Insider • January 7, 2024

January 07, 2024/in Immigration Insider /by ABIL

In this issue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – January 2024

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

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

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

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

Details:

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

2. DOJ Sues Texas Over State Migration Bill

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

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

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

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

Details:

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

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

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

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

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

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

Details:

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

4. ABIL Global: Canada

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

In a marked departure from its points-based immigration program selection system, the Honourable Sean Fraser, then-Minister of Immigration, Refugees and Citizenship, announced on May 31, 2023, the launch of a new measure of category-based selection for Canada’s Express Entry management system to respond to Canada’s changing economic and labor market needs, with an additional focus on Francophone immigration. This measure allows Immigration, Refugees and Citizenship Canada (IRCC) to issue invitations to apply to candidates who hold specific skills, training, or language abilities. For 2023, category-based selection invitations will target candidates who have a strong French language proficiency or work experience in the fields of health care; science, technology, engineering, and mathematics (STEM) professions; trades, such as carpenters, plumbers, and contractors; transport; agriculture; and agri-food. As of January 2024, this list of categories is subject to change.

Express Entry is the system used by IRCC to manage skilled workers seeking to become Canadian Permanent Residents through the Federal Skilled Worker Program, the Federal Skilled Trades Program, the Canadian Experience Class, and a portion of the Provincial Nominee Program. Candidates are ranked according to a Comprehensive Ranking System (CRS), which is a points-based system that ranks candidates based on factors such as their education, language skills, work experience, and age. IRCC then periodically invites applicants with the highest scores to apply for permanent residence.

Among other category-based draws that began on June 28, 2023, IRCC issued invitations to apply in the following categories:

On July 12, 2023, IRCC issued 3,800 invitations to apply to candidates with French language proficiency with a minimum CRS score of 375.
On September 28, 2023, IRCC held a targeted draw in the agriculture and agri-food occupations, inviting 600 applicants with a minimum CRS score of 354.
On October 26, 2023, IRCC issued 3,600 invitations to apply to candidates in health care occupations with a minimum CRS score of 431.

In 2023, before the first targeted draw, the lowest CRS score was recorded at 481 points for candidates in an all-program draw.

Following the announcement and the beginning of targeted draws, the CRS cut-off decreased significantly for Express Entry candidates within the five targeted categories. However, since the first targeted draw at the end of June 2023, the lowest invitations for an all-program draw were issued to candidates with a minimum CRS score of 496. Thus, the CRS cut-off score has increased for profiles not included in the list of targeted occupations. In addition, the introduction of category-based selection has significantly diminished the number of invitations sent out to Express Entry profiles in the all-program draws.

The Canadian Government seeks to welcome 110,770 and 117,500 skilled workers in 2024 and 2025, respectively, through the Federal Skilled Worker Program, the Federal Skilled Trades Program, and the Canadian Experience Class. The Provincial Nominee Program will account for an additional 110,000 Canadian permanent residents in 2024, and 120,000 in 2025.

5. DHS Increases Premium Processing Fees

On February 26, 2024, the Department of Homeland Security will increase premium processing fees charged by U.S. Citizenship and Immigration Services (USCIS):

From $1,500 to $1,685, for Form I-129, Petition for a Nonimmigrant Worker, for H-2B and R-1 nonimmigrant status, and Form I-765, Application for Employment Authorization, for certain F-1 students
From $1,750 to $1,965, for Form I-539. Application to Extend/Change Nonimmigrant Status, for F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, L-2, H-4, O-3, P-4, and R-2 nonimmigrant status
From $2,500 to $2,805, for Form I-140, Immigrant Petition for Alien Workers, for employment-based classifications E11, E12, E21 (non-NIW), E31, E32, EW3, and recently available E13 and E21 (NIW)

A table in the final rule shows that overall, of those eligible for premium processing in fiscal years 2018 through 2022, 57 percent chose to submit a premium processing request:

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

Details:

USCIS alert (Dec. 27, 2023).
USCIS final rule, 88 Fed. Reg. 89539 (Dec. 28, 2023).

6. U.S. and Mexico Release Joint Communique Following Visit to Discuss Migration Management

On December 27, 2023, a U.S. delegation visited Mexican President Andrés Manuel López Obrador and others to discuss migration management. The U.S. delegation was led by Secretary of State Antony Blinken, Secretary of Homeland Security Alejandro Mayorkas, and White House Homeland Security Advisor Elizabeth Sherwood-Randall.

The two countries reaffirmed their existing commitments on fostering “orderly, humane, and regular migration,” including reinforcing their partnership to address the root causes of migration, and the two countries’ initiative for Cubans, Haitians, Nicaraguans, and Venezuelans. The communique emphasized ongoing cooperation, “to include enhanced efforts to disrupt human smuggling, trafficking, and criminal networks, and continuing the work to promote legal instead of irregular migration pathways.” Both delegations also agreed on the importance of maintaining and facilitating bilateral trade at the U.S.-Mexico border.

Mexican President López Obrador stressed the need to continue investing in ambitious development programs throughout the hemisphere. The delegations also discussed “the benefit of regularizing the situation of long-term undocumented Hispanic migrants and DACA recipients, who are a vital part of the U.S. economy and society.”

The two delegations agreed to meet again in Washington in January 2024.

Details:

Joint Communique (Dec. 28, 2023).

7. DOS Proposes Supplemental Questionnaire for Passport Applications

The Department of State (DOS) has published a 60-day notice seeking public comment on a proposed supplemental questionnaire to an existing passport application that would solicit information relating to the respondent’s identity, including family and birth circumstances, that is needed before passport issuance. If such information on Form DS-5513 is needed, a passport agency will mail the form to the applicant for completion and return, or the applicant can download and complete a fillable PDF version.

DOS will accept comments until February 26, 2024.

Details:

DOS notice, 88 Fed. Reg. 89002 (Dec. 26, 2023).

8. State Dept. Announces Pilot Program to Resume Domestic H-1B Nonimmigrant Visa Renewals

On December 21, 2023, the Department of State (DOS) announced a pilot program to resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29 to April 1, 2024.

Participation in the pilot is limited to individuals who have previously submitted fingerprints in connection with an application for a prior non-diplomatic nonimmigrant H-1B visa, are eligible for a waiver of the in-person interview requirement, and meet other applicable requirements. DOS said the goal of the pilot is “to test the Department’s technical and operational ability to resume domestic visa renewals for specific nonimmigrant classifications and to assess the efficacy of this program in reducing worldwide visa wait times by shifting certain workloads from overseas posts to the United States.”

Applicants who meet the requirements can participate during the application window by applying online. Written comments and related materials must be received by midnight April 15, 2024.

Details:

DOS notice, 88 Fed. Reg. 88467 (Dec. 21, 2023).

9. OFLC Reminds Employers About Deadlines for Peak H-2B Filing Season

On December 22, 2023, the Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2024, or later opened on January 2, 2024.

OFLC said it will randomly order for processing all H-2B applications requesting a work start date of April 1, 2024, that were filed during the initial three calendar days (January 2-4, 2024). OFLC warned:

If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will issue a Notice of Deficiency. If multiple filings are submitted during the three-day filing window, all applications will receive a Notice of Deficiency requesting that the employer demonstrate that the job opportunities are not the same. Employers that fail to establish a bona fide need for each application will receive a non-acceptance denial for each application.

Details:

OFLC announcement (Dec. 22, 2023).

10. USCIS Updates Policy Guidance for International Students

On December 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance regarding F and M nonimmigrant students, including the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status for these students and their dependents in the United States. USCIS said it “expects that this will provide welcome clarity to international students and U.S. educational institutions on a wealth of topics, including eligibility requirements, school transfers, practical training, and on- and off-campus employment.”

For example, USCIS said, the guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but such a student may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate an intent to depart after a temporary period of stay.

In addition, the guidance specifies how an F student seeking an extension of optional practical training based on a degree in a science, technology, engineering, or mathematics field may be employed by a startup company, as long as the employer adheres to the training plan requirements, remains in good standing with E-Verify, and provides compensation commensurate to that provided to similarly situated U.S. workers, among other requirements.

Details:

USCIS alert (Dec. 20, 2023).
USCIS policy alert, PA-2023-34 (Dec. 20, 2023).

11. State Dept. Expands Consular Authority for Nonimmigrant Visa Interview Waivers

On December 21, 2023, the Department of State (DOS) announced that it had consulted with the Department Homeland Security and determined that several categories of interview waivers are in the national interest. As of January 1, 2024, consular officers have discretion to waive the in-person interview for:

First time H-2 visa applicants (temporary agricultural and nonagricultural workers) and
Other nonimmigrant visa applicants applying for any nonimmigrant visa classification who:

- Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa; and

- Are applying within 48 months of their most recent nonimmigrant visa’s expiration date.

Consular officers may still require in-person interviews on a case-by-case basis or because of local conditions. DOS encourages applicants to check embassy and consulate websites.

Details:

DOS notice (Dec. 21, 2023).

12. State Dept. Advises on Passport Processing

On December 18, 2023, the Department of State (DOS) announced that passport processing times have returned to the agency’s pre-pandemic norm. As of December 18, 2023, DOS said, passport applications will be processed within 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service, which costs an additional $60. Processing times begin when DOS receives an application at a passport agency or center and do not include mailing times.

DOS said that this year, demand for passports was “unprecedented.” Between October 2022 and September 2023, the agency issued more than 24 million passport books and cards, the highest number in U.S. history.

Details:

DOS notice (Dec. 18, 2023).

13. Detained Workers Are Employees Due Minimum Wage in Private Facility Contracted With ICE, Supreme Court of Washington Finds

The main question in this case before the Supreme Court of the State of Washington concerned a challenge to the detained-worker pay practices of the GEO Group Inc., which owns and operates the Northwest ICE Processing Center (NWIPC), a private immigration detention center in Tacoma, Washington, under a contract with the federal government. The plaintiffs objected to GEO’s practice of paying civil immigration detainees less than Washington state’s minimum wage. Plaintiffs asked the court to determine whether Washington’s Minimum Wage Act (MWA) applies to detained workers in a privately owned and operated detention facility. The court concluded that it does.

GEO contracts with U.S. Immigration and Customs Enforcement (ICE) to confine up to 1,575 noncitizen, noncriminal adults in administrative civil custody as they await review and determination of their immigration status. Under the ICE contract, GEO developed and manages a Voluntary Work Program, the purpose of which is to provide detainees opportunities to work and earn money while confined. The NWIPC detainees “were not to be used to perform” the “core obligations” that, under the ICE contract, were the responsibilities and duties of GEO. However, GEO relied on the detained workers to perform “substantially the core work required of GEO under the contract.” GEO paid its detained workers $1 per day to perform these essential tasks.

The State of Washington and a class of NWIPC detainees sued GEO in September 2017. They alleged that GEO’s practice of paying detainees less than Washington’s minimum wage to work in the detention center violated Washington’s MWA.

The Supreme Court of Washington found that the detained workers at the private detention center were “employees” within the meaning of the MWA. The plaintiffs argued that an exemption indicates that the Washington legislature contemplated the MWA’s application to individuals in detention or custody who are permitted to work. They argued that the exemption unambiguously applies only to individuals detained in public, government-run institutions. Therefore, they said, the exemption does not apply to the detained workers at the privately owned and operated facility. The Supreme Court of Washington agreed.

Details:

Nwauzor v. The GEO Group, Inc., No. 101786-3 (Dec. 21, 2023).
“CEO Group Must Pay Minimum Wage to Immigrant Detainees, Court Rules,” Reuters (Dec. 22, 2023).

14. USCIS Reaches FY 2024 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.

USCIS said it will send non-selection notices to registrants through their online accounts. When the agency finishes sending the non-selection notifications, the status for properly submitted registrations that USCIS did not select for the FY 2024 H-1B numerical allocations will show:

Not Selected: Not selected—not eligible to file an H-1B cap petition based on this registration.

USCIS said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. USCIS will continue to accept and process petitions filed to:

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

Details:

USCIS alert (Dec. 13, 2023).

15. DHS Publishes Federal Register Notice Reiterating Extensions of TPS Re-Registration Periods for Several Countries

The Department of Homeland Security (DHS) published a Federal Register notice on December 13, 2023, reiterating extensions of the periods to re-register for Temporary Protected Status (TPS) under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. As previously announced, the re-registration period for each country is changing from 60 days to the full length of each country’s current TPS designation extension. The re-registration extensions are solely for TPS beneficiaries who properly filed for TPS during a previous registration period.

The 18-month re-registration periods for these current TPS beneficiaries, which are currently open, are extended to the following dates:

El Salvador, through March 9, 2025
Haiti, through August 3, 2024
Honduras, through July 5, 2025
Nepal, through June 24, 2025
Nicaragua, through July 5, 2025
Sudan, through April 19, 2025

DHS said that limiting the re-registration period to 60 days “for these particular beneficiaries might place a burden on applicants who cannot timely file, but who otherwise would be eligible to re-register for TPS. In particular, ongoing litigation resulted in overlapping periods of TPS validity that were announced in several Federal Register notices, which may confuse some current beneficiaries. This notice allows beneficiaries of these countries who have not been required to re-register for TPS for the past few years due to litigation to re-register through the entire designation extension period.”

Details:

DHS news release (Dec. 13, 2023).
S. Citizenship and Immigration Services notice, 88 Fed. Reg. 86665 (Dec. 14, 2023).

16. District Court Rules in College’s Favor in EB-1 Case

In Scripps College v. Jaddou, a U.S. District Court in Nebraska held that U.S. Citizenship and Immigration Services (USCIS) improperly denied the plaintiff’s I-140 immigration petition when it found that the beneficiary of the petition did not qualify for an employment-based first preference visa as an “outstanding professor or researcher.” The court ruled in favor of the plaintiff, Scripps College.

Scripps argued that USCIS’s denial of its I-140 petition must be reversed because USCIS made internally inconsistent findings, imposed novel evidentiary requirements, disregarded relevant factors, and was not supported by substantial evidence.

Citing various decisions, the court noted that agency action must be upheld on review unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” An agency decision is arbitrary and capricious if the agency acted outside “the bounds of reasoned decision-making, relied on factors which Congress has not intended it to consider, provided an explanation that runs counter to the evidence, or makes a decision that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” the court noted.

Among other things, the court found that USCIS had made inconsistent findings based on the evidence, and made findings that were controverted by the evidence. Further, the court said, the “unexplained internal inconsistencies” reflected that USCIS failed to articulate a satisfactory explanation for its action, including “a rational connection between the facts found and the choice made.” USCIS also “imposed novel evidentiary requirements in its denial” of Scripps’ I-140 petition, the court said. Concluding that USCIS’s decision “was arbitrary and capricious, an abuse of discretion, and contrary to the law,” the court granted Scripps’ motion for summary judgment and denied USCIS’s motion for summary judgment.

Details:

Scripps College v. Jaddou (Dec. 12, 2023).

17. ETA Seeks Information on STEM and Non-STEM Occupations in PERM Schedule A

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

ETA said its request for information (RFI) will provide the public an opportunity to address whether and why STEM occupations should be added to Schedule A, offer information on which occupations should be considered as falling under the umbrella of STEM, and request data, studies, and related information that should be considered to establish a reliable, objective, and transparent methodology for identifying STEM or non-STEM occupations with a significant shortage of workers that should be added to or removed from Schedule A. “To the extent possible and wherever appropriate, responses to this RFI should indicate the question number(s) and include specific information, data, statistical models and metrics, and any resources relied on in reaching conclusions for its claims, rather than relying on general observations,” ETA said.

Details:

PERM Schedule A Request for Information, announcement, Dept. of Labor (Dec. 15, 2023).
Request for Information (advance copy), Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations.

18. ETA Announces Adverse Effect Wage Rates for H-2A Workers in 2024

The Department of Labor’s (DOL) Employment and Training Administration (ETA) has announced Adverse Effect Wage Rates (AEWRs) for H-2A agricultural workers in 2024, for range (herding or production of livestock) and non-range (agricultural labor or services other than the herding or production of livestock) occupations. The monthly AEWR for range occupations in calendar year 2024 is $1,986.76. The non-range AEWR varies by state, and ranges from $14.53 to $19.25 per hour.

The AEWRs are for the employment of temporary or seasonal nonimmigrant foreign workers. AEWRs are the minimum wage rates DOL has determined must be offered, advertised in recruitment, and paid by employers to H-2A workers and workers in corresponding employment so that the wages and working conditions of workers in the United States who are similarly employed will not be adversely affected.

Details:

Federal Register notice (range occupations), 88 Fed. Reg. 86679 (Dec. 14, 2023).
Federal Register notice (non-range occupations), 88 Fed. Reg. 86677 (Dec. 14, 2023).

19. January Visa Bulletin Released; Religious Workers Category Extended

The Department of State’s Visa Bulletin for January 2024 notes that H.R. 6363, a stopgap funding bill signed on November 16, 2023, extended the employment fourth preference Certain Religious Workers (SR) category until February 2, 2024. The bulletin notes that no SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight February 1, 2024. Visas issued before that date will be valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight February 1, 2024.

The SR category is subject to the same final action dates as the other employment fourth preference categories per applicable foreign state of chargeability, the bulletin states.

Details:

Visa Bulletin for January 2024.

20. USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140

U.S. Citizenship and Immigration Services (USCIS) announced that as of December 15, 2023, it has begun transitioning the filing location for Form I-907, Request for Premium Processing, when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the service centers to appropriate USCIS lockboxes.

USCIS noted that this change does not apply to those filing Form I-140 concurrently with an associated application (such as Form I-485, I-765, or Form I-131). The agency said it will soon announce a filing location change for these forms, but as of now, such forms should be filed with the service centers as listed on the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker page.

USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

Details:

USCIS alert, including new lockbox addresses (Dec. 13, 2023).
USCIS Tips for Filing Forms by Mail (last reviewed/updated Dec. 13, 2023).

21. OFLC Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment

The Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator has determined that current requirements for labor supply states (LSS) will remain in effect, with one modification: OFLC will no longer recognize North Carolina and Texas as traditional labor supply states for the state of Michigan.

DOS said that this LSS determination was effective December 7, 2023, for employers who have not commenced recruitment after receiving a Notice of Acceptance. The determination will remain valid until the OFLC Administrator publishes a new determination on the OFLC website.

OFLC explained that a 2022 H-2A Final Rule implemented a new process for the OFLC Administrator’s LSS determinations. LSS are additional states in which an employer’s job order will be circulated and, if appropriate, where additional recruitment may be required. Earlier this year, the OFLC Administrator solicited public input about LSS and related recruitment mechanisms. Determinations include particular areas of the United States in which a significant number of qualified workers have been identified and who, if recruited through additional positive employer recruitment activities, would be willing to make themselves available for work in the state.

Details:

OFLC announcement (Dec. 7, 2023).

22. USCIS Releases Employment-Based Adjustment of Status FAQs

On December 8, 2023, U.S. Citizenship and Immigration Services (USCIS) released frequently asked questions (FAQs) about employment-based (EB) adjustment of status.

USCIS noted that the EB annual limit for fiscal year (FY) 2024 will be higher than was typical before the pandemic, but lower than it was in FYs 2021-2023. USCIS said it is dedicated to using as many available employment-based visas as possible in FY 2024, which ends on September 30, 2024.

Details:

USCIS FAQs (Dec. 8, 2023).

23. State Dept. Issues Final Rule to Eliminate Informal Evaluations of Immigrant Visa Applicants’ Family Members

Effective January 8, 2024, the Department of State (DOS) is amending its immigrant visa regulations by removing the section allowing a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility.

DOS explained that the existing regulation was promulgated in 1952, when a consular officer could more readily assess a family member’s potential qualification for a visa without a formal visa application. “Assessing eligibility for an immigrant visa is now a more complex task and not one which can be accomplished accurately with an informal evaluation,” DOS said.

Details:

DOS Final Rule, 88 Fed. Reg. 85109 (Dec. 7, 2023).

New Publications and Items of Interest

IER/HSI fact sheet on electronic completion of Form I-9. The Department of Justice’s (DOJ) Immigrant and Employee Rights Section (IER) has issued a fact sheet with the Department of Homeland Security’s Immigration and Customs Enforcement, Homeland Security Investigations. The fact sheet, How to Avoid Unlawful Discrimination and Other Form I-9 Violations When Using Commercial or Proprietary Programs to Electronically Complete the Form I-9 or Participate in E-Verify, discusses how employers can avoid violating the law when using such programs to complete the Form I-9 or E-Verify process. DOJ noted that several settlements “have involved employers that IER determined had committed discrimination related to their use of commercial or proprietary electronic Form I-9 programs.” These settlements “required employers to pay civil penalties, rehire workers with back pay, undergo training and monitoring, and change their employment eligibility verification practices to avoid future discrimination involving commercial or proprietary Form I-9 programs,” DOJ said, adding that “[u]nderstanding common mistakes that contribute to discrimination can help an employer when considering whether to use a commercial or proprietary program for completing the Form I-9 or participating in E-Verify.”

IER On-Demand Trainings. The Immigrant and Employee Rights (IER) Section of the Department of Justice’s Civil Rights Division is offering an on-demand training for employers on avoiding unlawful immigration-related employment discrimination. IER also provides an Employer Hotline at 1-800-255-8155.

Immigration agency X (formerly Twitter) accounts:

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

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

Alliance of Business Immigration Lawyers:

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

ABIL Member / Firm News

Several ABIL members spoke at the Practising Law Institute’s 56^th Annual Immigration and Naturalization Institute conference on November 28-29, 2023:

USCIS Update and Processing Trends – Practical Tips: Marketa Lindt
Permanent Labor Certification Program (PERM) – Current Adjudication Trends: Vincent Lau, Bob White (Masada Funai).
Ethical Issues for the Immigration Practitioner: Cyrus Mehta
Supreme Court Update and Analysis: Immigration: Ira Kurzban (Kurzban Kurzban Tetzeli and Pratt P.A.)

Klasko Immigration Law Partners announced new leadership changes at the firm. Starting January 1, 2024, the following leadership positions will be effective:

Ronald Klasko, Chairman. Mr. Klasko will continue to concentrate on the firm’s strategic growth and vision.
William (Bill) Stock, Managing Partner. Mr. Stock will continue to enhance the firm’s operations across all office locations.
Elise Fialkowski, Corporate Team Co-Chair
Michele Madera, Corporate Team Co-Chair. Together, Ms. Fialkowski and Ms. Madera will lead the Corporate Immigration Practice, strengthening existing client relationships and offerings for new clients.
Timothy (Tim) D’Arduini, Partner-In-Charge of DC Office. D’Arduini will lead the opening of the firm’s new office and expand its footprint into the D.C. metro area. He will be an essential part of the firm’s growth in the Mid-Atlantic region, and will play a key role in sustaining and enhancing the firm’s national and international capabilities. He also brings extensive compliance experience that will enhance the firm’s established worksite compliance practice area.

Mr. Mehta and Kaitlyn Box have co-authored a new blog post: Personal Conflicts of Interest Arising Out of the Israel-Hamas War.

Mr. Mehta and Jessica Paszko have co-authored several new blog posts: 2023 In Perspective From The Insightful Immigration Blog and Scripps v. Jaddou Offers Nuanced Interpretation of Final Merits Determination in Reversal of EB-1B Denial for Outstanding Researcher.

WR Immigration presented Chatting with Charlie: January 2024 Visa Bulletin Update on December 19, 2023. The presentation included a sneak peak of what’s in store for 2024 and an evaluation of the January 2024 Visa Bulletin.

Stephen Yale-Loehr was quoted by the Austin American-Statesman in Texas Democrats in Congress Say SB4 is Unconstitutional. Here’s What They’re Doing About It [available by subscription]. “They did it in Arizona,” Mr. Yale-Loehr said, referring to a 2012 Supreme Court case in which the Obama administration challenged a similar Arizona law. “[The Arizona law] was unconstitutional. It violated the federal government’s obligation to control immigration.”

Mr. Yale-Loehr was quoted by Newsday in Migrant Crisis: Politics Diminishes Likely Resolution, Analysts Say [available by subscription].

Mr. Yale-Loehr co-authored an op-ed in the Seattle Times, Outdated Green Card Laws Hurt Workers From India.

Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now.

A new podcast by the Bipartisan Policy Center featured discussion of a white paper, Immigration Reform: A Path Forward, co-authored by Mr. Yale-Loehr. He and his co-authors discussed their ideas for reforms to border management and asylum policy, worker visa programs, and DREAMer protections. While large, comprehensive immigration reform is unlikely to move forward in Congress soon, certain targeted reforms are both urgently needed and potentially achievable, they say.

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

ABIL Global Update • February 2023

February 01, 2023/in Global Immigration Update /by ABIL

In this issue:

1. TRUSTED TRAVELER PROGRAMS: AN OVERVIEW – This article provides an overview of trusted traveler programs in several countries.

2. FRANCE – There is a new draft immigration bill under review. The remuneration thresholds have been updated after an increase in the minimum wage. ETIAS is provisionally targeted to deploy in November 2023. Management of the employer tax has been transferred.

3. ITALY – The Italian government has set new quotas for non-European Union workers. Italy has introduced a new work visa for seafarers. The United Kingdom and Italy have signed an agreement on the exchange of driver’s licenses. Italy has set new entry measures for inbound passengers arriving from China.

4. MEXICO – New governmental fees for several immigration procedures are in place for 2023.

5. RUSSIA – Permanent residence permit criteria for foreign investors has been established. Fingerprinting capabilities are expanded to all territorial divisions of the Ministry of Internal Affairs. IT specialists and foreign investors are no longer required to obtain temporary residence permits before applying for permanent residence. New regulations are in force for foreign residents extending their visas. Medical insurance details are no longer required to be included in most labor agreements with foreign workers. Russia announces mutual recognition of visas Between the Russian Federation and the Republic of Belarus

6. UNITED KINGDOM – Negative pre-departure COVID tests are required for travelers to the UK from mainland China. The Immigration Skills Charge exemption for certain Senior or Specialist Worker applications has come into force. The High Court has ruled in an important case for pre-settled status holders. Phased priority service has returned for pending family status applications. Certificate of Sponsor allocation requests are causing headaches. Potential new immigration policies have been leaked to the press.

7. New Publications and Items of Interest – New Publications and Items of Interest

8. ABIL Member / Firm News – ABIL Member / Firm News

Download

ABIL Global Immigration Update – February 2023

1. TRUSTED TRAVELER PROGRAMS: AN OVERVIEW

This article provides an overview of trusted traveler programs in several countries.

Canada and the United States

After finally arriving in Canada or the United States, have you ever waited hours in line at the port of entry just to cross the border? If you are tired of this, the solution may be the Nexus card—designed for the low-risk, frequent traveler seeking expedited border crossing.

Membership in the NEXUS program can significantly reduce wait times by granting privileges for five years that regular travelers do not have: dedicated processing lanes at land border crossings including designated preclearance security check lanes, access to NEXUS kiosks when entering Canada, access to the U.S Global Entry kiosk, and the ability to call a marine telephone reporting center to report a marine entry in Canada or the U.S.

For almost all travel between Canada and the United States, citizens of the two countries may travel without a passport and just a Nexus card. However, for travel by air from Canada to the United States, traveling with just the Nexus card is only accepted at the eight major Canadian airports (YYZ, YVR, YYC, YUL, YEG, YWG, YOW, YHZ) with a U.S. preclearance area.

Who is eligible to apply for this Trusted Travel Document? What are the prerequisites?

Canadian and American citizens, and Mexican citizens who are members of the Viajero Confiable (Trusted Traveler) program
Permanent residents of Canada and the United States after residing in their respective country for at least three years
Those admissible to Canada or the United States under immigration laws
Those who can pass risk assessments by both countries—those convicted of a serious criminal offense in any country without pardon may be disqualified

Permanent residents exempt from the three-year rule include individuals in the Canadian or American armed forces serving in a foreign country and their family members, or individuals serving at a Canadian or American diplomatic mission or consular post in a foreign country and their family members.

Applicants need proof of birth, identification, citizenship or residency documents, and a $50 USD processing fee. There is no charge for children under 18.

Upon conditional approval, individuals will be contacted to schedule an interview at a NEXUS Enrollment Center, where they will be interviewed by a Canadian Border Services Agent and/or a U.S. Customs and Border Protection officer. The official will verify the accuracy of the information on the application, check identity and review original documents, and take fingerprints.

Anyone who has been arrested, charged, or convicted of an offense in the past should seek legal advice before attempting to enroll in NEXUS. Similarly, those who have had a Customs violation may be disqualified. There are also immigration implications to enrollment; individuals who travel on business or for work should consult an immigration professional before proceeding.

If accepted into NEXUS, the official will take photos of the new member’s irises for identification with the Canadian self-serve kiosks and a headshot for the NEXUS card, and will explain the terms and conditions.

Canadian NEXUS enrollment centers were closed due to the pandemic. However, interviews at Canadian NEXUS enrollment centers (Lansdowne, Ontario, and Fort Erie, Ontario) and U.S. NEXUS enrollment centers have recently resumed, so there is hope that others will soon be able to enroll and take advantage of this program. All Canadian applicants are advised to schedule their appointments at the nearest U.S enrollment center. https://www.cbp.gov/travel/trusted-traveler-programs/nexus/enrollment-centers/canada

Schengen Area

The European Travel Information and Authorization System (ETIAS) is an automated IT system proposed by the European Commission to strengthen security and control irregular migratory risks posed by persons who travel visa-free to the European Union (EU). In addition, ETIAS is expected to ease the process of crossing borders for the vast majority of travelers who do not pose such risks. Therefore, every non-EU national who wants to travel to the Schengen area will be required to apply through the ETIAS system before taking a trip.

The ETIAS process starts with completing an online application form. After the form is submitted, the system will conduct checks and, if there are no complications, issue a travel authorization within minutes. This is expected to ease border checks, avoid bureaucracy and delays for travelers at the EU borders, reduce the risk of irregular migration from third-country nationals, and reduce the number of refusals at border crossing points.

Details:

“ETIAS: Your European Travel Authorisation,” Mazzeschi S.r.l. https://www.mazzeschi.it/etias-your-european-travel-authorisation/

2. FRANCE

There is a new draft immigration bill under review. The remuneration thresholds have been updated after an increase in the minimum wage. ETIAS is provisionally targeted to deploy in November 2023. Management of the employer tax has been transferred.

Immigration Bill

A draft immigration bill was submitted to the French Council of State on December 20, 2022, and is under review. It will be presented to the Council of Ministers before being examined by the Senate and then by the National Assembly, in first reading. This will be the thirtieth immigration law since 1980.

Among the measures that directly concern professional immigration are:

The creation of an “occupations in shortage” residence permit for sectors lacking sufficient numbers of workers. This permit would be available to any foreigner in illegal status “who has carried out a salaried professional activity appearing in the list of occupations in shortage for at least eight months out of the last twenty-four months and who has lived in France for at least three years.”
The creation of a “Talent—medical and pharmacy professions” status, which would apply to doctors, midwives, dental surgeons, and pharmacists.
The merger of the Talent Passport—Business Creation, innovative economic project, and economic investment permits into a single status, “Talent project bearer.”

Update of Salary Thresholds for Certain Statuses After Increase in Minimum Wage

Following the increase in the minimum wage on January 1, 2023, the minimum salary threshold to be eligible for “qualified employee Talent Passport” status is now 3,418.56 euros gross per month, and that of the “Employee on assignment Talent Passport” increases to 3,076.71 euros. The threshold of the European Blue Card Talent Passport is unchanged, at 4,486.37 euros gross per month.

ETIAS (European Travel Information and Authorization System)

The European Commission announced the deployment of ETIAS for November 2023, but this is only a provisional date.

Travelers not subject to a Schengen visa requirement must request prior authorization online before traveling to countries in the Schengen area. This system is comparable to the Electronic System for Travel Authorization in the United States.

Transfer of Employer Tax Management from OFII to DGFiP

An employer tax is due when a third-country national worker enters the French labor market, whether it is an initial entry or a change of status. For contracts or secondments of more than 12 months, it is 55% of the amount of the gross monthly salary of the employee, within the limit of 2.5 times SMIC, i.e., 2,350 euros at most.

As of January 1, 2023, the General Directorate of Public Finances (DGFiP) is responsible for managing and collecting the tax payable by employers of foreign labor provided for in Article L. 436-10 of the CESEDA and managed by the French Office for Immigration and Integration (OFII) until that date.

This tax will now be declared and paid annually and in arrears. Thus, the tax will be due for hires made during a year, and will be declared and paid in support of the Value-Added Tax (VAT) return the following year. The first steps for the tax due for 2023 will take place in February 2024.

To help companies calculate the amount of employer tax due to report on the VAT form, a calculation aid sheet will be available on the DGFiP website.

3. ITALY

The Italian government has set new quotas for non-European Union workers. Italy has introduced a new work visa for seafarers. The United Kingdom and Italy have signed an agreement on the exchange of driver’s licenses. Italy has set new entry measures for inbound passengers arriving from China.

New Quotas for Non-EU Workers

The Italian government has set 82,705 quotas to be allocated for 2023 to different categories of non-European Union (EU) citizens who intend to work in the country:

44,000 are reserved for entries for seasonal work.
31,205 quotas are for subordinate work, but only for specific sectors of activity and for certain nationalities.
7,000 are reserved to permit conversion for foreign citizens already in possession of a residence permit in Italy or the EU (study, seasonal work, permanent) intending to change status, i.e., to convert the existing permit into a permit for employment/self-employment.
500 quotas are for self-employment work, namely for entrepreneurs; startuppers; professionals; well known artists; Chairman, CEO, Member of board of directors, Auditor in an Italian company active since at least 3 years).

New Work Visa for Seafarers Launched

A new work visa for seafarers does not require the applicant to apply for a work permit beforehand, unlike many other kinds of work visas. The visa allows multiple entries for 365 days. It can be applied for even in the case of non-European Union (EU)-flagged vessels provided that they are docked in Italy. Seafarers working for either an Italian or a non-EU company can apply for this type of visa. A permit of stay is not required while working on the ship, but if disembarking in Italy, the worker must apply for a permit of stay within eight days. Seafarers can apply at any Italian consulate regardless of the country of residence. Documents must include:

A formal request from the shipping company
A job contract
A service agreement if the seafarer is not an employee of the shipping company
A ship registry certificate
An official letter signed by the Italian Port Captain (Capitaneria di Porto)

United Kingdom and Italy Sign Agreement on Exchange of Driver’s Licenses

On December 23, 2022, the governments of the United Kingdom (UK) and Italy signed an agreement for exchanging driver’s licenses. Once it enters into force, a citizen of the UK, Crown Dependencies, or Gibraltar, residing in Italy will be able to exchange a UK license for an Italian license without the need to take a test. The agreement also provides for the exchange of expired licenses for up to five years after their date of expiration as well as lost and stolen licenses, subject to domestic procedures.

According to a statement from the British Embassy in Rome, the two governments are “working hard” to bring the agreement into effect as quickly as possible after ratification on both sides. In the meantime, the right to drive in Italy for those residents before December 31, 2022, with a valid UK license has been extended to December 31, 2023.

New Entry Measures Set for Inbound Passengers From China

To limit the spread of COVID-19, Italy has set new entry measures for inbound passengers arriving from China, including the special administrative regions of Hong Kong and Macau. The new requirements include submitting a certificate to the carrier before embarking as evidence of having taken a molecular test in the preceding 72 hours or an antigen test in the preceding 48 hours, with a negative result.

Travelers from China also must take an antigen swab test at the airport upon arrival or, if this is impossible, at the competent local health authority within 48 hours from entry. Additional requirements apply if the test is positive.

For more information, see https://www.esteri.it/en/ministero/normativaonline/focus-cittadini-italiani-in-rientro-dall-estero-e-cittadini-stranieri-in-italia/

4. MEXICO

New governmental fees for several immigration procedures are in place for 2023.

On November 14, 2022, a decree enacting the Federal Income Law for Fiscal Year 2023 was published in the Official Gazette of the Federation. The decree specifies new governmental fees for immigration procedures.

As of January 1, 2023, the National Immigration Institute will charge a governmental fee for some immigration processes in Mexico that formerly were conducted at no charge, including:

Employer’s license (Constancia de Inscripción de Empleador [CIE]) granted to Mexican companies to hire foreigners in Mexican National Territory
Update of the employer’s license
Pre-approval process for a work visa
Pre-approval process for a family reunion visa

Details:

New fees, Government of Mexico. https://www.gob.mx/inm/articulos/conoce-las-nuevas-tarifas-de-pagos-de-derechos-2023?idiom=es (in Spanish, with English translation available)

5. RUSSIA

Permanent residence permit criteria for foreign investors has been established. Fingerprinting capabilities are expanded to all territorial divisions of the Ministry of Internal Affairs. IT specialists and foreign investors are no longer required to obtain temporary residence permits before applying for permanent residence. New regulations are in force for foreign residents extending their visas. Medical insurance details are no longer required to be included in most labor agreements with foreign workers. Russia announces mutual recognition of visas Between the Russian Federation and the Republic of Belarus.

Permanent Residence Permit: Criteria for Foreign Investors Established

On January 11, 2023, an Order of the Government of the Russian Federation came into force that establishes criteria for foreign investors. Foreign investors can now apply for permanent residence using a simplified procedure:

Along with foreign citizens considered to be foreign investors according to the established criteria, residence permits can be received by their family members also using the simplified procedure.

Fingerprinting Capabilities Expanded

As of January 1, 2023, fingerprinting can be done in all territorial divisions of the Ministry of Internal Affairs of the Russian Federation regardless of the address registration (place of stay or residence of a foreign national). Practitioners recommend that all foreign citizens complete fingerprinting, photographing, and medical examination procedures in the Russia region where they perform work activities to avoid any technical difficulties.

IT Specialists, Foreign Investors Not Required to Obtain Temporary Resident Permits Before Applying for Permanent Residence

Foreign citizens who are IT specialists or foreign investors can apply for a permanent residence permit without obtaining a temporary residence permit first. Requirements include:

IT Specialists: Documentation confirming formal education in IT, employed by companies accredited as IT companies, in a position requiring skills and knowledge in IT.
Foreign investors: This category awaits criteria to be set by the government. A foreign national will be required to present a document confirming status as a foreign investor.

The processing time for these types of applications was shortened and is up to three months from the filing date.

New Regulations in Force for 2023 for Foreign Citizens Extending Visas

Foreign citizens who filed documents for a temporary residence permit (TRP) or permanent residence permit (PRP) can extend their visas when they file the residence permit application. Visas will be extended for the duration of the review of the application for TRP or PRP.

Medical Insurance No Longer Required in Labor Agreements With Most Foreign Workers

As of January 1, 2023, foreign workers are no longer required to have voluntary medical insurance, and their employers no longer need to include medical insurance details in labor agreements with the workers, except for highly qualified specialists who temporarily reside in the territory of the Russian Federation. Family members of the latter also must have valid voluntary medical insurance certificates for the entire period of their stay in Russia.

Some practitioners believe that highly qualified specialists who acquired residence permits on the basis of their HQS work permits will also be exempt from the voluntary medical insurance requirement because when they receive the residence permits, they “transfer” from the category of those who “temporarily reside” to the category of “permanent resident.”

Russia Announces Mutual Recognition of Visas Between the Russian Federation and the Republic of Belarus

On February 1, 2023, a federal law ratifying an agreement between the Russian Federation and the Republic of Belarus introducing mutual recognition of visas entered into force. Once the agreement becomes effective, foreign citizens who have received a visa of any type to enter the Russian Federation will also be able to enter and stay on the basis of that visa, during the validity period, in the Russian Federation and in the territory of the Republic of Belarus.

6. UNITED KINGDOM

Negative pre-departure COVID tests are required for travelers to the UK from mainland China. The Immigration Skills Charge exemption for certain Senior or Specialist Worker applications has come into force. The High Court has ruled in an important case for pre-settled status holders. Phased priority service has returned for pending family status applications. Certificate of Sponsor allocation requests are causing headaches. Potential new immigration policies have been leaked to the press.

Negative Pre-Departure Tests for Travelers to the UK From Mainland China

As of January 5, 2023, airlines need to check that travelers from mainland China have negative COVID-19 tests taken no more than two days before departure. Children ages 11 and under do not need to be tested. The advice confirms that testing applies to all direct and indirect flights from mainland China to the United Kingdom (UK).

No Immigration Skills Charge for Some Senior or Specialist Worker Applications

The Immigration Skills Charge exemption for certain Senior or Specialist Worker (previously known as Intra-Company Transfer [ICT]) applications came into force on January 1, 2023, as anticipated. The Immigration Skills Charge is normally £1,000 per year of the visa. The exemption is for international transfers within the same corporate group for up to three years, where the sponsored worker is a European Union (EU) or Latvian noncitizen (not a citizen of Iceland, Norway, Liechtenstein, or Switzerland) and is transferring from a business established in the EU.

Unlike the Skilled Worker visa, Senior or Specialist Worker visas do not lead to settlement (indefinite leave to remain). But with the potential for the Immigration Skills Charge exemption and no English-language requirement, some sponsors may consider using it for transfers up to three years.

High Court Rules in Important Case for Pre-Settled Status Holders (Home Office to Appeal)

The High Court ruled in a potentially very significant case that the UK’s EU Settlement Scheme is incompatible with the Withdrawal Agreement upon which the UK left the EU. In particular, the court ruled that the almost three million EU citizens granted pre-settled status should not have to apply for settled status (a type of indefinite leave to remain) after five years in the UK. This could be a positive development for employers of EU citizens with pre-settled status, but the Home Office is expected to appeal the decision.

Phased Priority Service Returns for Pending Family Visa Applications

After being suspended last summer, most priority services for visa applications submitted outside the UK have long returned, including for work visas. However, priority services for family visa applications have been left until last. In a positive development, since January 9, 2023, UK Visas and Immigration (UKVI) has been contacting family visa applicants in date order to offer them use of the priority service. Less positive is the extra £573 UKVI fee. For those who purchase the priority service, their application should be completed within 15 working days. Standard processing times have been around 24 weeks, so applicants will need to decide whether the faster processing time is worth it for them. The priority service is expected to be reintroduced to new family visa applicants in early 2023.

Certificate of Sponsor Allocation Requests Cause Headaches

Many sponsors will be familiar with the current tedious delays and bureaucracy of obtaining an extra Certificate of Sponsor (CoS) to sponsor someone. The issues can be particularly troubling where a sponsored worker’s visa is about to expire and a CoS is urgently needed to submit their application. UKVI has publicized its “sponsorship transformation project,” and it is hoped that automation of CoS allocations for most sponsors will happen soon.

Potential New Immigration Policies Leaked to Press

As ever, immigration policy has been hitting the news headlines in the last month. While nothing has been formally announced or confirmed, leaks to the media in December and January include talk of increasing the minimum income required for spouse/partner applications, increasing minimum salary levels for jobs on the shortage occupation list, and restrictions to the Graduate visa route, such as reducing the visa from two years to six months.

Talk of restricting immigration is at odds with staffing shortages many employers are experiencing. There has been some interesting research on this issue post-Brexit.

7. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: https://www.abil.com/

ABIL is also available on Twitter: https://twitter.com/abilimmigration

8. 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

IMMPact Litigation (which includes ABIL firms Joseph & Hall PC, Kuck Baxter Immigration LLC, and Siskind Susser PC, along with Bless Litigation), along with several other entities, filed a federal class action lawsuit against U.S. Citizenship and Immigration Services challenging delays in processing unlawful presence waivers. Plaintiffs are spouses of U.S. citizens and permanent residents who cannot work in the United States lawfully and remain subject to removal due to the delays. https://www.aila.org/advo-media/press-releases/2023/class-action-filed-against-uscis-for-extreme

Kingsley Napley immigration partner Kim Vowden was quoted in The Times this month: “UK doctors call for simplification of visa rules to stem GP shortage.” She said that “[g]etting a sponsor licence is usually straightforward but operating it properly and complying with the duties which come with it can be hard for businesses which are trying to do it by themselves.”

Klasko Immigration Law Partners, LLP, has published “Client Alert: New Settlement Agreement Favorably Impacts H-4 and L-2 Dependent Spouses.” https://rb.gy/rjsjms

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/

Mr. Kuck was quoted by Law360 in “Ukrainians Seek To Claw Back $80M in Work Permit Fees.” Mr. Kuck said, “America should be disappointed in the way that USCIS has failed to hold itself accountable for the clear error of law it made when it charged vulnerable and desperate Ukrainian parolees for a work permit they did not need. Belatedly recognizing its mistake does not repair the damage done and the USCIS’ refusal to pay back its ill-gotten gains should appall all Americans.” https://www.law360.com/articles/1564727/ukrainians-seek-to-claw-back-80m-in-work-permit-fees (registration required)

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored a new blog post: “The Tension Between State Wage Transparency Laws and Labor Certification Recruitment.” http://blog.cyrusmehta.com/2023/01/the-tension-between-state-wage-transparency-laws-and-labor-certification-recruitment.html

Mr. Mehta served as the Chair of the Practising Law Institute’s Basic Immigration Law 2023 program on February 2, 2023. This program covered business, family, naturalization, and related areas and featured prominent immigration practitioners and government officials. https://www.pli.edu/programs/B/basic-immigration-law

Mr. Mehta served as the Chair of the Practising Law Institute’s program, “Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief,” on February 3, 2023. https://www.pli.edu/programs/A/asylum-special-immigrant-juvenile-status-crime-victim-and-other-immigration-relief

Mr. Mehta was quoted by the Times of India in “In U.S. Layoffs, More Poignant Stories and Helplines Emerge,” on layoffs of H-1B workers in the United States. https://timesofindia.indiatimes.com/business/india-business/in-us-layoffs-more-poignant-stories-and-helplines-emerge/articleshow/97429374.cms

Mr. Mehta and Manjeeta Chowdhary co-authored a new blog post: “How the Humanitarian Parole Program at the Border Can Serve as a Template for Further Relief Under the Broken Immigration System.”

Mr. 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 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

Nick Rollason (bio: https://www.abil.com/abil-lawyers/nicolas-rollason/), Kingsley Napley‘s Head of Immigration, and Louise Hodges, Head of Criminal Litigation, were named Corporate Immigration Lawyer of the Year and Investigations Lawyer of the Year, respectively, by the Who’s Who Legal Awards in November 2022. Kingsley Napley was named Independent Law Firm of the Year.

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

Sidley Austin LLP served as pro bono counsel in Cook County, Illinois v. Mayorkas, which the Supreme Court recently declined to review. The Court denied a certiorari petition filed by Texas and 13 other states that sought to revive a Trump-era public charge rule that was vacated nationwide.

WR Immigration has published several new blog posts: “Green Card Processing Slow Down Ahead: What Companies Can Expect and How to Prepare,” by Laura Bloniarz, Senior Associate, https://wolfsdorf.com/green-card-processing-slow-down-ahead-what-companies-can-expect-and-how-to-prepare/; and “Visa Bulletin for January 2023 Reports on Availability in the Employment First Category for China and India, Unavailability of Religious Workers Category,” https://wolfsdorf.com/visa-bulletin-for-january-2023-reports-on-availability-in-the-employment-first-category-for-china-and-india-unavailability-of-religious-workers-category/

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/

WR Immigration has launched a new video series: Overview of the H-1B Cap Process. https://wolfsdorf.com/video-series-overview-of-the-h-1b-cap-process2/

WR Immigration has published “5 Takeaways From the 2022 State Department Annual Report.” https://wolfsdorf.com/5-takeaways-from-the-2022-state-department-annual-report/

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 South China Morning Post in “U.S. Extends Special ‘Safe Haven’ Status for Hongkongers Seeking Refuge.” Mr. Yale-Loehr said that even if the temporary “safe haven” extension had not been granted in time, that would not have meant Hongkongers in the United States would have been deported immediately. “You cannot just pick someone up and kick them out. There’s due process for everyone in the United States,” he said. First, the Department of Homeland Security would have to issue a subpoena for individuals to appear before an immigration judge, and then those individuals could apply for asylum, a first step to a green card, he said. https://www.scmp.com/news/china/article/3208136/us-extends-special-safe-haven-status-hongkongers-seeking-refuge

Mr. 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 Voice of America in “Courts Set to Shape U.S. Immigration Policy in 2023.” Mr. Yale-Loehr said, “Courts are not a good way to manage immigration.” Also, commenting on United States v. Texas, Mr. Yale-Loehr said that based on the oral arguments in 2022, it is not clear how the Supreme Court will rule. https://www.voanews.com/a/courts-set-to-shape-us-immigration-policy-in-2023/6915829.html

Mr. Yale-Loehr was quoted by Morningstar in ” ‘We Need More People,’ Says Fed’s Powell. What Does That Mean for Immigration Reform?” 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, Mr. Yale-Loehr said. “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.” Issues on Mr. Yale-Loehr’s wish list for 2023 include “helping the Dreamers 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,” “modernization in our agriculture industry,” and passage of the Afghan Adjustment Act “to allow people who came from Afghanistan a permanent path to citizenship.” That would be “an awful lot to accomplish in one year” and a “hard battle” in an increasingly polarized Congress, he added. Mr. Yale-Loehr noted that the Biden administration can act on its own on some immigration issues, and that grassroots efforts eventually might end up spurring U.S. lawmakers to do more. https://www.morningstar.com/news/marketwatch/20230111426/we-need-more-people-says-feds-powell-what-does-that-mean-for-immigration-reform

Mr. Yale-Loehr was quoted by USA Today in “As Biden Hunts for Answers to Migrant Crisis, His Policies Are Increasingly Tied Up in Court.” Commenting on a Biden administration effort to create a new rule to expedite the removal of migrants who travel through Mexico but do not claim asylum there, Mr. Yale-Loehr said, “The devil will be in the details: How will the administration define a credible fear? How much time will people have to prepare for their hearing? If only a few days or weeks, few people will be able to gather their evidence or find an attorney.” Regarding the Biden administration’s development of immigration-related policies, he said, “Organizations have sued to stop administrative changes on both substantive and procedural grounds. Groups can usually find sympathetic judges to [halt] an administration’s immigration policy change.” https://www.usatoday.com/story/news/politics/2023/01/09/biden-immigration-mexico-amlo-supreme-court/10989696002/

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)

ABIL Immigration Insider • January 8, 2023

January 08, 2023/in Immigration Insider /by ABIL

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

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).

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

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

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

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

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

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).

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

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

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

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

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.

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

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

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

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

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

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/

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

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

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

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

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

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

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.

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

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

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 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.”

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

ABIL Global Update • February 2022

February 01, 2022/in Global Immigration Update /by ABIL

In this issue:

1. ATTRACTING HIGHLY SKILLED TALENT: AN OVERVIEW – This article provides an overview of programs to attract highly skilled talent in Italy and Turkey.

2. ITALY – Applications for startup visas can be filed January 27 to March 17, 2022. Also, Italy announced the number of foreign workers allowed in Italy for 2022.

3. RUSSIA – Russia has released new details about medical examinations, fingerprinting, and photographing procedures.

4. SPAIN – A new immigration regulation relating to audiovisual sector activities was published.

5. UNITED KINGDOM – This article provides updates on several developments, including a new digital process for Skilled Workers; no original document BRP right to work checks as of April 6, 2022; the expansion of Health and Care Worker visas; the addition of India and Iceland to the Youth Mobility Scheme; and the latest UK COVID-19 pandemic travel rules; and the fast approach of the United Kingdom’s (UK) new Global Business Mobility (GBM) route launch.

6. New Publications and Items of Interest – New Publications and Items of Interest

7. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – February 2022

1. ATTRACTING HIGHLY SKILLED TALENT: AN OVERVIEW

This article provides an overview of programs to attract highly skilled talent in Italy and Turkey.

Italy

The main programs to attract Highly Skilled Talent in Italy are:

EU Blue Card

The EU Blue card is a work permit for non-European Union (EU) highly skilled workers to be employed in Italy. It can be applied for at any time of the year because it is not subject to the limits imposed each year by the immigration quotas. The main eligibility requirements are (a) to possess an academic degree awarded on completion of a university course of at least three years’ duration and, if required, of the necessary professional qualifications (if the position offered is for a regulated profession); (b) to have a valid work contract to work in Italy or a binding job offer from an employer based in Italy, for at least one year, and a salary of at least approximately 25,000 euros per year; and (c) to be offered a high-level position in Italy.

Details:

“Blue Card Permit: How It Works,” Medium, https://mm-63015.medium.com/blue-card-permit-how-it-works-508def53f055
“EU Blue Card Work Permit,” Mazzeschi SRL, https://www.mazzeschi.it/italian-immigration/corporate/eu-blue-card-work-permit/

Italy Startup Visa

The Italia startup visa program is aimed at entrepreneurs intending to relocate to Italy to set up an innovative start-up business (business with high technological value) or to join an already established innovative startup company. More about this below.

In addition, Italy has two programs for highly skilled workers moving to Italy in the framework of an intra company transfer.

Details:

“Italy’s Startup Visa,” Agile Insider, https://medium.com/agileinsider/italys-start-up-visa-6a442a9fdbd1
“Italy Startup Visa,” Mazzeschi SRL, https://www.mazzeschi.it/italian-immigration/hnwi-investors-entrepreneurs/italy-startup-visa/
“Italy’s Intra-Company Visas,” Medium, https://mm-63015.medium.com/italys-intra-company-visas-bfa4b7e99b32

Turkey

Turkey’s most concerted effort toward focusing an immigration regime on highly skilled talent has been passing a law and regulations related to what is to be called the “Turquoise Card.” Unfortunately, although regulations were promulgated in 2017, this regime has yet to be implemented.

On March 14, 2017, regulations regarding the new Turquoise Card were published in the Official Gazette. In the Law on International Workforce (August 2016), this category of permanent residence was created for qualifying foreigners. Pursuant to Article 11 of the new law, a Turkuaz (Turquoise) Card would be given to foreign nationals after evaluation of their educational level, professional experience, contribution to science and technology, and/or the impact of their investments in Turkey. The Ministry of Labor’s (MoL) plan has been that a panel of experts within the Work Permit Directorate would adjudicate Turquoise Card cases. The regulations include the following points:

Categories for the Turquoise Card include highly qualified employees, certain investors, strategic/high-impact scientists or researchers, internationally successful artists or athletes, and specialists who will promote Turkey.
Any Turkish government agency may issue a “Certificate of Conformity” evidencing support for the particular foreigner’s application. Details regarding this certificate will be determined at a later date.
The general criteria (scoring system) for each category include the following considerations:
1. Highly qualified employees: Level of education, prestige of educational institution, salary level, foreign language abilities, and relevant professional experience.
2. Investors: Amount of investment, level of exports, number of employees, strategic need of sector of investment, strategic need of region where investment will occur, nature of intellectual or industrial property rights of investment.
3. Scientists/Researchers: Level of education and prestige of educational institution, patents, trademarks or licenses granted to the applicant, level of innovation of their activities or field of knowledge, academic or professional titles, strategic importance to Turkey of their sector of expertise, anything that shows the importance of their professional experience or qualifications.
4. Athletes or Artists: Nationally or internationally recognized awards or degrees, etc. For artists, recognition of their work.
5. Specialists to Promote Turkey or Turkish Culture: Duration, sustainability, influence, etc., of their promotional activities for Turkey. Activities carried out internationally as volunteers, etc.

In late 2021, the MoL announced on its official website that applications would soon be accepted; however, as of late January 2022, an application form has not been publicly released.

2. ITALY

Applications for startup visas can be filed January 27 to March 17, 2022. Also, Italy announced the number of foreign workers allowed in Italy for 2022.

Startup Visa Program Application Period Opens

The Italia startup visa program is aimed at entrepreneurs intending to relocate to Italy to set up an innovative startup business. Companies must meet the conditions set forth by Law 221/2012 or join an already established startup company.

Startup visas are subject to the availability of immigration quotas issued yearly by the government. The available quotas for 2022 were announced recently. The application can be filed from January 27, 2022, until March 17, 2022.

The program guarantees a streamlined application procedure, with an online clearance application and the issuance of a visa and residence permit under the fast-track procedure.

Italy Announces Number of Foreign Workers Allowed in Italy for 2022

The Italian government has announced a cap of 69,700 on the number of workers from outside the European Economic Area (EEA) allowed in Italy for 2022. The decree, dated December 21, 2021, was published in the Official Gazette in January 2022.

More than half of the quotas are reserved to entries for seasonal work (42,000); there are 20,000 quotas for subordinate work, but only for specific sectors of activity (road haulage, building, and the hospitality/tourism industry) and for certain nationalities; most of the remaining quotas are reserved to permit conversion (7,000) for foreign citizens already in possession of a residence permit in Italy or EU (study, seasonal work, permanent) intending to change status, i.e., to convert the existing permit into a permit for employment/self-employment.

The rest—a few quotas—are for self-employment work (500) and special categories (200) of foreigners (such as Venezuela residents with Italian ancestors or individuals who have completed specific training in their country of residence).

The deadline to submit applications is March 17, 2022.

Details:

Italy Startup Visa, Mazzeschi SRL, https://www.mazzeschi.it/italian-immigration/hnwi-investors-entrepreneurs/italy-startup-visa/
The Italian Policy for Innovative Entrepreneurship, Italian Ministry of Economic Development,

Italian Immigration & Citizenship, Mazzeschi SRL, https://www.mazzeschi.it/mazzeschi-asiadesk/wp-content/uploads/2021/12/Magazine-Jan-2022_compressed.pdf

3. RUSSIA

Russia has released new details about medical examinations, fingerprinting, and photographing procedures.

Medical Examination

Medical examination of foreign citizens who have entered Russia for the purpose of carrying out work activities in Moscow occurs at the branches of the State Budgetary Healthcare Institution of the city of Moscow, “Moscow Scientific and Practical Center of Dermatovenerology and Cosmetology of the Department of Health of the City of Moscow.” Special conditions for medical examination of highly qualified specialists have been introduced.

Also, at the GBU Migration Center in Moscow, foreign citizens can submit copies of the results of a medical examination as well as undergo fingerprinting and photographing procedures in Moscow.

In the Branch of the Labor Migration Center (Sakharovo), a foreign citizen must issue a notarized power of attorney for the person who accompanies him or her during the medical examination.

In the Labor Migration Center (Sakharovo) only, foreign citizens can undergo all medical examination procedures in one place. In other branches, there is no such possibility; several visits may be needed for the medical examination to be complete.

Foreign citizens who have entered the Russian Federation for the purpose of carrying out work activities and who are staying in the Russian Federation for less than 30 calendar days should not undergo medical examination, fingerprinting, or photographing procedures, according to representatives of the Ministry of Internal Affairs of the Russian Federation, who confirmed this with the Association of European Business and the U.S. Chamber of Commerce. The period of 30 calendar days is calculated anew after the next entry into the Russian Federation of a foreign citizen for the purpose carrying out work activities. If the stay of such foreign citizen is to exceed 30 calendar days, however, he or she must undergo these procedures before the expiration of the 30-day period.

Fingerprinting/Photographing and Medical Exam Submission

Fingerprinting and photographing procedures, as well as submission of the results of a medical examination, are carried out in:

Migration offices of the territorial departments of the Ministry of Internal Affairs of the Russian Federation
Authorized organization of the federal city of Moscow—Migration Center “Sakharovo”
Enterprise—Federal State Unitary Enterprise “Passport and Visa Service”

Details:

Medical Examination: Details, Vista Immigration, https://vista-immigration.ru/medical-examination-details/
Information about the Passport and Visa Service’s working hours, branches, addresses, and contact details are posted on the website of FSUE “Passport and Visa service,” https://pvsmvd.ru/. According to the information on the website, branches of this organization are currently not present in all regions of the Russian Federation.

4. SPAIN

A new immigration regulation relating to audiovisual sector activities was published.

On November 13, 2021, a new immigration regulation, Order PCM/1238/2021, was published in the Spanish Official Gazette (BOE), regarding the procedure for the entry and stay in Spain of third-country nationals who carry out activities before the public in the audiovisual or artistic fields or in recording to be broadcast by mass media.

Highlights of the new regulation include:

Activities for a period of less than 90 days in any 180-day period do not require work authorization. Entry will be under the Schengen regulations. In the event of foreign nationals subject to a visa requirement, a uniform visa will be issued.

If the 90-day period must be extended due to unexpected reasons, it is possible to submit a stay permit up to 180 days. The application must be submitted at least 30 days before the expiration of the initial allowed 90-day stay period in the Schengen area.

Activities for a period between 90 and 180 days may be carried out under a visa for stay for the audiovisual sector. Such an application is submitted at the Spanish consulate having jurisdiction over the applicant’s place of residence. The application can be submitted by either the applicant or their legal representative, or by the representative of the company hiring or posting the applicant who is authorized to act on their behalf. The visa processing time is 10 working days, and a police clearance certificate is not required.

Activities for a period of more than 180 days may be carried out under a residence authorization for the audiovisual sector. The application is submitted online by the hiring or posting company (or its representative) through the platform of the Ministry of Inclusion, Social Security and Migration. The processing time to resolve the application is 20 working days. Otherwise, “positive silence” applies. If the foreigner is not in Spain, a visa will be required. A criminal clearance certificate from the country (or countries) where the foreigner has resided during the last five years before submitting the application is required.

Family members accompanying the applicant may obtain visas and authorizations allowing their accompaniment.

5. UNITED KINGDOM

This article provides updates on several developments, including a new digital process for Skilled Workers; no original document BRP right to work checks as of April 6, 2022; the expansion of Health and Care Worker visas; the addition of India and Iceland to the Youth Mobility Scheme; and the latest UK COVID-19 pandemic travel rules; and the fast approach of the United Kingdom’s (UK) new Global Business Mobility (GBM) route launch.

New Digital Process for Skilled Workers

Most sponsors of Skilled Workers are familiar with European Union (EU) citizens being able to apply using the United Kingdom (UK) Immigration ID check app, but now:

Non-EU citizens with an existing biometric residence permit (BRP) can also apply in the UK using the app.

This means the applicant does not need to attend an in-person appointment. Instead, applicants can use the app to scan their BRP and face.

Most applicants will not receive a new BRP and will instead be issued an eVisa (digital immigration status). Visa nationals will receive a new BRP and an eVisa. The BRP can be used when boarding a plane to the UK to avoid issues for visa nationals using eVisas.

It is expected that Skilled Workers applying outside the UK will soon be able to apply using this digital process, as will those in other immigration categories.

No Original Document BRP Right to Work Checks as of April 6, 2022

As of April 6, 2022, employers must conduct an online right to work check for anyone who has a BRP. It will no longer be possible to check the BRP itself as part of an original document check (also known as a manual check).

There will be no need to re-check existing staff members, only new recruits and people who are extending their visas.

Separately, the Home Office updated its employer guidance on right to work checks, confirming that new legislation will take effect as of April 6, 2022, providing for a scheme allowing employers to use a digital verification process for right to work checks on British and Irish employees. Currently it is only possible to do original document (manual) checks. Employers will have the option to rely on certified Identification Document Validation Technology service providers to carry out the digital identity checks on their behalf. If the employee does not have a valid British or Irish passport, an original document check must be made. The scheme is still in development. In the meantime, employers can continue to carry out original document checks on British and Irish employees.

Expansion of Health and Care Worker Visas

A temporary 12-month expansion of the Health and Care Visa scheme is planned starting in February 2022.

The change means that those in Care Assistant, Care Worker, Carer, Home Care Assistant, Home Carer, or Support Worker (Nursing Home) roles should qualify.

Those eligible for a Health and Care Worker visa benefit from lower UK Visas and Immigration (UKVI) application fees, do not pay the Immigration Health Surcharge and, in theory at least, have the advantage of fast-track processing.

India and Iceland Join Youth Mobility Scheme

On January 1, 2022, Indian and Icelandic nationals were added to the Youth Mobility Scheme.

18- to 30-year-olds from eligible countries can apply for a two-year visa to live and work in the UK.

While this is a positive development, there are only 3,000 places for Indian nationals under the Indian Young Professionals Scheme, and they must meet extra criteria by showing that they have a degree qualification or three years of skilled work experience.

The ballot system process for Indian nationals has not yet been released, so applications are not possible now.

Latest UK COVID-19 Pandemic Travel Rules

As of January 2022, the COVID-19 pandemic is causing problems for people with UK visas and their employers. For example, some UK visa application centers are still closed, and there are new restrictions on international travelers arriving in the UK. The COVID-19 travel rules change frequently, so travelers should check for the latest updates.

New Global Business Mobility (GBM) Visa

The intended launch of the GBM route is fast approaching. The Home Office promised a “cohesive system” for overseas businesses to assign employees to the UK for a range of business purposes by spring 2022. The new visa route will consolidate and expand on an array of existing immigration routes and introduce new opportunities for businesses both with and without a UK presence.

The GBM route will consist of five categories:

Senior or specialist worker—for individuals whose skills are required in the UK for a specific business purpose;
Graduate trainee—for individuals who are on a UK placement as part of a structured training program;
UK expansion worker—for individuals who are on an assignment as part of a UK expansion of the business;
Secondment worker—for business-specific secondments; and
Service supplier—for individuals travelling to the UK to deliver a service in line with a UK trade commitment.

The requirements for the GBM visa will be based predominantly on those of the Intra-Company Transfer (ICT) route. This means that the UK business receiving the workers will require a sponsor license. The workers will need to satisfy salary and skill thresholds and should have completed a minimum period of employment overseas before applying. There will be no English language requirement. Although assignments on the GBM route will be temporary, there will be flexibility to switch to other permanent routes, such as the Skilled Worker route.

The Home Office said that the exact requirements for the route will be subject to the Migration Advisory Committee’s (MAC) review and may depend on the GBM subcategory in question. In its review of the ICT route in October 2021, the MAC made a series of recommendations, including increasing the minimum salary threshold and allowing time spent on the ICT route to count toward settlement. It will be interesting to see if these recommendations are incorporated within the GBM provisions under the Immigration Rules.

While some of the subcategories of the GBM visa mirror existing routes (the Graduate trainee, for example, is similar to the Intra-Company Graduate Trainee), others provide a new route for overseas businesses to send employees to the UK. The UK expansion worker, for example, is set to supplement the Representative of an Overseas Business route, allowing overseas businesses to send more than one worker and access the Sponsor Management System to manage assigned employees. However, unlike the Representative of an Overseas Business route, the UK expansion worker, and all the subcategories of the GBM visa, will be a sponsored route. This raises additional challenges—in terms of both logistics and costs—for employers and the Home Office, with the latter having to monitor the compliance of sponsor license holders located outside the UK.

In the coming weeks, further clarification is expected from the Home Office on how individuals and companies can apply under the GBM route and the permitted activities for a GBM migrant in the UK. It is hoped that the Home Office will also clarify the potential sponsor license system for overseas businesses and how it plans to carry out future compliance checks.

Details:

“Skilled Worker Visas and Sponsor Licences: A Guide for Employers,” Kingsley Napley, https://www.kingsleynapley.co.uk/services/department/immigration/skilled-worker-visas-and-sponsor-licences-a-guide-for-employers
“Right to Work Checks: What Employers Need to Know,” Kingsley Napley, https://www.kingsleynapley.co.uk/services/department/immigration/slp/right-to-work-checks
“Employer Right to Work Checks Supporting Guidance, UK Home Office, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1047370/2022_01_17_Employer_s_Guide_.pdf
“Biggest Visa Boost for Social Care as Health and Care Visa Scheme Expanded,” Gov.UK, https://www.gov.uk/government/news/biggest-visa-boost-for-social-care-as-health-and-care-visa-scheme-expanded?mc_cid=676b7e4d88&mc_eid=a6a62db06f
Coronavirus UK immigration FAQs, Kingsley Napley, https://www.kingsleynapley.co.uk/services/department/immigration/coronavirus-covid-19-uk-immigration-faqs
Coronavirus: Immigration and Borders, Gov.UK, https://www.gov.uk/government/collections/coronavirus-covid-19-immigration-and-borders

“Intra-Company Transfer Report: October 2021,” Gov.uk,

6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

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

7. ABIL Member / Firm News

Several ABIL Global members and attorneys from ABIL firms were listed in the 2022 Canadian Legal Lexpert Directory (https://www.lexpert.ca/rankings). The directory, published since 1997, is based on an extensive peer survey process. It includes profiles of leading practitioners across Canada in more than 60 practice areas and leading law firms in more than 40 practice areas. It also features articles highlighting current legal issues and recent developments of importance. The ABIL members and affiliated attorneys listed include:

Gomberg Dalfen S.E.N.C.:

Seth Dalfen

Avi Gomberg (bio: https://www.abil.com/lawyers/lawyers-gomberg.cfm?c=CA)

Genevieve Hénault

Caruso Guberman Appleby Corporate Immigration Law Firm:

Barbara Jo (BJ) Caruso (bio: https://www.abil.com/lawyers/lawyers-caruso.cfm?c=CA)

Sarah Fagan

Joel Guberman

Foster LLP presented a webinar, “Immigration: Are You Ready for 2022?,” on January 26, 2022. Presenters discussed what employers should keep in mind when planning their organization’s immigration needs for 2022 and the importance of immigration policy. Topics included a brief recap of 2021; business needs and developing corporate immigration policy; immigration timelines and compliance, including H-1B, L-1, TN, global sponsorship, permanent residence sponsorship, and I-9 compliance; and hot topics. Speakers included Avalyn Langemeier, Philip Eichorn, and Vi Palacios

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by the Atlanta Journal-Constitution in ” ‘A Huge Burden’: Bail Bonds for Detained Immigrants Higher in Georgia.” Mr. Kuck said, “It disappoints me that Georgia immigration courts seem to be setting higher bonds than other parts of the United States. [But] is there a correlation between a higher bond and an appearance [in court]? I don’t think there is. Anecdotally, from my own experience having represented thousands of people in immigration court, there is no correlation at all.” https://www.ajc.com/news/a-huge-burden-bail-bonds-for-detained-immigrants-higher-in-georgia/QAM6MJ4GQBESVIQEHGQZG3PPME/

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) provided the following seminar notices:

Avalyn Langemeier spoke on a panel, “What the H?!,” at the Texas Bar’s 20th Annual Course in Advanced Immigration Law on February 3-4, 2022. The panel discussed the failure to advise an employer/employee correctly on immigration matters, ethics, and situations that might arise. https://www.texasbarcle.com/materials/Programs/4303/Brochure.pdf
Oxana Bowman, Cathy Liu, and Andrés Zamberk will discuss in their webinar, “To (H-1)B or Not to (H-1)B—Preparing for the H-1B Cap Season,” the definition and elements of eligibility for the H-1B visa, lottery selection, and relevant timelines for the fiscal year 2023 H-1B cap registration process, and helpful tips when working with H-1B candidates and the H-1B process. The webinar, hosted by Foster LLP, will be held February 9, 2022. https://attendee.gotowebinar.com/register/8082799567985137419

· Avalyn Langemeier, Philip Eichorn, and Vi Palacios discussed in their webinar, “Immigration: Are You Ready for 2022?,” what employers should keep in mind when planning their organization’s immigration needs for 2022 and the importance of an immigration policy. This webinar was held January 26, 2022. https://attendee.gotowebinar.com/register/244362480959499536· Avalyn Langemeier discussed in her presentation, “Is Immigration to the U.S. Good for America?,” the contributions of immigrants and why immigrants are needed in the United States, in the Legalkwik seminar on January 27, 2022, hosted by HR Houston. https://www.hrhouston.org/events/EventDetails.aspx?id=1544444&group=· Oxana Bowman and Sandra Dorsthorst discussed in their webinar, “To (H-1)B or Not to (H-1)B – Cap Season,” strategies for contingency planning for employers whose sponsored employees are not selected in the H-1B cap lottery. This webinar, hosted by HR Houston, was held January 13, 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1578132&group=

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) and Jessica Paszko co-authored a new blog post: “Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria.”

Mr. Mehta and Kaitlyn Box co-authored several blog posts: “Expansion of STEM Practical Training and Broadening of O-1A Standards Allows Foreign Talented Students to Contribute to the U.S. Even If Rejected in the H-1B Lottery,” ; and “Frequently Asked Questions on Transferring the Underlying Basis of an I-485 Application From an I-140 Petition Under India EB-3 to an I-140 Under India EB-2,”

Mr. Mehta authored a blog posting: “2021 In Perspective From the Insightful Immigration Blog.” http://blog.cyrusmehta.com/2021/12/2021-in-perspective-from-the-insightful-immigration-blog.html

Greg Siskind, of Siskind Susser PC, was quoted by Time in “Tens of Thousands of Afghans Who Fled the Taliban Are Now Marooned in America’s Broken Immigration Bureaucracy.” The article notes that Afghans left behind after the U.S. evacuation were caught in a Catch-22: to be approved for humanitarian parole, they were told they must go to a U.S. embassy for vetting and biometrics screenings, but the U.S. embassy in Afghanistan suspended operations. Mr. Siskind said that when Afghans fled to nearby countries and reported to a U.S. Embassy there, USCIS’s response was, “if you’re out of the country, you’re not in danger anymore, and therefore you’re not eligible for humanitarian parole. His law firm has taken on pro bono cases for Afghans abroad applying for humanitarian parole. Mr. Siskind received his first denial notice from USCIS recently for an Afghan woman who fled to Pakistan with her three teenage children. The woman is a single mother who fears being a target of the Taliban because she worked with the World Bank, he said. USCIS didn’t explain why the woman was rejected; a line from the USCIS notice said simply that the agency “determined that parole is not warranted. Therefore we have denied your request for parole,” Mr. Siskind said. https://time.com/6141516/afghans-humanitarian-parole/

William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US), Michele Madera, and Nigel James of Klasko Immigration Law Partners, LLP, presented on January 19, 2022, lessons learned from the 2021 H-1B cap season to help companies plan for the upcoming 2022 H-1B lottery. They also provided updates on regulations and litigation outcomes. https://us06web.zoom.us/webinar/register/7216413311518/WN_vwfA4iA2QTO95p2dttvdlg

Wolfsdorf Rosenthal LLP has published several new blog posts: “State Dept. Announces F/M/J Nonimmigrant Visa Processing Posts Outside of Moscow for Applicants Resident in Russia”; “Biden Administration Implements New Actions to Increase Opportunities for STEM Students, Professionals, Others”; “Immigration Update”; “February 2022 Visa Bulletin Update”; and “I-9 Form Update: COVID-19 Pandemic-Related Temporary Policies, Employer Tips.” https://wolfsdorf.com/news/ https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Law360 in “Breyer Leaves Legacy of Extending Constitution to Migrants.” The article noted that U.S. Supreme Court Justice Stephen Breyer, who announced his retirement after nearly three decades on the bench, leaves behind a legacy of influential legal opinions and dissents that sought to extend constitutional rights and protections to noncitizens. Mr. Yale-Loehr stated that Justice Breyer “did not always prevail in extending constitutional or statutory rights to noncitizens.” But “whether he won or lost, Justice Breyer showed a commitment to apply the Constitution to noncitizens.” https://www.law360.com/immigration/articles/1459013/breyer-leaves-legacy-of-extending-constitution-to-migrants (registration required)

Mr. Yale-Loehr was quoted by Baptist News Global in “America’s Economy Urgently Needs More Immigrant Labor, Experts Explain.” Noting that the fields of science, technology, engineering, and mathematics (STEM) are areas where the United States could use a boost of immigrants, Mr. Yale-Loehr commented that the Biden administration’s shift in federal policy to allow more STEM scholars and experts into the country and make it easier for them to stay are “good first steps, but we must do more to address existing backlogs. So many workers have to be laid off because their [work] permits have expired.” https://baptistnews.com/article/americas-economy-urgently-needs-more-immigrant-labor-experts-explain/#.YfXCRprMK71

Mr. Yale-Loehr was quoted by Vox in “Biden Is Defending Key Trump Immigration Policies in Court.” For the Biden administration, he said, defending some of the Trump administration’s most controversial immigration policies could be an attempt to preserve tools to manage the border, or they could mark an internal disagreement on righting the wrongs of the Trump era. “Every administration wants to have as much flexibility and discretion as it can on immigration because you never know what conditions will arise in the future,” he said. https://www.vox.com/22893065/biden-family-separations-title-42-border-court

Mr. Yale-Loehr was quoted by Law360 in “Breyer Leaves Legacy of Extending Constitution to Migrants.” The article noted that U.S. Supreme Court Justice Stephen Breyer, who announced his retirement after nearly three decades on the bench, leaves behind a legacy of influential legal opinions and dissents that sought to extend constitutional rights and protections to noncitizens. Mr. Yale-Loehr stated that Justice Breyer “did not always prevail in extending constitutional or statutory rights to noncitizens.” But “whether he won or lost, Justice Breyer showed a commitment to apply the Constitution to noncitizens.” https://www.law360.com/immigration/articles/1459013/breyer-leaves-legacy-of-extending-constitution-to-migrants (registration required)

Mr. Yale-Loehr spoke at a free webinar, “Assessing Biden’s Immigration Changes,” on January 31, 2022. Also speaking was Stuart Anderson, Executive Director, National Foundation for American Policy. The webinar was co-sponsored by the Cornell Law School Federalist Society, the Cornell Migrations Initiative, the New York State Office of New Americans, and Catholic Charities of Tompkins Tioga. https://cornell.zoom.us/j/95921538483?pwd=SDA4akNPVkFoVjN2ZUVsU212b3RVdz09

Mr. Yale-Loehr was quoted by several media outlets regarding recent U.S. policy changes making it easier for STEM international students to work in the United States:

“Biden Admin. Expands Definition Of STEM For Int’l Students,” Law360. Mr. Yale-Loehr said, “Together, these administrative changes provide a small but significant step to help keep U.S. companies competitive in a global economy and to address workforce shortages. Larger actions, such as increasing the number of employment-based green cards, will require Congressional action.” https://www.law360.com/immigration/articles/1457587/biden-admin-expands-definition-of-stem-for-int-l-students (registration required)
“Foreign Students Will Now Have More Job Opportunities After Visa Modification,” Univision. Mr. Yale-Loehr said, “These changes will help keep American businesses competitive. The policy changes will make it easier for international students and professionals in so-called STEM fields to stay and work in the United States for an extended period of time after they complete their studies and graduate. Among other things, the changes add 22 new STEM fields, including bioenergy, cloud computing, and data science, that international students can study to qualify for work in the United States for up to three years after graduation.” https://www.univision.com/noticias/inmigracion/estudiantes-visas-f-1-tendran-mas-oportunidades-para-trabajar-eeuu (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by the Utica NY Observer-Dispatch in ” ‘Not to be there…is killing me’: Professor Aches for Comatose Wife Stuck in Ethiopia.” Mr. Yale-Loehr noted that both the pandemic and the United States’ “broken” immigration system have led to many family separations. “Family separation is a large and continuing problem in all of immigration,” he said. (subscription required)

Mr. Yale-Loehr was quoted by Univision in “Supreme Court Hears Arguments on the Release of Undocumented Persons Detained for More Than 6 Months.” He said, “Two lower courts held that, in certain cases, immigrants have that right [to a bail hearing]. But the conservative majority of the Supreme Court may disagree with those rulings,” he warns. The arguments, presented by immigration defense attorneys and the Justice Department, concern whether foreigners who have been detained for more than six months “have the right to a bail hearing to be released,” he said. In one of the cases, the immigrant Antonio Arteaga-Martínez argues that to avoid a violation of due process, “he and some other immigrants should have the right to a bond hearing after six months in detention. However, last year, the Supreme Court ruled 6-3 that immigrants who return illegally to the United States after being deported must be held without bond while they await a second deportation hearing,” he noted. Mr. Yale-Loehr said that “the cases are important, in part due to the large backlog of cases in immigration court. More than 1.5 million immigrants have cases pending with the [Executive Office for Immigration Review]. It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense.” https://www.univision.com/noticias/inmigracion/corte-suprema-indocumentados-liberacion-detenidos-seis-meses (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by several Brazilian newspapers about U.S. President Biden’s immigration reform plans. As an example, Mr. Yale-Loehr was quoted by Diario do Grande ABC Internacional in “Biden Faces Pressure From Companies to Reform Immigration System.” Mr. Yale-Loehr said, “Companies cannot remain competitive in a global economy or meet consumer demand if they cannot hire and retain the workers they need. This is especially true given the current labor shortages and pandemic delays in visa applications and renewals.” https://www.dgabc.com.br/Noticia/3823241/biden-enfrenta-pressao-de-empresas-para-reformar-sistema-imigratorio (in Portuguese, with English translation available)

ABIL Immigration Insider • January 2, 2022

January 02, 2022/in Immigration Insider /by ABIL

In this issue:

1. USCIS Extends Flexibilities for Responding to Certain Agency Requests – The flexibilities apply if the issuance date listed on the request, notice, or decision is between March 1, 2020, and March 26, 2022, inclusive. USCIS said it will consider a response to such requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

2. State Dept. Proposes Raising Consular Service Fees for Nonimmigrant and Special Visas – The Department of State has proposed raising fees for consular services for several nonimmigrant visa application processing fees, the Border Crossing Card for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee for certain J exchange visitors.

3. Restrictions on Travelers From Southern African Countries Lifted – Affected countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.

4. Certain Healthcare Workers Can Request Expedited Work Permits, USCIS Says – Qualified healthcare workers who have pending employment authorization document (EAD) renewal applications and EADs that will expire in 30 days or less, or that have already expired, can request expedited processing of the EAD application.

5. Labor Dept. Issues H-2A FAQ on Wage Disclosure and Calculation Requirements for Agricultural Clearance Orders – The Department of Labor’s Employment and Training Administration has released a set of frequently asked questions related to the wage disclosure and calculation requirements for agricultural clearance orders, including in the H-2A temporary labor certification program.

6. State Dept. Expands Waivers of In-Person Interviews for Certain Temporary Nonimmigrant Visa Applicants – The Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved USCIS.

7. Restrictions on Travelers From Southern African Countries Lifted December 31 – In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe.

8. For First Time, DHS to Supplement H-2B Cap With Additional Visas in First Half of Fiscal Year – The Departments of Homeland Security (DHS) and Labor (DOL) announced a forthcoming joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas for FY 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.

9. OFLC Reminds Employers That H-2B Filing Window Started January 1 – The filing window opened on January 1, 2022, for employers of H-2B workers to submit Form ETA-9142B, Application for Temporary Employment Certification, with appendices, requesting work start dates of April 1, 2022, or later. OFLC warned that H-2B applications requesting an April 1, 2022, work start date will be denied if they were filed before January 1, 2022.

10. State Dept. Updates Guidance on F-1, M-1 Student Intent to Depart and Residence Abroad Requirements – The Department of State updated its Foreign Affairs Manual on intent to depart and residence abroad requirements for F-1 and M-1 students. The guidance may also be useful for J-1 exchange visitors and Afghan scholars.

11. DHS Withdraws H-1B Selection Final Rule – Following a related action by the Department of Labor in response to a court order, the DHS withdrew a rule that would have changed the way USCIS selects H-1B registrations submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

12. U.S. Passport Fees Rose December 27 – The fee for a U.S. passport book increased by $20, the Department of State announced.

13. CBP Confirms Lifting of Temporary Travel Restrictions Between the United States and Canada, Mexico – U.S. Customs and Border Protection published notices on December 23, 2021, announcing the lifting on November 8, 2021, of temporary restrictions that applied to non-essential travel by fully vaccinated travelers with proof of COVID-19 vaccination status entering via land ports and ferry service along the U.S. borders with Canada and Mexico.

14. Immigration Provisions of Social Spending Bill in Limbo as Senate Democrats Struggle With Parliamentarian Rejections, Uncertainties – Lawmakers struggled to consider their options, including revisions to the immigration provisions or simply moving ahead without parliamentarian approval.

15. DHS Extends I-9 Flexibility to April 30, 2022 – DHS extended the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification, until April 30, 2022.

16. USCIS Releases Fourth-Quarter Data Showing Persistent Backlogs, Some Progress – USCIS released fourth-quarter fiscal year (FY) 2021 reports offering a snapshot of statistics for the entire fiscal year.

17. State Dept. Changes DV-2022 Document Submission Processing Requirements – Once the DS-260 immigrant visa application is received for all applicants associated with a case, that case will be eligible to be scheduled for a visa interview.

18. Smuggling, Forced Labor Ring Busted in Indictment – Two dozen defendants were indicted on federal conspiracy charges after a transnational, multi-year investigation into an alleged human smuggling and labor trafficking operation that illegally imported agricultural workers from Mexico, Guatemala, and Honduras, fraudulently using the H-2A visa program, and kept them in brutal conditions on Georgia farms.

19. Labor Dept. Issues Final Rule on Adjudication of H-2A Applications for Temporary and Seasonal Range Workers for Herding and Production of Livestock – Effective January 18, 2022, the Department of Labor is amending its regulations regarding the adjudication of temporary need for employers seeking to employ nonimmigrant workers for herding or production of livestock on the range.

20. Labor Dept. Issues 2022 Adverse Effect Wage Rates for H-2A Range, Non-Range Occupations – The Department of Labor published the 2022 Adverse Effect Wage Rates for the employment of temporary or seasonal workers to perform range (herding or production of livestock) and non-range agricultural labor or services.

21. Justice Dept. Adjusts Certain Immigration-Related Penalties on Employers – The Department of Justice has adjusted for inflation the civil monetary penalties assessed after December 13, 2021, for violations occurring after November 2, 2015.

22. Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule – The vacated rule amended regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.

23. USCIS Temporarily Waives 60-Day Rule for Civil Surgeon Signatures – USCIS is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit.

24. Labor Dept. Provides Guidance on Employers’ H-2B Visa Program Overtime Pay Obligations – The Department of Labor’s Wage and Hour Division provided guidance on employers’ overtime obligations related to the H-2B visa program.

25. USCIS Extends Transitional Parole for Certain CNMI Long-Term Resident Status Applicants – U.S. Citizenship and Immigration Services will automatically extend parole and employment authorization, if applicable, to current parolees who timely applied for Commonwealth of the Northern Mariana Islands long-term resident status and whose applications remain pending on December 30, 2021.

26. E-Verify Consolidates User Profile Screen – The consolidated elements include user profile information, updating/changing a password, and updating/changing password challenge questions and answers.

27. ABIL Global: Italy – The Italian government announced the number of non-European Union workers allowed into Italy.

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 2022

1. USCIS Extends Flexibilities for Responding to Certain Agency Requests

U.S. Citizenship and Immigration Services (USCIS) is extending the flexibilities it originally announced on March 30, 2020, to assist applicants, petitioners, and requestors who are responding to certain requests.

The flexibilities apply if the issuance date listed on the request, notice, or decision is between March 1, 2020, and March 26, 2022, inclusive. USCIS said it will consider a response to such requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

The flexibilities cover responses to Requests for Evidence; Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and 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 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 issuance of a decision USCIS made, and the agency made that decision between November 1, 2021, and March 26, 2022, inclusive.

Details:

USCIS alert, Dec. 30, 2021, https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-0

2. State Dept. Proposes Raising Consular Service Fees for Nonimmigrant and Special Visas

The Department of State (DOS) has proposed raising fees for consular services for several nonimmigrant visa (NIV) application processing fees, the Border Crossing Card (BCC) for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee for certain J exchange visitors. Specifically, the Department proposes:

To increase the non-petition-based NIV fee from $160 to $245 per application. Non-petition-based NIVs include a variety of nonimmigrant visas, such as those for business and tourist travel (B1/B2); students and exchange visitors (F, M, and J); crew and transit visas (C and D); representatives of foreign media (I), and other country-specific visa classes, as well as BCCs for applicants age 15 or older who are citizens of and resident in Mexico.
To increase fees for all petition-based NIVs related to employment in the United States from $190 to $310. Petition-based NIVs include categories for temporary workers and trainees (H); intracompany transferees (L); aliens of extraordinary ability (O); athletes, artists, and entertainers (P); international cultural exchange participants (Q); and religious workers (R).
To increase the E category NIV fee from $205 to $485.
To increase the J waiver fee from $120 to $510.

DOS will accept comments on the proposed rule until February 28, 2022.

Details:

Proposed rule, Dept. of State, 86 Fed. Reg. 74018 (Dec. 29, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-29/pdf/2021-28010.pdf

3. Restrictions on Travelers From Southern African Countries Lifted

Temporary travel restrictions the Biden administration imposed in November on foreign travelers from South Africa and seven other countries in the region, due to the spread of the Omicron variant of COVID-19, were lifted on December 31, 2021, following recommendations from the Centers for Disease Control and Prevention. In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. A related Presidential Proclamation noted, among other things, that “scientific experts have determined that people who are vaccinated against COVID-19 are protected against severe disease and hospitalization from the Omicron variant. Moreover, the Omicron variant has now spread to more than 100 countries, and it is prevalent in the United States.”

People traveling from South Africa and the other seven countries will now need to meet the same requirements as other foreign travelers to the United States: be fully vaccinated and obtain a negative COVID-19 test within a day before their departure to the United States. All travelers, including U.S. citizens, lawful permanent residents, and foreign nationals, must show to the airline documentation of a negative viral test result taken within one day of the flight’s departure before boarding. The CDC recently shortened the testing time period from within three days before travel to within one day.

The Department of State (DOS) noted that the rescission of the travel ban does not necessarily mean that a local U.S. embassy or consulate can immediately schedule all affected applicants for visa interviews. DOS recommended that travelers check the embassy or consulate website for information on what services they are offering and instructions on how to apply for a visa.

Details:

“A Proclamation on Revoking Proclamation 10315,” White House Briefing Room, Dec. 28, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/28/a-proclamation-on-revoking-proclamation-10315/
“Rescission of Travel Restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe,” Dept. of State, Dec. 28, 2021,

4. Certain Healthcare Workers Can Request Expedited Work Permits, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) announced that qualified healthcare workers who have pending employment authorization document (EAD) renewal applications and EADs that will expire in 30 days or less, or that have already expired, can request expedited processing of the EAD application.

Workers should check the related DHS advisory memorandum to determine whether they qualify. Workers requesting expedited processing of their EADs must provide evidence of their profession or current employment as a healthcare workers. To request expedited processing, workers should call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833).

Details:

“How to Make an Expedite Request” (see “Alert: If you are a healthcare worker”), USCIS, https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request
“Advisory Memorandum on Ensuring Essential Critical Infrastructure Workers’ Ability to Work During the COVID-19 Response,” Dept. of Homeland Security, https://www.cisa.gov/sites/default/files/publications/essential_critical_infrastructure_workforce-guidance_v4.1_508.pdf

5. Labor Dept. Issues H-2A FAQ on Wage Disclosure and Calculation Requirements for Agricultural Clearance Orders

The Department of Labor’s Employment and Training Administration (ETA) has released a set of frequently asked questions (FAQ) related to the wage disclosure and calculation requirements for agricultural clearance orders, including in the H-2A temporary labor certification program.

The FAQ reminds State Workforce Agencies that they must check an employer’s piece rate offer, estimated in hourly wage rate equivalents for each activity and unit size, when reviewing the Forms ETA-790A and 790B (collectively referred to as “agricultural clearance orders”) and to clarify related wage disclosure and calculation requirements of these forms for employers.

Details:

ETA announcement, Dec. 29, 2021, https://www.dol.gov/agencies/eta/foreign-labor

6. State Dept. Expands Waivers of In-Person Interviews for Certain Temporary Nonimmigrant Visa Applicants

The Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved by U.S. Citizenship and Immigration Services.

The new authorization applies to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions, including that they are applying for a visa in their country of nationality or residence, the Department of State (DOS) said. In addition, the Secretary extended previously approved policies to waive the visa interview for certain students, professors, research scholars, short-term scholars, and specialists (F, M, and academic J visa applicants) through the end of 2022.

Additionally, the Secretary of State has extended consular officers’ ability to waive the in-person interview through December 31, 2022, for the following other categories of nonimmigrant visas: temporary agricultural and non-agricultural workers (H-2 visas), students (F and M visas), and student exchange visitors (academic J visas).

One change to the previous policy, DOS noted, is that applicants eligible for the waiver authority because they are citizens or nationals of a Visa Waiver Program (VWP) participating country must have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization to qualify.

DOS said it encourages applicants to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview. Embassies and consulates may still require an in-person interview on a case-by-case basis and depending on local conditions, the agency noted.

Details:

“Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas,” Dept. of State, Dec. 23, 2021,
“Expanded Interview Waivers for Certain Nonimmigrant Visa Applicants,” Dept. of State, Media Note, Dec. 23, 2021, https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/
“Limited Operations at U.S. Consulates Keep Visa Holders on Edge,” Roll Call, Dec. 22, 2021, https://www.rollcall.com/2021/12/22/limited-operations-at-us-consulates-keep-visa-holders-on-edge/

7. Restrictions on Travelers From Southern African Countries Lifted December 31

Those traveling from South Africa and the other seven countries now need to meet the same requirements as other foreign travelers to the United States: be fully vaccinated and obtain a negative COVID-19 test within a day of their departure to the United States.

Details:

Tweet from Kevin Munoz, White House Assistant Press Secretary, Dec. 24, 2021, https://twitter.com/kmunoz46

8. For First Time, DHS to Supplement H-2B Cap With Additional Visas in First Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced on December 20, 2021, the forthcoming publication of a joint temporary final rule to make available an additional 20,000 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022, DHS said.

The agency said, “This supplemental cap marks the first time that DHS is making additional
H-2B visas available in the first half of the fiscal year. Earlier this year, USCIS received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.”

The supplemental H-2B visa allocation consists of 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years, DHS noted. The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti and the Northern Triangle countries of Honduras, Guatemala, and El Salvador.

Details:

DHS release, Dec. 20, 2021, https://www.dhs.gov/news/2021/12/20/first-time-dhs-supplement-h-2b-cap-additional-visas-first-half-fiscal-year

9. OFLC Reminds Employers That H-2B Filing Window Started January 1

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers and other stakeholders that the filing window for employers of H-2B workers opened on January 1, 2022, to submit Form ETA-9142B, Application for Temporary Employment Certification, with appendices, requesting work start dates of April 1, 2022, or later. OFLC warned that H-2B applications requesting an April 1, 2022, work start date would be denied if they were filed before January 1, 2022.

OFLC said it would randomly order for processing all H-2B applications requesting a work start date of April 1, 2022, that were filed during the initial three calendar days (January 1-3, 2022) using randomization procedures. Each day, from January 2 through January 4, 2022, OFLC planned to publish on the Foreign Labor Application Gateway System the number of H-2B applications received to date and the total number of requested worker positions on those applications.

Details:

“H-2B Application Filing Timelines for 2022 Peak Filing Season,” OFLC, Dec. 20, 2021, https://www.dol.gov/agencies/eta/foreign-labor/news

10. State Dept. Updates Guidance on F-1, M-1 Student Intent to Depart and Residence Abroad Requirements

The Department of State (DOS) updated its Foreign Affairs Manual (FAM) on intent to depart and residence abroad requirements for F-1 and M-1 students. The guidance may also be useful for J-1 exchange visitors and Afghan scholars.

The guidance states that student visa applicants must possess a present intent to depart the United States at the conclusion of their approved activities, but that such intentions may be subject to, or even likely to, change and that this is not a sufficient reason to deny a visa. Further, the guidance notes, the present intent to depart does not imply a need to return to the country from which they hold a passport; it only means that they must intend to leave the United States upon completion of studies. A student can be considered as maintaining a residence abroad if he or she intends to return to reside with parents or guardians.

The guidance notes that students, who are typically young, are at a phase in life where they are not expected to necessarily have long-range plans or be able to fully explain what their plans are after they finish their studies. The guidance notes that the context of the residence abroad requirement for student visas inherently differs from the context for B visitor or other short-term visas: “It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.”

Details:

9 FAM 402.5-5(E)(1)(U), Residence Abroad Required, https://fam.state.gov/fam/09FAM/09FAM040205.html

11. DHS Withdraws H-1B Selection Final Rule

The Department of Homeland Security (DHS) published a final rule on December 22, 2021, that withdrew the “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” final rule, also known as the H-1B Selection Final Rule, issued January 8, 2021. That rule was vacated by the U.S. District Court for the Northern District of California.

On September 15, 2021, the court in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. March 19, 2021) vacated the H-1B Selection Final Rule. The rule would have changed the way USCIS selects H-1B registrations (or petitions, if registration is suspended) submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

DHS’s action follows a similar final rule from the Department of Labor, effective December 13, 2021.

Details:

DHS alert, Dec. 21, 2021, https://www.uscis.gov/newsroom/alerts/dhs-withdraws-h-1b-selection-final-rule
“Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” 86 Fed. Reg. 72516 (Dec. 22, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-22/pdf/2021-27714.pdf
“Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021),

12. U.S. Passport Fees Rose December 27

The fee for a U.S. passport book increased by $20 on December 27, 2021, the Department of State (DOS) announced, attributing the rise to a need “to ensure we continue to produce one of the most secure travel and identity documents in the world.”

As examples, the fee for renewing a U.S. passport book by mail was $110; as of December 27, that fee rose by 18.2% to $130.

DOS also said it plans to launch its long-awaited online passport renewal system by fall 2022. The system is undergoing pilot-testing by federal employees and contractors. President Biden issued an executive order on December 13, 2021, requiring a system that does not require physical documents to be mailed.

Details:

“Fees for U.S. Passports Are About to Pop Way Up,” Dec. 22, 2021, https://www.cnn.com/travel/article/us-passport-fee-increase/index.html
Tweet from Dept. of State, Dec. 20, 2021, https://twitter.com/TravelGov/status/1472997744600096771
“Apply Early and Save,” Dept. of State, https://travel.state.gov/content/travel/en/passports/how-apply/fees.html
Passport fee chart (current fees before Dec. 27), https://travel.state.gov/content/dam/passports/forms-fees/Passport%20Fees%20Chart_TSG_JAN2021.pdf
Dept. of State fee calculator, https://travel.state.gov/content/travel/en/passports/how-apply/fees/fee-calculator.html
“State Dept. Expects Long-Awaited Online Passport Renewal System to Launch by Fall 2022,” Federal News Network, Dec. 17, 2021,
Executive Order, White House, Dec. 13, 2021,

13. CBP Confirms Lifting of Temporary Travel Restrictions Between the United States and Canada, Mexico

U.S. Customs and Border Protection (CBP) published notices on December 23, 2021, announcing the lifting on November 8, 2021, of temporary restrictions that applied to non-essential travel by fully vaccinated travelers with proof of COVID-19 vaccination status entering via land ports and ferry service along the U.S. borders with Canada and Mexico.

Details:

CBP notice (Canada), 86 Fed. Reg. 72842 (Dec. 23, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-23/pdf/2021-28063.pdf
CBP notice (Mexico), 86 Fed. Reg. 72843 (Dec. 23, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-23/pdf/2021-28064.pdf

14. Immigration Provisions of Social Spending Bill in Limbo as Senate Democrats Struggle With Parliamentarian Rejections, Uncertainties

After the Senate parliamentarian rejected a plan that included work permits and protection from deportation favored by Democrats for inclusion in the “social spending” budget reconciliation bill, lawmakers struggled to consider their options, including revisions to the immigration provisions or simply moving ahead without parliamentarian approval. Several Democratic senators issued a joint statement: “We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act.”

The parliamentarian has not yet addressed other immigration provisions included in the social spending bill, such as green card backlog relief, and their fate remains uncertain.

Details:

“Immigration Loss Leaves Democrats Eyeing Risky Alternatives,” Bloomberg Government, Dec. 17, 2021, https://about.bgov.com/news/immigration-defeat-leaves-democrats-eyeing-risky-alternatives/
“Biden’s Build Back Better Delayed Until 2022, Immigration Reform Rejected in Bill,” U.S. News & World Report, Dec. 17, 2021, https://www.usnews.com/news/politics/articles/2021-12-17/bidens-build-back-better-delayed-until-2022-immigration-reform-rejected-in-bill

15. DHS Extends I-9 Flexibility to April 30, 2022

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility policy in complying with certain physical inspection requirements related to Form I-9, Employment Eligibility Verification. The flexibility policy was set to expire December 31, 2021, but because of ongoing pandemic issues, DHS extended it until April 30, 2022.

DHS said that eligible employees working exclusively in remote settings are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If employees are physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation.

Employers are advised to monitor the DHS and ICE workforce enforcement announcements for updates on ending the extension and resuming normal operations. E-Verify participants who meet the criteria and choose the remote inspection option should continue to follow current guidance and create cases for their new hires within three business days from the date of hire, DHS said.

Details:

ICE Announces Extension to Compliance Flexibility, Dec. 15, 2021, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3

16. USCIS Releases Fourth-Quarter Data Showing Persistent Backlogs, Some Progress

U.S. Citizenship and Immigration Services (USCIS) released fourth-quarter fiscal year (FY) 2021 reports offering a snapshot of statistics for the entire fiscal year. The agency noted:

Employment-based adjustments: USCIS said it faced an unprecedented challenge of processing more than 237,000 employment-based permanent residence (green card) applications—which 122,000 immigrant visa numbers that the Department of State was unable to process in FY 2020 due to COVID-19 pandemic restrictions. By the end of FY 2021, USCIS had approved more than 172,000 employment-based adjustment of status applications, which the agency said was 50% above the typical baseline.
Processing delays: Across the agency, the volume of pending cases increased as well as associated processing times. To address the backlogs, USCIS said it reused biometrics for 2.5 million applicants since March 2020; reduced the number of pending biometrics appointments from 1.4 million in January 2021 to 155,000 as of the end of September; and fully eliminated the “front-log” of cases awaiting intake processing (which was more than 1 million receipts in January 2021 and was eliminated in July) by expanding staffing and overtime at USCIS Lockbox facilities.

The USCIS table below shows approved employment-based petitions awaiting visa availability by preference category and country of birth as of September 2021. The grand total was 438,377, with the most from India at 357,720.

Details:

Immigration and Citizenship Data, USCIS. The data reports are available in downloadable CSV and PDF formats. https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data
“USCIS Announces FY 2021 Accomplishments,” Dec. 16, 2021, https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments

17. State Dept. Changes DV-2022 Document Submission Processing Requirements

The Department of State (DOS) announced that as of December 9, 2021, individuals who were randomly selected to participate in the diversity visa (DV) program for fiscal year (FY) 2022 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 the DS-260 is received for all applicants associated with a case, that case will be eligible to be scheduled for a visa interview.

DOS said that DV-2022 selectees no longer must submit to the KCC any other required supporting documents for DV-2022 to be eligible for an in-person interview at an embassy or consulate. Rather, all supporting documents for DV-2022 selectees will be collected in connection with the interview and evaluated at the embassy or consulate where the visa application is made. DOS said it is treating this as a “pilot program” and will assess the costs and benefits later in the program year.

Details:

DOS update, Dec. 9, 2021, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-2022-update.html

18. Smuggling, Forced Labor Ring Busted in Indictment

Two dozen defendants were indicted on federal conspiracy charges after a transnational, multi-year investigation into an alleged human smuggling and labor trafficking operation that illegally imported agricultural workers from Mexico, Guatemala, and Honduras, fraudulently using the H-2A visa program, and kept them in brutal conditions on Georgia farms, the U.S. Attorney’s Office for the Southern District of Georgia announced.

The newly unsealed, 54-count indictment in USA v. Patricio et al. details felony charges resulting from “Operation Blooming Onion,” an Organized Crime Drug Enforcement Task Forces (OCDETF) investigation. The multi-agency investigation, led by Homeland Security Investigations and other federal agencies, spanned at least three years. The 53-page indictment documents dozens of victims of “modern-day slavery” brought to the United States as contract agricultural laborers.

According to a statement from the U.S. Attorney’s Office, exploitation of the workers included “being required to dig onions with their bare hands, paid 20 cents for each bucket harvested, and threatened with guns and violence to keep them in line. The workers were held in cramped, unsanitary quarters and fenced work camps with little or no food, limited plumbing and without safe water. The conspirators are accused of raping, kidnapping and threatening or attempting to kill some of the workers or their families, and in many cases [the conspirators] sold or traded the workers to other conspirators. At least two of the workers died as a result of workplace conditions.” The perpetrators are alleged to have received more than $200 million from the scheme, which also included money laundering and witness intimidation and tampering.

Details:

“Human Smuggling, Forced Labor Among Allegations in South Georgia Federal Indictment,” U.S. Attorney’s Office, Southern District of Georgia, Nov. 22, 2021, https://www.justice.gov/usao-sdga/pr/human-smuggling-forced-labor-among-allegations-south-georgia-federal-indictment
Indictment: USA v. Patricio et al., https://www.justice.gov/usao-sdga/press-release/file/1450546/download
“Feds Bust ‘Modern-Day Slavery’ Ring Amid New Immigration Enforcement Effort,” NBC News, Dec. 9, 2021, https://www.nbcnews.com/news/us-news/feds-bust-modern-day-slavery-ring-new-effort-immigration-enforcement-rcna8273

19. Labor Dept. Issues Final Rule on Adjudication of H-2A Applications for Temporary and Seasonal Range Workers for Herding and Production of Livestock

Effective January 18, 2022, the Department of Labor (DOL) is amending its regulations regarding the adjudication of temporary need for employers seeking to employ nonimmigrant workers for herding or production of livestock on the range. Consistent with a court-approved settlement agreement, the final rule rescinds a regulatory provision that governed the period of need for such jobs under the H-2A visa classification to ensure that DOL’s adjudication of temporary or seasonal need is conducted in the same manner for all applications for temporary agricultural labor certification.

Specifically, in this final rule, DOL is eliminating a presumptive period of need for employment involving range herding and an absolute restriction on the period of need for employment involving range livestock activities. Instead, all employers applying for H-2A temporary agricultural labor certifications under the final rule must individually demonstrate that their need for workers is temporary or seasonal, regardless of occupation.

Details:

DOL final rule, 86 Fed. Reg. 71373 (Dec. 16, 2021),

20. Labor Dept. Issues 2022 Adverse Effect Wage Rates for H-2A Range, Non-Range Occupations

The Department of Labor published notices with the 2022 Adverse Effect Wage Rates (AEWR) for the employment of temporary or seasonal workers to perform range (herding or production of livestock) and non-range agricultural labor or services.

The AEWR for range occupations is effective January 1, 2022. The notice states that employers of range workers must pay each worker a wage that is at least the highest of the monthly AEWR of $1,807.23, the agreed-upon collective bargaining wage, or the applicable minimum wage.
The AEWR for non-range occupations is effective December 29, 2021. A state-by-state chart shows non-range AEWRs by state, from a low of $11.99 in Alabama to a high of $17.51 in California.

Details:

DOL notice (non-range), 86 Fed. Reg. 71282 (Dec. 15, 2021),

21. Justice Dept. Adjusts Certain Immigration-Related Penalties on Employers

The Department of Justice has adjusted for inflation the civil monetary penalties assessed after December 13, 2021, for violations occurring after November 2, 2015. The adjustments made by the final rule are based on the Bureau of Labor Statistics’ Consumer Price Index for October 2020.

The final rule includes a table showing the old and new penalties. For example:

In 2016, “unlawful employment of aliens, first order (per unauthorized alien)” the penalty was a minimum of $539 to a maximum of $4,313. Now the minimum is $590 and the maximum is $4,722.
For a second such violation, the minimum in 2016 was $4,313 and the maximum was $10,781; now the minimum is $4,722 and the maximum is $11,803.

Details:

DOJ final rule, 86 Fed. Reg. 70740 (Dec. 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-13/pdf/2021-26817.pdf

22. Labor Dept. Implements Court Order Vacating Prevailing Wage Final Rule

The Department of Labor’s Employment and Training Administration (ETA) published a final rule, effective December 13, 2021, implementing a federal district court order vacating a controversial January 14, 2021, final rule that was initially promulgated in October 2020. The rule amended ETA regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based visas or through H-1B, H-1B1, or E-3 nonimmigrant visas.

The new final rule removes the regulatory text that DOL initially promulgated and restores the regulatory text to appear as it did before.

Details:

“Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021),

23. USCIS Temporarily Waives 60-Day Rule for Civil Surgeon Signatures

U.S. Citizenship and Immigration Services (USCIS) is temporarily waiving, until September 30, 2022, the requirement that the civil surgeon sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an applicant files an application for the underlying immigration benefit (including Form I-485, Application to Register Permanent Residence or Adjust Status).

USCIS said this temporary waiver “will help applicants who have been affected by the COVID-19 pandemic and related processing delays, which have sometimes caused delays in completing the immigration medical examination.” The temporary waiver will benefit many applicants, USCIS noted, “including Afghan nationals evacuated under Operation Allies Welcome who have completed immigration medical examinations at government-run facilities but were not able to apply for adjustment of status within 60 days of the completed examination.”

Details:

“Temporary Waiver of ’60-Day Rule’ for Report of Medical Examination and Vaccination Record (Form I-693),” USCIS Policy Alert, Dec. 9, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20211209-I-693FilingReqt.pdf

24. Labor Dept. Provides Guidance on Employers’ H-2B Visa Program Overtime Pay Obligations

The Department of Labor’s Wage and Hour Division (WHD) disseminated a field assistance bulletin on December 7, 2021, providing enforcement guidance on employers’ overtime obligations related to the H-2B visa program.

Among other things, the bulletin notes that the H-2B visa program does not mandate the payment of an overtime premium for hours worked exceeding a certain number in the day, week, or pay period. However, employers participating in the H-2B visa program are required by the Fair Labor Standards Act (FLSA) to pay an overtime premium of not less than one and one-half times the worker’s regular rate of pay for hours worked exceeding 40 hours in a workweek. There are exemptions from the overtime requirements, WHD noted, but these exemptions do not usually apply to industries represented in the H-2B visa program. An employer who is employing workers who are exempt from the FLSA overtime requirements must still comply with any state or local laws requiring overtime pay, WHD said.

Details:

Field Assistance Bulletin No. 2021-3, Wage and Hour Division, U.S. Dept. of Labor, Dec. 7, 2021, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2021_3.pdf

25. USCIS Extends Transitional Parole for Certain CNMI Long-Term Resident Status Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on December 8, 2021, that it will automatically extend parole and employment authorization, if applicable, to current parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status and whose applications remain pending on December 30, 2021.

Parole will be extended without interruption through June 30, 2022, or the date on which USCIS makes a final decision on their Forms I-955, Application for CNMI Long-Term Resident Status, and I-765, Application for Employment Authorization, whichever is earlier.

Details:

USCIS alert, Dec. 8, 2021, https://www.uscis.gov/newsroom/alerts/uscis-extends-transitional-parole-for-cnmi-long-term-resident-status-applicants

26. E-Verify Consolidates User Profile Screen

On December 7, 2021, E-Verify notified users via email that they can now view and complete several actions from a consolidated user profile screen, which “allows users to view all of their account information quickly and easily, without having to navigate to multiple pages.”

The consolidated elements include user profile information, updating/changing a password, and updating/changing password challenge questions and answers.

27. ABIL Global: Italy

The Italian government announced the number of non-European Union (EU) workers allowed into Italy for the year 2021. New quotas are expected to be issued in early 2022.

The government set 69,700 quotas allocated for the year 2021 for different categories of non-EU citizens intending to work in the country:

42,000 were reserved to entries for seasonal work
27,700 were reserved for subordinate work, but only for specific sectors of activity and for certain nationalities
2,000 were reserved to permit conversion for foreign citizens who already possessed a residence permit in Italy or the EU (study, seasonal work, permanent) intending to change status, i.e., to convert the existing permit into a permit for employment/self-employment
500 quotas were for self-employment work (entrepreneurs, start-ups, professionals, well-known artists, chairpersons/CEOs, members of boards of directors, auditors in an Italian company active for at least three years)

Details:

“Italian Government Announces (Late!) the Number of Non-EU Workers Allowed in Italy for 2021,” Mazzeschi, Dec. 24, 2021, https://www.mazzeschi.it/italian-government-announces-late-the-number-of-non-eu-workers-allowed-in-italy-for-2021/

New Publications and Items of Interest

Nonprofit merger announced. New American Economy is merging with the American Immigration Council. The new nonprofit organization will also be called the American Immigration Council. According to a statement released December 6, 2021, “By combining the legal and litigation work, federal policy expertise, and innovative work on belonging from the American Immigration Council with the research, state and local policy work, and arts and culture programming from the New American Economy, the newly combined organization will have a broad suite of advocacy tools to better expand and protect the rights of immigrants, more fully ensure immigrants’ ability to succeed economically, and help make the communities they settle in more welcoming.”

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 (IER), of the Civil Rights Division, 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 has 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/

ABIL Member / Firm News

Charles Kuck (https://www.abil.com/abil-lawyers/charles-kuck/) was quoted by Bloomberg Law in “Skilled Worker Visa Lottery Fraud Suit Survives Dismissal Effort.” Commenting on Liu v. Mayorkas, Mr. Kuck said, “We believed from the beginning that USCIS clearly violated the governing statute in setting up an H-1B lottery that allows for the abuse of submitting multiple applications from different employers with no verification that those offered positions are real. We will now seek a final order from the court forcing USCIS to change the lottery and disallow any such abusive and frivolous findings, thereby giving each applicant a fair chance at these limited number[s] of visas.” (subscription required)

Mr. Kuck was quoted by NBC News in “Feds Bust ‘Modern-Day Slavery’ Ring Amid New Immigration Enforcement Effort.” He said the raid and indictment were both “unusual, when we know that the conditions for workers that they described are not unusual. This is just people getting caught.” He noted that although there are many H-2A employers who follow the rules and do everything right, “there are a lot of bad apples out there.” Mr. Kuck said he thinks “it’s a sign that the [Biden] administration takes seriously the problem of human trafficking and mistreatment of workers that come on visas, and things that may not have been priorities under the prior administration, even though they began the investigation as such.” https://www.nbcnews.com/news/us-news/feds-bust-modern-day-slavery-ring-new-effort-immigration-enforcement-rcna8273

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) authored several new blog postings: “2021 In Perspective From the Insightful Immigration Blog,” http://blog.cyrusmehta.com/2021/12/2021-in-perspective-from-the-insightful-immigration-blog.html; “State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student Nonimmigrant Intent,” http://blog.cyrusmehta.com/2021/12/state-department-holiday-gifts-expanded-interview-waivers-and-student-nonimmigrant-intent.html; and “The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?,”

Greg Siskind, of Siskind Susser, PC, and Mr. Mehta were quoted by Roll Call in “Limited Operations at U.S. Consulates Keep Visa Holders on Edge.” The article was published before the Department of State announced the expansion of interview waivers at consulates. Mr. Siskind said, “People have been afraid to travel because they know that if they leave, and they don’t have a current visa, they could be stuck for months on end, almost indefinitely, without being able to get back into the U.S. I’m still advising people: Don’t travel, unless you’re prepared to be working remotely for a year.” Mr. Mehta said he hoped the Department would extend the renewal-by-mail flexibility: “It’s less burdensome on the consulates and it’s more convenient for applicants who need to travel, and then they don’t have to get stuck. Because people need to travel for all kinds of reasons, and there are emergencies with parents and other family members contracting COVID.” https://www.rollcall.com/2021/12/22/limited-operations-at-us-consulates-keep-visa-holders-on-edge/

Wolfsdorf Rosenthal LLP expanded its northern California practice and appointing two new managing partners. Effective January 1, 2022, attorney Melissa Harms joined the firm in the Bay Area, and at WR’s office in Boston, Massachusetts, Amanda Brown and Miki Matrician are serving as co-managing partners. https://wolfsdorf.com/press-release-wr-immigration-expands-northern-california-practice-appoints-two-new-managing-partners/

Wolfsdorf Rosenthal LLP has published several new blog postings: “”H-1B Cap Season Begins, What to Expect”; “Can a Conditional Green Card Holder Marry a U.S. Citizen and Get a New Green Card in the U.S. Via Adjustment of Status When Investment Fails to Create Sufficient Jobs?”; “Another Failure by the EB-5 Immigrant Investor Program Office”; “EB-5 I-829 Receipt Notices Extended to 24 Months, But Extensions Don’t Go Far Enough”; “E-Verify Update for HR Managers: Final Responses Will Resume on TNCs”; “EB-5 I-829 Receipt Notices Extended to 24 Months, But Extensions Don’t Go Far Enough”; “Frequently Asked Questions on the EB-5 Regional Center Program in December 2021”; “E-Verify Update for HR Managers: Final Responses Will Resume on TNCs”; “U.S. to Impose New Travel Restrictions on Certain African Countries”; and “What Does the December 2021 Visa Bulletin Mean for New ‘Direct’ EB-5 Investors?.” https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by several Brazilian newspapers about President Biden’s immigration reform plans. As an example, Mr. Yale-Loehr was quoted by Diario do Grande ABC Internacional in “Biden Faces Pressure From Companies to Reform Immigration System.” Mr. Yale-Loehr said, “Companies cannot remain competitive in a global economy or meet consumer demand if they cannot hire and retain the workers they need. This is especially true given the current labor shortages and pandemic delays in visa applications and renewals.” https://www.dgabc.com.br/Noticia/3823241/biden-enfrenta-pressao-de-empresas-para-reformar-sistema-imigratorio (in Portuguese, with English translation available)

Mr. Yale-Loehr was quoted by Marketplace in “Will Employers Need Newly Available Seasonal Visas?.” Mr. Yale-Loehr said the additional H-2B visas could help the labor shortage a little. ” ‘A little bit’ is the operative word, you know. An additional 20,000 visas is not a lot, in the greater scheme of things.” https://www.marketplace.org/2021/12/21/will-employers-need-newly-available-seasonal-visas/

Mr. Yale-Loehr was quoted by Politico Magazine in “Biden’s H-1B Conundrum: The Administration’s Efforts to Reform the Visa Program Could Put Him at Loggerheads With Key Factions of His Own Party.” Mr. Yale-Loehr said the Biden administration has been trying to navigate a “political conundrum for the administration.” https://www.politico.com/news/magazine/2021/12/19/biden-h-1b-visa-conundrum-524254

Mr. Yale-Loehr was quoted by Die Zeit in “USA: Texas Begins Building Its Own Wall.” Mr. Yale-Loehr said, “Although states can do certain things about immigration under state law, putting up barriers along the border or arresting migrants is, in my opinion, beyond what is permitted.” https://www.zeit.de/politik/ausland/2021-12/usa-mexiko-texas-mauer-grenze (in German with English translation available)

Mr. Yale-Loehr was quoted by Univision in “Rejection of ‘Plan C’ Complicates Immigration Reform in Congress: What Path Could Democrats Take Now?” Mr. Yale-Loehr noted that the budget bill passed by the House of Representatives included important immigration provisions, “including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States.” He said the bill would also give the Department of Homeland Security “$2.8 billion to help process immigration applications and reduce backlogs in case processing…and would recover employment- and family-based green cards that have not been used and that otherwise would expire at the end of each year.” https://www.univision.com/noticias/inmigracion/rechazo-parlamentarian-plan-c-complica-reforma-migratoria-estas-son-las-claves (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by Voice of America (Russia) in “Migrants at the Border: You Can’t Stay Running.” He said, “The measures taken by the Biden administration have been blocked by federal courts, so in the short term it needs to comply with the decisions. The White House may try to come up with a different approach, but I’m sure that any of them will be challenged again in federal courts by Texas and other conservative states. The administration is between a rock and a hard place, trying to be more humane. Texas and other conservative states will not allow anything but the ‘Stay in Mexico’ policy. This is a crisis that has long been growing; it cannot be solved overnight. It is necessary to improve the economy and living conditions in Central America so that people do not suffer from the terrible poverty that forces them to leave. Something needs to be done about gangs in Central America. We must try to eradicate corruption so that people feel safer. And we need to fight climate change so that farmers in Central America can grow crops and feed their families. Migration is an issue for every country in the world. To some extent, the United States has been isolated from it for a long time. Now we face the same problems that other countries have faced for decades.” https://www.golosameriki.com/a/us-mexico-immigration-court/6354802.html (in Russian, with English translation available)

Mr. Yale-Loehr authored an op-ed published in The Hill, “With This Immigration Fix, Employers Can Hire the Workers They Need.” https://thehill.com/opinion/immigration/585322-with-this-immigration-fix-employers-can-hire-the-workers-they-need

Mr. Yale-Loehr was quoted by Bloomberg Tax in “Immigration Agency in Line for Billions in Fees in Spending Bill.” He noted that if the Senate passes the social spending bill, the question will become how quickly USCIS can make the necessary investments with the revenue boost to adjudicate the rush of new applications. “A lot will depend on how quickly the agency can ramp up,” he said. https://news.bloombergtax.com/payroll/immigration-agency-in-line-for-billions-in-fees-in-spending-bill

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

ABIL Global Update • February 2021

February 01, 2021/in Global Immigration Update /by ABIL

In this issue:

1. SELF-EMPLOYMENT AND IMMIGRATION IN ITALY: AN OVERVIEW – This article provides an overview of self-employment issues related to immigration in Italy.

2. BELGIUM – A change in legislation is consequential for European Union/Schengen travel to Belgium.

3. ITALY – Residence permit validity has been extended to April 30, 2021. Also, there is a new residence permit requirement for British citizens living in Italy, and travel to Italy from the United Kingdom is banned, with exceptions, until March 5, 2021.

4. RUSSIA – Air traffic has resumed with several countries. Also, family members of highly qualified specialists are being admitted to Russia, subject to certain conditions. Russia extended COVID-19 measures until June 15, 2021.

5. UNITED KINGDOM – This article provides an update on issues for European Union citizens to consider in light of Brexit.

6. New Publications and Items of Interest – New Publications and Items of Interest

7. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – February 2021

1. SELF-EMPLOYMENT AND IMMIGRATION IN ITALY: AN OVERVIEW

This article provides an overview of self-employment issues related to immigration in Italy.

Italy

The type and number of self-employment (Lavoro Autonomo) authorizations available to non-European Union (EU) nationals in Italy are set by a quota decree (decreto-flussi). Not all self-employment categories are available each year.

To qualify, the self-employed person must:

Have suitable accommodation in Italy;
Have financial resources exceeding the minimum level set by the law for exemption from the healthcare contribution (8,500 euros);
Obtain a police clearance (Nulla Osta) in Italy;
Have certificates, documents, or attestations as required for the type of self-employment activity to be performed. Applicants must meet the legal requirements for performance of the activity, including, when required, prerequisites for entering into professional registers.

Some categories of self-employment visas are issued outside the quota decree (e.g., translators and interpreters, university professors, lecturers, managers in an intra-company framework).

Details:

“Italy Self-Employment Visa,” Mazzeschi, https://www.mazzeschi.it/italy-self-employment-visa/
“Self-Employment Visa for Entrepreneurs Intending to Implement an Investment Plan in Italy,” Mazzeschi, https://www.mazzeschi.it/self-employment-visa-for-entrepreneurs-intending-to-implement-an-investment-plan-in-italy/

2. BELGIUM

A change in legislation is consequential for European Union (EU)/Schengen travel to Belgium.

A change in legislation, published in the Belgian Official Journal on January 26, 2020, and effective January 27, 2021, will have substantial consequences for EU/Schengen travel to Belgium.Between January 27, 2021, and March 1, 2021, all non-essential travel is forbidden for all those whose main place of residence is located abroad. This does not change the situation for travel from most third countries, which was already limited to non-essential travel. However, the EU/Schengen travel restriction is new. Third countries are defined as non-EU/non-Schengen countries.The definition of essential travel and the required formalities depend on the country of origin and/or citizenship:· Travel from a third country, other than “safe” third countries (currently Australia, South Korea, Japan, New Zealand, Rwanda, Singapore, and Thailand), by a third country national with main residence in the third country (e.g., United States, Canada, India): An overview of essential travels is available at the website of the Belgian federal immigration office (point 2.2., https://dofi.ibz.be/sites/dvzoe/EN/Pages/International%20travels.aspx). An essential travel certificate, issued by the Belgian embassy/consulate with jurisdiction, will in principle be required. Before the traveler boards, the transporter must check whether an essential travel certificate is available. If not, boarding must be refused.· All other travels by non-residents (e.g., travel from an EU/Schengen country; travel from a “safe” third country (see list above); travel by an EU/Schengen country national): A sworn statement must be completed by the traveler (see https://d34j62pglfm3rr.cloudfront.net/downloads/20210126_BU_Verklaring_op_eer_Finaal_EN_Goedgekeurd_Blanco.pdf). The sworn statement lists all essential travels; the relevant travel purpose must be selected (see also the website of the Belgian federal immigration office—point 2.1., https://dofi.ibz.be/sites/dvzoe/EN/Pages/International%20travels.aspx). Before the traveler boards, the transporter must check whether a sworn statement was completed. If not, boarding must be refused. Failure to make a sworn statement or making a false, misleading, or incomplete statement may result in denial of entry.These travel restrictions have been added to other current measures, such as the requirements to complete a Public Health Passenger Locator Form (PLF), a prior negative Covid-19 test, and quarantine/isolation/testing in Belgium.

3. ITALY

Residence permit validity has been extended to April 30, 2021. Also, there is a new residence permit requirement for British citizens living in Italy, and travel to Italy from the United Kingdom is banned, with exceptions, until March 5, 2021.

Residence Permit Validity Extended

By Law Decree no. 2 of December 14, 2020, the validity of residence permits has been extended to April 30, 2021. The decree also extends the validity of Nulla Osta (police entry clearances for family reasons, work permits) for the same period and the terms for conversion of study permits into work permits.

New Residence Permit Requirement for British Citizens in Italy

As of January 1, 2021, British citizens and their family members residing in Italy must apply for a residence permit in electronic format at the police headquarters (Questura) having jurisdiction over their place of residence in Italy.

The new document will indicate that it is issued on the basis of the Withdrawal Agreement (under Brexit) and will allow the holder to exercise the rights recognized by the Agreement. The document will be valid for 5 years (or 10 years if the applicant has acquired the right of permanent residence after 5 years of legal and continuous stay). To apply for the document, applicants should book an appointment with the relevant police office and submit the Attestazione di iscrizione Anagrafica previously obtained from the City Council of the place of residence.

Travel Restrictions on UK Citizens Entering Italy

Meanwhile, as of press time, Italy has banned travel from the United Kingdom (UK) in response to the spread of a new mutant strain of COVID-19. Until March 5, 2021, entry into Italy from the UK is permitted only for those with official residence or those with absolute necessity, which must be declared in writing. Also, those wishing to fly must present the airline with a negative COVID-19 rapid antigenic or molecular swab test taken within 72 hours before entry into Italy. Another such test is required within 48 hours of entering Italy. Those arriving by air will take this test at the airport. Those arriving in Italy from the UK must also report to their local health authorities on arrival and self-isolate for 14 days.

For more information or help in specific cases, email [email protected].

Details:

Information on the new residence permit requirement for British citizens in Italy, https://www.interno.gov.it/it/vademecum-i-cittadini-britannici-e-i-loro-familiari-residenti-italia (Italian, with the option to translate to English)
Living in Italy (official information for United Kingdom nationals living in or moving to Italy, including guidance on residence requirements, healthcare, and passports), https://www.gov.uk/guidance/living-in-italy
Information on travel to Italy for UK citizens, https://www.gov.uk/foreign-travel-advice/italy

4. RUSSIA

Air traffic has resumed with several countries. Also, family members of highly qualified specialists are being admitted to Russia, subject to certain conditions. Russia extended COVID-19 measures until June 15, 2021.

Air Travel Resumes

As of January 27, 2021, air traffic has resumed with Finland, Vietnam, India, and Qatar. At the moment, in addition, air traffic is open between Russia and Abkhazia, Belarus, Cuba, Egypt, Ethiopia, Greece, Japan, Kazakhstan, Kyrgyzstan, Maldives, Republic of Korea, Republic of South Ossetia, Serbia, Seychelles, Singapore, Switzerland, Tanzania, Turkey, United Arab Emirates, and the United Kingdom. As of February 15, 2021, air traffic will resume with Azerbaijan and Armenia.

Details on flights include:

Greece (Moscow-Athens, two flights a week)
Finland (Moscow-Helsinki, twice a week; St. Petersburg-Helsinki, twice a week)
India (Moscow-Delhi, twice a week)
Qatar (Moscow-Doha, three times a week)
Singapore (Moscow-Singapore, three flights a week)
Vietnam (Moscow-Hanoi, twice a week)

The United Kingdom is suspended until February 16, 2021, due to identification of a new strain of the COVID-19 coronavirus in Britain.

The situation could change at any time, so travelers should monitor the latest news before traveling to a particular country.

Family Members of Highly Qualified Specialists Admitted

A government order is allowing a single entry into the Russian Federation for family members of foreign nationals in Russia on work permits for highly qualified specialists (HQS). Family members include spouses, parents, children, adoptive parents, and adopted children.

To qualify, a foreign national must be on a list sent to the Federal Security Service and the Internal Affairs Ministry by the relevant Ministry. The employer of the HQS work permit holder should apply to the Ministry. Also required is a medical document (in Russian and/or English) confirming a negative COVID-19 test, done by the PCR method, within three calendar days before entry into the Russian Federation.

COVID-19 Measures Extended

Russia has extended until June 15, 2021, measures regulating the status of foreign citizens and stateless persons related to the COVID-19 pandemic. Foreigners meeting certain qualifications can stay in Russia until that date, provided the expiration of their immigration documents fell between March 15, 2020, and December 15, 2020.

The extension applies to visas (all types), address registrations, migration cards, temporary and permanent residence permits, and documents confirming refugee status, among others.

If the expiration date of the immigration document falls between March 15, 2020, and June 15, 2021, the document’s validity is automatically extended for 458 days after the document expiration date. This applies only to citizens (permanent residents) of other countries with which transport communications (e.g., air travel) have not yet been restored. If transport communication with the country of citizenship or permanent residence has been restored, the foreign national has 90 days from either the date of the Presidential Order, December 17, 2020, or from the date when transport communications were restored, to depart from the Russian Federation. No additional immigration documents will be needed in such cases.

The order does not apply to work permits or patents. Holders of such immigration documents and their employers must file for an extension in the standard manner.

Details:

“Russia Resumes Air Service With Finland, Vietnam, India, and Qatar,” http://government.ru/news/41340/ (Russian; translation to English available on the page)
“Russia Extends Suspension of Air Traffic With Britain,” http://government.ru/en/docs/41300/ (Russian; translation to English available on the page)

5. UNITED KINGDOM

This article provides an update on issues for European Union citizens to consider in light of Brexit.

Issues for EU Citizens to Consider

European Union (EU) (and European Economic Area and Swiss) citizens who have already been resident in the United Kingdom (UK) are expecting no major issues after the Brexit transition period ended on December 31, 2020. So long as they were resident by the end of 2020, they can apply to the EU Settlement Scheme before the deadline of June 30, 2021. But there are several issues to be aware of regarding absences from the UK for those with pre-settled status and those relying on permanent residence to naturalize as British citizens.

Absences for those with pre-settled status. EU citizens who have pre-settled status must apply for settled status after 5 years in the UK. Pre-settled status is not extendable, so it is important that the residence requirements be met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker. Those with pre-settled status should not be absent for more than 6 months in any 12-month period. A single period of absence of up to 12 months is permitted for an “important” reason, which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training, or an overseas posting.

Given the circumstances, the obvious question is why absences due to the COVID-19 pandemic have not been included in the EU Settlement Scheme rules and guidance. Elsewhere in the rules, absences due to the pandemic have been covered. For example, travel disruption due to the pandemic because there were no available flights or the visa application centers were closed has been a ground for absences above the usual threshold to be allowable on an exceptional basis where they can be evidenced.

The Home Office has advised that absences over 6 months for those with pre-settled status could be permitted on a discretionary basis if:

The EU citizen, or a person with whom they are living, is suffering from COVID-19 and they are either too ill to travel or forcibly in quarantine for public health reasons; or
There were no available flights to the UK and in essence the individual has been stranded overseas.

A general reluctance to return to the UK is not expected to be sufficient. As a result of this policy, EU citizens with pre-settled status who have had or may shortly have absences of more than 6 months in a 12-month period that are not very clearly for an important reason must consider:

Traveling to the UK before they reach 6 months of absence from the UK; or
Reapplying from outside the UK for pre-settled status before they reach 6 months of absence; or

Relying on permanent residence for naturalization. EU citizens who have been granted a permanent residence document under EU law (not from the EU Settlement Scheme) and who have held permanent residence for 12 months can normally apply to naturalize as a British citizen. Plus, some applicants’ permanent residence will be backdated, meaning they can apply to naturalize right away.

EU citizens should be aware, though, of a rule change as of January 1, 2021. For applications submitted in the new year:

If the applicant only has a permanent residence document and does not have settled status, they can continue to rely on the permanent residence document for a naturalization application. They should ensure that they do not become an overstayer on July 1, 2021, by applying for settled status (from the EU Settlement Scheme) before that date if their naturalization application remains outstanding; and
If, on the other hand, the applicant has both a permanent residence document and settled status, as of January 1, 2021, they cannot rely on the permanent residence document and instead must wait until they have held settled status for 12 months.

Details:

New UK immigration system FAQs, https://www.kingsleynapley.co.uk/services/department/immigration/the-uks-new-immigration-system-what-you-need-to-know

6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

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

7. ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) and Vic Goel (bio: https://www.abil.com/lawyers/lawyers-goel.cfm?c=US) were quoted by Forbes in “Ending Unlawful Trump H-1B Visa Policies Caused Denials to Plummet.” Mr. Goel said the lower H-1B denial rates seen in the fourth quarter of FY 2020 have continued into the first quarter of FY 2021. “Following the decision and settlement in the ITServe Alliance case that caused the rescission of the [USCIS] 2010 and 2018 memos, H-1B approval rates improved substantially,” he said. Ms. Butte noted that she observed a much lower rate of denials and fewer Requests for Evidence in late FY 2020. https://www.forbes.com/sites/stuartanderson/2021/01/28/ending-unlawful-trump-h-1b-visa-policies-caused-denials-to-plummet/?sh=69ff467f6211 (subscription)

Ms. Butte was quoted by Forbes in “Pardons May Have Revealed Insincerity of Trump Immigration Policies.” Mr. Goel and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) also contributed to the article. Ms. Butte said, “The Trump administration failed to show that employment-based immigration programs had statistically significant levels of fraud. From the data presently available it does not appear the levels are any higher than they were when the Bush administration created the Fraud Detection and National Security Directorate for employment-based immigration. The Trump changes in policy increased costs for employers who needed the talent and desperately wanted to follow the rules to get it. It also created anxiety and harmed the workers who wanted to earn a living and contribute to the U.S. economy. Trump administration policies didn’t prevent fraud but discouraged employers and workers from participating in these immigration categories, given the barriers to entry and continued participation. That seems to have been the real purpose of these initiatives.” https://www.forbes.com/sites/stuartanderson/2021/01/25/pardons-may-have-revealed-insincerity-of-trump-immigration-policies/?sh=6eb00cd550d1 (subscription)

Klasko Immigration Law Partners, LLP, has released several new podcast episodes in its series, Statutes of Liberty.

Klasko Immigration Law Partners, LLP, published a blog posting: “How to Work in the U.S.: A Brief Guide to Employment Based Immigration.” https://www.klaskolaw.com/h-1b-employment/how-to-work-in-the-u-s-a-brief-guide-to-u-s-employment-based-immigration/

William Stock, Elise Fialkowski, and Michele Madera of Klasko Immigration Law Partners, LLP, presented the 2021 H-1B cap season essentials and latest developments for U.S. employers and their sponsored employees on January 27, 2021, in “2021 H-1B Lottery: Preparing for a New Administration.” (recording, available by registration)

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) is co-counsel for a putative class of U.S. visa holders and applicants, including high-skilled and extraordinary ability, who asked a California federal judge to order U.S. government officials to resume employment-based visa processing. Mr. Kuck said that by sustaining former President Trump’s proclamation to halt visa processing for many immigrants, “you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States.” Characterizing the Trump administration’s efforts as “king-like enforcement of a royal decree,” Mr. Kuck said Mr. Trump “used a health crisis to carry out an illegitimate, nativist agenda.” https://www.law360.com/immigration/articles/1347823/visa-seekers-ask-judge-to-halt-trump-s-nativist-agenda-

Mr. Kuck and Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) were quoted by the Times of India in “U.S. Agency Issues Final Wage Rules for H-1Bs and Green Card Holders, Higher Wages to Apply in a Phased Manner.” Mr. Kuck said, “We will be amending our lawsuit to seek to enjoin this lame attempt to fix its prior illegal regulation. We remain confident that this regulation will never see the light of day as written.” Mr. Mehta said, “The new rule acknowledges that an abrupt transition to the new wage levels could be disruptive to the economy and detrimental to U.S. employers, so the DOL will gradually introduce the new wages over a period of a year and a half, with the first increase set to take place on July 1, 2021. In addition, for H-1B workers who were the beneficiaries of approved I-140 applications (for green cards) as of October 8, 2021 and are caught in the backlogs, the phase-in period for the increased wages is extended over a three and a half year period.” He also said, “Despite the phase-in, the increased wages will be artificial and will not be consistent with market wages, and the new rule is a continuation of the nonsensical wage rule that was previously blocked by the courts. I expect this rule to be challenged too as there is no basis in [immigration law] to calculate prevailing wages to such high levels as the DOL has done. Prevailing wages must reflect the market wages that are ordinarily paid to U.S. workers in the same occupation.”

Mr. Kuck was quoted by Law360 in “Visa Seekers Ask Judge To Halt Trump’s ‘Nativist Agenda.’ ” Mr. Kuck, co-counsel for a putative class of U.S. visa holders and applicants, told a U.S. district judge during a preliminary injunction hearing, “By sustaining this proclamation further, you simply allow the prior administration to carry out what we believe to be an unlawful stopping of legal immigration to the United States. The ex-president used a health crisis to carry out an illegitimate, nativist agenda.” https://www.law360.com/immigration/articles/1347823/visa-seekers-ask-judge-to-halt-trump-s-nativist-agenda- (registration required)

Mazzeschi SRL, a leading Italian immigration company, has opened a new representative office in Tokyo to enhance its presence in Japan and boost support for its clients’ Japan-Italy projects. Yayoi Ashikaga is the new representative in Japan. The Japan Desk, mostly operating in Milan, offers customized services to the Japanese market and is managed by Dr. Yuu Shibata. The Japan Desk is active in providing information on strategic topics on doing business in Italy, especially from a legal perspective. Mazzeschi SRL publishes monthly articles on an online business platform called “Bizbuddy.” https://www.mazzeschi.it/japan-desk-eng/

Mr. Mehta was quoted by the Tennessee Tribune in “Biden Starts to Unwind Trump Rules and Advocates Are Happy.” Mr. Mehta said, “For example, if somebody has been sponsored on an H-1B visa and the employer files for a green card on behalf of a person born in India, it would take several decades before that person gets a green card.” He said that in the family categories, it could take 10 to 20 years for family members of U.S. citizens to immigrate. “It’s ridiculous. That’s not the way Congress intended it to be when the last reform with immigration numbers happened in the 1990 Act. They were thinking that 2- to 3-year waits would be too long but now we have waits that stretch into several decades.” https://tntribune.com/biden-starts-to-unwind-trump-rules-and-advocates-are-happy/

Mr. Mehta chaired several recent events:

“Basic Immigration Law 2021: Business, Family, Naturalization and Related Areas,” Practising Law Institute, Feb. 4, 2021 (webcast), https://www.pli.edu/programs/basic-immigration-law
“Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2021,” Practising Law Institute, Feb. 5, 2021 (webcast), https://www.pli.edu/programs/asylum-juvenile-immigration-relief

Mr. Mehta was featured and quoted by India West in “Immigration Advocates Cheer as President Biden Launches Bold Initiatives for Immigration Reform.” Mr. Mehta said, “The numbers of green cards allotted each year are woefully inadequate.” He added that the wait could be lessened by eliminating the per-country cap that currently allots only 7 percent of all employment-based visas per year. India, for example, “gets less than 10,000 green cards per year, while 800,000 wait in the queue,” he said

Mr. Mehta and Greg Siskind, of Siskind Susser, P.C., were quoted by the Economic Times in “Joe Biden Revokes Buy American, Hire American Order, Eases Path to H-1B.” Mr. Mehta said, “The BAHA policy gave justification to immigration officers to deny H-1B and L-1A petitions in the name of protecting American workers. Since the BAHA policy came from the President, officers felt incentivized to find ways to deny these petitions even when they were otherwise meritorious.” Mr. Siskind said, “I think the revocation of that memo will have an impact, though it’s not easy to quantify. BAHA essentially was a mandate to change the culture of welcoming immigrants to treating them as a threat to the U.S. Ending BAHA will hopefully be the beginning of restoring that. Another cultural change at the agency was changing USCIS’ mission statement by removing ‘welcoming immigrants’ language. Hopefully, as soon as we have Biden’s appointed USCIS Director confirmed, that will also change.” https://economictimes.indiatimes.com/nri/work/biden-revokes-buy-american-hire-american-order/articleshow/80653866.cms?from=mdr

Mr. Mehta spoke at “President Biden’s Bold Immigration Plan: What Can Immigrants Expect?” The briefing was sponsored by Ethnic Media Services. Link to broadcast (video): https://drive.google.com/file/d/1ZZAbwMtXL4ZGQS0-8x8gwE1gP9fgZWzV/view

Mr. Mehta spoke at an American Immigration Lawyers Association seminar, “Preparing for
H-1B Cap Season 2021,” on January 26, 2021. https://agora.aila.org/Conference/Detail/1848

Mr. Mehta has authored a new blog posting: “The Rescission of Trump’s Buy American Hire American Will Benefit Immigrants and America.” http://blog.cyrusmehta.com/2021/01/the-rescission-of-trumps-buy-american-hire-american-will-benefit-immigrants-and-america.html

Mr. Mehta‘s blog, “President Biden Ushers in New Hope on Immigration After Trump’s Destructive and Xenophobic Four Years,” was included in LexBlog’s Top 10 in Law Blogs. Top 10 list: https://www.lexblog.com/2021/01/29/top-10-in-law-blogs-tesla-law-suit-climate-change-inaction-investor-fraud/. Mr. Mehta’s blog, co-authored with Kaitlyn Box: https://www.lexblog.com/2021/01/25/president-biden-ushers-in-new-hope-on-immigration-after-trumps-destructive-and-xenophobic-four-years/

Mr. Mehta spoke on a panel, “Ethical Issues in Pro Bono Representation 2020,” under the aegis of the Practising Law Institute on December 10, 2020. The program highlighted ethical issues arising in pro bono representation across different legal disciplines. Mr. Mehta spoke about ethical issues arising in immigration pro bono practice with an emphasis on additional challenges that have arisen for immigration practitioners during the COVID-19 pandemic. https://www.pli.edu/programs/ethical-issues-in-pro-bono-representation

Mr. Mehta was quoted by the Times of India in “White House Freezes Recent Draconian Immigration Rules. Mr. Mehta said, “As the H-1B rule that sought to replace the lottery system with one based on wages will be frozen for 60 days, it probably will not impact the upcoming H-1B lottery process.” https://timesofindia.indiatimes.com/world/us/white-house-freezes-recent-draconian-immigration-rules/articleshow/80387530.cms

Mr. Mehta was quoted by the Economic Times in “U.S. Pulls H-1B Rule Tweak That Vexed Technology Cos” on whether the midnight rules promulgated under the Trump administration will survive as well as how proposed immigration legislation proposed by the Biden administration will affect Indians. Referring to a ban on issuing new H-1B visas that is still in place, Mr. Mehta said, “During that 60-day pause, the administration can issue a new rule to rescind the old rule or such a pause would give more time to challenge those rules in court if the Biden administration decides to go along with them. I can see the Biden administration being sympathetic towards the Department of Labor wage rule that increases the wage requirement to be paid to H-1B workers.”

Mr. Mehta and William Stock, of Klasko Immigration Law Partners, LLP, were quoted by Forbes in “DHS and DOL Team Up on H-1B Visas Against IT Services Companies.” Mr. Mehta said he believes both the DOL memo and the DHS rule could be legally vulnerable due to the Supreme Court’s opinion in Kisor v. Wilkie. “While the need for a ‘secondary employer’ to file an H-1B petition was suggested in the preamble to the DHS rule, it is not stated in the actual rule, which essentially defines the employer but does not include any definition of ‘secondary employer’ and the need to file an H-1B petition. DOL’s interpretation of its rule can also be similarly challenged under Kisor. Agencies no longer have unbridled discretion to interpret their own regulations under Auer v. Robbins. If the new interpretation of the ambiguous rule has never been the authoritative position of the DHS and DOL, and it has taken stakeholders by unfair surprise, it should be held to be an unreasonable interpretation under Kisor.” Mr. Mehta said the regulation is also vulnerable “because this is not a de minimis change at all. Through sleight of hand, both DHS and DOL have used the expanded definition, which they term innocuous, to deem client companies as employers and force them to file LCAs and H-1B petitions when they do not pay the wages or have no direct knowledge of the wages paid or other details required under the LCA. This would also interfere in contractual relations and force the vendor to divulge confidential data.” Mr. Stock called it “astounding chutzpah” for DHS to claim a “good cause” exception to the normal rulemaking process and to argue its rule won’t be of any consequence. “It is likely the rule will be struck on both grounds,” he said, adding that it was a “stretch” for DHS to argue that it can accept comments on an invalidly promulgated interim rule from October 2020 and go directly to a final rule, particularly because Chad Wolf’s appointment to serve as acting DHS secretary was ruled unlawful by several courts. https://www.forbes.com/sites/stuartanderson/2021/01/18/dhs-and-dol-team-up-on-h-1b-visas-against-it-services-companies/?sh=417c765547e9

Mr. Mehta’s views on the Department of Justice complaint accusing Facebook of citizenship discrimination are reflected in a Bloomberg Law article, “Facebook Suit by U.S. Augurs Green Card Sponsor Chill.” Mr. Mehta said, “This lawsuit could create a chilling effect on the labor certification program that employers use to sponsor skilled foreign worker nationals. If an employer scrupulously follows the Labor Department’s complex rules governing the labor certification process, the employer could still be penalized by another branch of the federal government, based on this complaint. … You can’t just have them as guest workers and then throw them out after a few years. This lawsuit could create a chilling effect on the labor certification program that employers use to sponsor skilled foreign worker nationals.” https://news.bloomberglaw.com/daily-labor-report/dojs-facebook-allegations-risk-chilling-green-card-sponsorship?context=search&index=0

Mr. Mehta co-authored several new blog entries: “Top Ten Most Viewed Posts on the Insightful Immigration Blog in 2020,” http://blog.cyrusmehta.com/2020/12/top-ten-most-viewed-posts-on-the-insightful-immigration-blog-in-2020.html; “Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump,” http://blog.cyrusmehta.com/2021/01/extending-the-immigrant-and-nonimmigrant-visa-bans-the-last-gasps-of-212f-jurisprudence-under-trump.html; “Trump’s Final Attacks on H-1B Visas and Legal Immigration: Reintroduction of the Wage Rule and Rule Requiring Client Companies to File H-1B Petitions,”

Mr. Mehta and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) were quoted by the Times of India in “U.S. Extends Ban on H-1B, L-1 Till March.” Mr. Mehta said the visa ban extension contradicts its rationale to protect U.S. jobs after President Trump’s recent claim that the unemployment rate is below 6.7%. “It is Trump’s last gasp to hurt immigration that benefits the U.S. as the skilled workers impacted promote economic recovery. Although the ban was enjoined by the court in NAM (National Association of Manufacturers) v Trump, that ruling was limited to the plaintiff organizations that brought the suit. Therefore, the extension will still be effective on others.” Mr. Yale-Loehr said that “[b]arring temporary foreign workers from entering the country was a mistake in June. It remains a mistake today.” https://timesofindia.indiatimes.com/business/international-business/us-extends-ban-on-h-1b-l-1-till-march/articleshow/80068643.cms

Mr. Mehta was quoted by Bloomberg Law in “Trump’s Executive Orders on Immigration Could Be Tough to Undo.” Those who support President Trump’s policies could argue that potential harm could ensue from President-elect Biden’s future executive actions, such as to U.S. workers, Mr. Mehta noted. He also commented on a recent Ninth Circuit decision that he noted could give the President more latitude to overturn previous actions. https://news.bloomberglaw.com/daily-labor-report/trumps-executive-orders-on-immigration-could-be-tough-to-undo

Mr. Mehta’s views on the DOL wage rule are reflected in an India West article, “Labor Department Raises Mandatory Wages for H-1B Workers.” He said, “They [DOL] have skewed prevailing wages and artificially inflated them so that employers will have to pay higher than market wages.” As an example, Mr. Mehta said the pay hike for entry-level workers was “an unjustified entry-level wage.”

Mr. Mehta was quoted by the Times of India in “Trump Admin Fires Again: Customers of IT Service Companies to Meet H-1B Filing & Other Obligations Under New Rule.” He said, “This Trump rule, issued in the waning days of a failed presidency, has been designed to kill the India heritage IT industry. However, it will also hurt corporate America that relies on this IT industry to keep humming away and remain competitive in the global economy. The change will also do significant harm to other sectors as well that involve third-party placements, including nursing, consulting, audit, [and] engineering services, among many others.”

Mr. Mehta co-authored a blog post with Kaitlyn Box that was heavily cited in an article in India West, on the Ninth Circuit Court of Appeals ruling that recognized the occupation of computer programmer as a specialty occupation. “In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the [Occupational Outlook Handbook] may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions,” he said

Mr. Mehta; Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm); Greg Siskind, of Siskind Susser, PC; William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US); and Mr. Yale-Loehr contributed recommendations to “Deregulating Legal Immigration: A Blueprint for Agency Action,” published by the Cato Institute. The article presents 30 deregulatory proposals by 15 authors for consideration by the Biden administration. The proposals focus on agency measures to improve the process for legal immigrants. The Cato article is at https://www.cato.org/publications/study/deregulating-legal-immigration-blueprint-agency-action. A related op-ed, “Leading Legal Experts Urge Aggressive Immigration Actions,” published by The Hill, is at https://thehill.com/blogs/congress-blog/politics/530948-leading-legal-experts-urge-aggressive-immigration-actions.

Mr. Mehta’s views on the court victory in favor of computer programmers under the H-1B visa are reflected in “Big Win! U.S. Appeals Court Rules in Favour of Grant of H-1B Visas to Computer Programmers,” Times of India, https://bit.ly/34v7rr8

Mr. Mehta’s weekly articles, along with the articles of other lawyers in his firm, were noted in this ILW editorial, https://discuss.ilw.com/articles/recent-issues/396807-dec-1-cyrus-mehta-articles

Mr. Mehta and Kaitlyn Box co-authored several new blog postings: “Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa,” https://bit.ly/3h4Cor7; and “Two New York Ethics Opinions Instruct When Lawyers Can Withdraw from Representing a Client in Court During COVID-19,” https://bit.ly/3aoIXDH Mr. Mehta was interviewed by Nikhila Natarajan of Indo Asian News Services on wide-ranging issues regarding immigration under the Trump administration, especially during the transition, and what the future bodes for immigration under the Biden-Harris administration. https://www.youtube.com/watch?v=fRzHjtyW2r4&feature=youtu.be (video) Mr. Mehta’s views on the Department of Justice complaint accusing Facebook of citizenship discrimination are reflected in a Bloomberg Law article at https://news.bloomberglaw.com/daily-labor-report/dojs-facebook-allegations-risk-chilling-green-card-sponsorship?context=search&index=0. “This lawsuit could create a chilling effect on the labor certification program that employers use to sponsor skilled foreign worker nationals,” he said. “If an employer scrupulously follows the Labor Department’s complex rules governing the labor certification process, the employer could still be penalized by another branch of the federal government, based on this complaint. You can’t just have them as guest workers and then throw them out after a few years.”Mr. Mehta spoke on a panel, “Ethical Issues in Pro Bono Representation 2020,” under the aegis of the Practising Law Institute on December 10, 2020. The program highlighted ethical issues arising in pro bono representation across different legal disciplines. Mr. Mehta spoke about ethical issues arising in immigration pro bono practice with an emphasis on additional challenges that have arisen for immigration practitioners during the COVID-19 pandemic. https://www.pli.edu/programs/ethical-issues-in-pro-bono-representation

Mr. Paparelli and Mr. Yale-Loehr co-authored a blog posting: “Big-Picture, Clean-Slate Immigration Reforms for the Biden-Harris Administration.” https://www.nationofimmigrators.com/

Mr. Stock was quoted by Forbes in “DHS Publishes Final Rule To End H-1B Visa Lottery.” He said, “Under the Administrative Procedure Act, an agency must meaningfully address comments raised by the public in response to the proposed rulemaking. DHS needed to address a significant number of comments regarding whether the rule was lawfully promulgated, and did little more than repeat legal arguments that have been rejected by numerous federal courts about the lawfulness of the DHS secretary’s appointment.” https://www.forbes.com/sites/stuartanderson/2021/01/08/dhs-publishes-final-rule-to-end-h-1b-visa-lottery/?sh=fb098724af04

Mr. Stock was quoted by Forbes in “The Biden Administration and What Happens to Trump’s H-1B Visa rules.” Mr. Stock said, “Because the DOL wage rule has a phased-in process that leaves the current wages in place until July 1 in any event, even if DOL publishes a 60-day delay, it won’t change when that rule really takes effect. It is likely that current lawsuits which successfully rolled back the interim rule will be amended to challenge the final rule on substantive grounds.” https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=320649d3726b

Wolfsdorf Rosenthal LLP has published several new blog postings: “Acting DHS Secretary Pekoske Extends Temporary Protected Status for Syria,” “Biden Reinstates Travel Restrictions on U.S. Noncitizen Travelers from European Schengen Countries, U.K., Ireland and Brazil; South Africa Added,” “President Biden Moves Forward with Ambitious Immigration Agenda,” “Mandamus Litigation—The Solution for Unreasonably Delayed Employment and Travel Authorization Cards,” “Trump Administration Lifts Regional Covid-19 Bans for Europe and Brazil Starting Jan. 26—Biden Team to Reverse,” “WR Immigration Litigation Success Story—Successfully Challenging the USCIS Denial of an Extraordinary Ability Immigrant Visa in Federal District Court,” “Naturalization Application Denials for Lack of Old Employment or Tax Records,” and “Expediting Immigration Applications Before USCIS,” “USCIS to Replace Sticker That Extends Validity of Green Cards,” “DOL Announces New Rule That Will Raise Prevailing Wage Levels in July,” U.S. Will Require Negative COVID-19 Tests From International Air Travelers Starting Jan. 26,” “Tools Biden Will Use to Reverse Trump Administration Business Immigration Bans,” and “Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years,” “DHS Issues Final Rule to Modify H-1B Cap Lottery With Selection Process Based on Wage Level; New Administration Likely to Reverse Course,” “President Trump Extends Presidential Proclamation 10052 Impacting Immigrants and Nonimmigrants,” “January Visa Bulletin Report,” “Expansion of Interview Waiver Eligibility,” and “2020 At-A-Glance: Immigration Update.” https://wolfsdorf.com/blog/

Mr. Yale-Loehr was quoted by Law360 in “DHS Will Maintain H-1B Lottery System Through 2021.” Mr. Yale-Loehr said the announcement was good news for employers and potential H-1B workers, particularly junior-level applicants. “It gives them reassurance that the normal H-1B lottery rules apply again this year. It also means that new graduates have an equal shot this year in being selected for the H-1B lottery. By contrast, if the Trump lottery rule had applied, it is likely that no entry-level applicants would have been selected this year,” he said. https://www.law360.com/articles/1352470/dhs-will-maintain-h-1b-lottery-system-through-2021 (registration required)

Mr. Yale-Loehr was quoted by Correio Braziliense in ” ‘Os EUA estão de volta’, diz Biden ao retomar alianças” (” ‘The U.S. Is Back,’ Says Biden As He Resumes Alliances”). Mr. Yale-Loehr said it will take time for the United States to admit up to 125,000 refugees a year, as the Biden administration has called for. “But it sends a symbolic message that the country supports a robust refugee policy. It is also part of Biden’s more friendly tone towards immigrants,” he said. According to Mr. Yale-Loehr, President Biden has already made several important decisions on immigration, such as ending the ban on travel for Muslims and Africans, temporarily suspending deportations, and creating a task force to bring together separated families. “Reforming the failed immigration system will require the help of the United States Congress,” he noted. https://www.correiobraziliense.com.br/mundo/2021/02/4904774-os-eua-estao-de-volta-diz-biden-ao-retomar-aliancas.html (Portuguese)

Mr. Yale-Loehr was quoted by the Haitian Times in “Over 1400 Haitians Scheduled for Removal by U.S. Immigration Authorities.” He noted that the Biden administration has discretion to review Title 42 and determine expulsion based on legitimate national security concerns, as opposed to a blanket policy that assumes all entrants are a COVID-19 threat. Separately, he said a Texas federal judge’s order “does not require everyone to be deported immediately. The Biden administration can take other administrative steps to review deportation orders.” For example, he noted, the administration can direct immigration officials to loosen prosecutorial discretion, allowing for the continuation of legal proceedings concerning deportation. https://haitiantimes.com/2021/02/03/over-1400-haitians-scheduled-for-removal-by-us-immigration-authorities/ (subscription required)

Mr. Yale-Loehr was quoted by the Associated Press in an article about deportations under the Biden administration. “Scheduling deportations is still a matter of discretion for the agency,” Mr. Yale-Loehr said. https://www.latimes.com/world-nation/story/2021-02-02/hundreds-deported-under-biden-witness-walmart-massacre

Mr. Yale-Loehr was quoted by the Arizona Republic in “Thousands of Dreamers Have Applied for DACA Since December as Texas Court Ruling Looms.” Mr. Yale-Loehr noted that a judge expected to rule on the legality of the Deferred Action for Childhood Arrivals (DACA) program “certainly seemed to indicate that the DACA program was illegal.” Mr. Yale-Loehr said he believes the program is lawful because deferred action has been on the books for 50 years and has benefitted many people. Work permits that DACA recipients receive stem from separate regulations that say that anyone granted deferred action from deportation is eligible for a work permit, he noted.

Mr. Yale-Loehr co-authored a new report published by the Brookings Institution, “4 Ways the Biden Administration Can Improve the Employment-Based Immigration System Without Congress.” The article focuses on structural changes to help the U.S. economy attract and retain needed international essential workers. The authors reviewed plans from 14 organizations published after the 2020 election to focus the discussion on employment-based/student immigration, and identified four trends: (1) remove impediments to immigration; (2) improve the predictability of the immigration system; (3) resume the use of discretion by immigration officers; and (4) expand customer service. https://www.brookings.edu/research/4-ways-the-biden-administration-can-improve-the-employment-based-immigration-system-without-congress/

Mr. Yale-Loehr was quoted by Bloomberg Law in “Biden Agenda Draws Same Legal Challenges Used Against Trump.” Commenting on a Texas court ruling temporarily blocking President Biden’s plan to pause deportations, Mr. Yale-Loehr said the ruling “shows the difficulty that the Biden administration will have in trying to change immigration policy. Not only do they have to worry about a deeply divided Congress, they have to worry about federal courts upending their efforts. He noted that the Biden action was “just a short 100-day pause — not a final realignment of their enforcement policy. But that was still enough for a federal court to strike it down,” at least temporarily. https://news.bloomberglaw.com/us-law-week/texas-victory-over-deportation-pause-is-warning-sign-for-biden Mr. Yale-Loehr was quoted by Inside Higher Ed in “Keeping STEM Ph.D.s.” “These people have very specialized qualifications, and the companies need this kind of specialized talent to be able to compete in the global marketplace,” he said. https://www.insidehighered.com/news/2021/01/27/new-research-argues-need-streamline-green-card-process-foreign-stem-phds Mr. Yale-Loehr was quoted by the New York Times in “In First Blow to Biden Administration’s Immigration Agenda, Federal Judge Blocks 100-Day Pause on Deportation.” Mr. Yale-Loehr said, “The court’s order shows the uphill battle President Biden has in trying to reverse the prior administration’s immigration restrictions. A single judge can halt a federal agency’s effort to review and reprioritize its immigration enforcement policies.” https://www.nytimes.com/2021/01/26/us/politics/biden-immigration-deportation.html (subscription)Mr. Yale-Loehr was quoted by the Sinclair Broadcast Group in an article about possible immigration reform that was distributed by many media outlets nationwide. One such article, “Biden to Seek Comprehensive Immigration Reform in Narrowly Divided Congress,” was published by CBS Austin. Mr. Yale-Loehr said, “Given the 50-50 split between Republicans and Democrats in the Senate, it may be difficult to enact a comprehensive immigration reform bill, whenever Congress gets around it. A narrower bill, such as legislation to help so-called Dreamers, may be easier to enact.” https://cbsaustin.com/news/nation-world/biden-moves-to-dismantle-trump-immigration-policies-as-he-eyes-broader-reform Mr. Yale-Loehr was quoted by Univision in “¿Una moratoria a las deportaciones por 100 días? Piden a Biden actuar mientras revisa la política migratoria de Trump.” Mr. Yale-Loehr said the more than 400 changes to immigration law over the past four years “have caused substantial confusion among lawyers and immigrants. The fact that many of these changes have been challenged in court has only exacerbated the misunderstandings. This may be the goal of poorly drafted and complicated executive orders and agency rules: to deter people from immigrating, seeking asylum, or staying in the United States. The Trump administration has used chaos as a deliberate immigration tactic and it has been effective,” he said, noting that “immigrants have faced repeated threats in multiple settings, including repeated travel bans, the danger of ending Deferred Action for Childhood Arrivals (DACA) programs and temporary protected status (TPS), raids by Immigration and Customs Enforcement (ICE) agents and aggressive asylum restrictions.” He further observed that “the courts overturned or delayed some of the Trump administration’s immigration policy changes. But litigation takes time. And, with enough uncertainty generated, these policies have a similar impact as if they were actually implemented. In essence, the impact of these public policy changes extends far beyond the specific legal modifications themselves.” https://www.univision.com/noticias/inmigracion/reforma-migratoria-biden-deportaciones (Spanish)

Mr. Yale-Loehr was quoted by the New York Times in “A Judge Has Blocked Trump’s Sweeping Restrictions on Asylum Applications.” Commenting on a new rule blocked by a federal judge that would have closed the United States to most asylum seekers, Mr. Yale-Loehr said, “The rule would have been the death knell for many asylum seekers. The court’s decision today leaves the door open for people fleeing persecution.” https://nyti.ms/2JZ3TWY

Mr. Yale-Loehr was quoted by Univision in “Corte de California frena la entrada en vigor de la última regla de asilo de Trump [California court slows Trump’s latest asylum rule from taking effect].” “This new final rule will radically restrict the ability of people fleeing persecution to obtain asylum in the United States,” he said, calling the new rule “an asylum hater’s dream.” Mr. Yale-Loehr said the new rule would “gut the United States asylum system and, ultimately, very few people will be able to request and obtain [asylum].” https://www.univision.com/noticias/inmigracion/corte-de-california-frena-la-ultima-regla-de-asilo-de-trump

Mr. Yale-Loehr was quoted by the Houston Chronicle in “Chef at Houston’s Maharaja Bhog Rejected for Visa Renewal Amid Trump’s ‘invisible wall.’ ” He noted that USCIS began interpreting “specialized knowledge” more narrowly and in 2017 rescinded its policy of instructing officers to defer to prior determinations in petitions for extension of nonimmigrant status. “The Trump administration has been unable to build a physical wall along the U.S.-Mexico border but it has effectively built an invisible wall against legal immigration. The endgame is deny, deny, deny or delay, delay, delay.” He said that rejections of visa extensions for specialized-knowledge workers have cropped up dozens of times in federal court. https://www.houstonchronicle.com/news/houston-texas/houston/article/Houston-chef-maharaja-bhog-visa-reject-trump-15853495.phpMr. Yale-Loehr was quoted by Law360 in “Top 5 Immigration Cases to Watch in 2021.” Commenting on a case before the Supreme Court, Agusto Niz-Chavez v. Barr, he said that if the Supreme Court holds that deportation notices must be sent as one document to stop the clock on residency accrual, the ruling “could affect hundreds of thousands of cases” and give immigrants whose immigration court proceedings were initiated with multipart notices a potential new avenue for relief. The decision could also force the federal government to jump through “more procedural hoops” and worsen an already ballooning immigration court backlog if the government has to reissue old notices and correct future ones to be one document, he said. “That will slow down the immigration court process, and we’ve already got a messed up immigration court,” Mr. Yale-Loehr said. https://www.law360.com/immigration/articles/1333366/top-5-immigration-cases-to-watch-in-2021 (registration required)

Mr. Yale-Loehr was quoted by Univision in “Inmigrantes de bajos recursos, los principales afectados por la política migratoria de Trump en el 2020,” about the effects of President Trump’s immigration policy in 2020 on low-income immigrants. Mr. Yale-Loehr noted that the Trump administration revised procedural rules “to allow immigration judges to deny asylum applications without a hearing if they lack certain evidence. This particularly harms applicants without a lawyer. This rule is an asylum hater’s dream. It guts the U.S. refugee system and ultimately very few people will be able to get [asylum].” https://www.univision.com/noticias/inmigracion/la-politica-migratoria-de-trump-en-2020 (Spanish)

Mr. Yale-Loehr was quoted by Law360 in “Top Immigration Cases of 2020: Year in Review.” He said the flurry of immigration-related litigation in 2020 was “unprecedented. I’ve seen more immigration litigation in 2020 than I have in any other year in my 35 years of experience in immigration law.” Mr. Yale-Loehr commented on DHS v. Thuraissigiam, a Supreme Court case that focused on prior expedited removal policy: “That was a very scary decision. It lays the groundwork for restricting immigrants’ rights to sue in federal court in a variety of ways. We’ll have to see whether the case has legs, or whether it’s sort of relegated to its own specific facts.” https://www.law360.com/articles/1333361/top-immigration-cases-of-2020-year-in-review (registration required)Mr. Yale-Loehr was quoted by Congressional Quarterly News in “DOJ Finalizes Substantial Fee Hikes for Migrants Fighting Deportation.” He said it could be difficult for the incoming Biden administration to quickly come up with a remedy for the higher fees. “Given the fact that the Biden administration has so many competing priorities—like the pandemic, the economy, and other bigger immigration issues—it could take quite a while before the Biden administration could get around to proposing a rule to undo these changes,” he said. (Subscription required.)Mr. Yale-Loehr was quoted by Univision in “Este viernes el gobierno publica regla final que endurece requisitos para pedir asilo en EEUU,” on a new final rule that toughens requirements to request asylum in the United States. The final rule “will radically restrict the ability of people fleeing persecution to obtain asylum in the United States,” he said. Among other things, Mr. Yale-Loehr cited the imposition of “various prohibitions, including failure to pay taxes.” He also mentioned a new definition of the term “persecution” that will impose a higher standard than the previous definition. He noted that the rule redefines membership in a “particular social group,” a change that “will generally exclude people who are fleeing persecution because they oppose gangs in their country. It will also restrict the possibility of applying for asylum based on gender. Even women fleeing sexual slavery at the hands of ISIS may not qualify for asylum,” he warned. Another modification in the final rule concerns the procedure to allow immigration judges to reject asylum applications without a hearing if they lack certain evidence, he said. “This will be particularly damaging to applicants without an attorney representing them.” Mr. Yale-Loehr characterized the rule as “the asylum hater’s dream. It will gut the system and, indeed, very few people will be able to obtain protection in our country.” He noted that the rule is scheduled to take effect in 30 days, just before the inauguration. “The courts could eventually overthrow it, arguing that it violates U.S. and international law,” he noted. https://www.univision.com/noticias/inmigracion/gobierno-publica-este-viernes-regla-final-de-asilo (Spanish)Mr. Yale-Loehr was quoted by the Washington Post in “A Maryland Immigrant Hoped to Delay His Deportation Until Biden Took Office. It Didn’t Work.” The article reports on a case in which a man who had been in the United States for 20 years and has three small U.S.-born children was followed in his car by an unmarked vehicle, pulled over, and deported. He said that unilateral actions by ICE grew increasingly common under the Trump administration, but vary by regional office. Mr. Yale-Loehr said that although such moves are legal, they go against the spirit of laws passed in sanctuary jurisdictions such as Prince George’s County, Maryland (where the incident occurred), which explicitly barred county agencies from engaging in immigration enforcement. https://www.washingtonpost.com/local/public-safety/maryland-immigrant-deported/2020/12/07/0678c202-30d1-11eb-96c2-aac3f162215d_story.html Mr. Yale-Loehr was quoted in the San Francisco Chronicle in “New Asylum Rule Bars Gays, Lesbians Facing Persecution, Immigrants Threatened With Violence.” Mr. Yale-Loehr said the rule is “an asylum-hater’s dream” that “will gut the U.S. asylum system. Effectively, very few people will be able to win asylum.” https://www.sfchronicle.com/nation/article/New-asylum-rule-bars-gays-lesbians-facing-15795663.php Mr. Yale-Loehr was quoted by the Dallas Morning News in “Will DACA Survive the Litigation Roller Coaster?” He said that an upcoming decision by a federal judge who was appointed by former President George W. Bush could be grim for DACA recipients. “Given Judge Hanen’s past decisions on this issue, I think he is likely to rule that the DACA program is illegal.” Appeals, or the issuance of new executive measures, could result in lengthy litigation before there’s a final decision, he said. https://www.dallasnews.com/news/immigration/2020/12/11/will-daca-survive-the-litigation-rollercoaster/ Mr. Yale-Loehr was quoted by Univision in “Cómo la regla final de asilo del gobierno de Trump deja sin opciones a los migrantes.” He said that a new final rule on asylum “will radically restrict the ability of people fleeing persecution to obtain asylum in the United States.” The final rule also revised the procedural rules “to allow immigration judges to deny asylum applications without a hearing if they lack certain evidence. This will particularly harm applicants without a lawyer,” he noted. https://www.univision.com/noticias/inmigracion/estas-son-las-claves-de-la-regla-final-de-asilo-de-trump

Mr. Yale-Loehr was quoted by Haitian Times in “Over 1400 Haitians Scheduled for Removal by U.S. Immigration Authorities.” He noted that the Biden administration has discretion to review Title 42 and determine expulsion based on legitimate national security concerns, as opposed to a blanket policy that assumes all entrants are a COVID-19 threat. Separately, he said a Texas federal judge’s order “does not require everyone to be deported immediately. The Biden administration can take other administrative steps to review deportation orders.” For example, he noted, the administration can direct immigration officials to loosen prosecutorial discretion, allowing for the continuation of legal proceedings concerning deportation. https://haitiantimes.com/2021/02/03/over-1400-haitians-scheduled-for-removal-by-us-immigration-authorities/ (subscription required)

ABIL Immigration Insider • January 3, 2021

January 03, 2021/in Immigration Insider /by ABIL

In this issue:

1. Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions – President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021. He also extended a separate memo on visa sanctions for certain countries related to the coronavirus pandemic.

2. State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021 – The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.

3. Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years – The filing period for certain Liberian nationals and family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness provision has been extended until December 20, 2021.

4. USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants – USCIS is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands long-term resident status.

5. Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance – President Trump signed the Consolidated Appropriations Act of 2021, which extends the expiring E-Verify, Conrad 30, and non-minister religious worker green card programs, among other things.

6. I-9 Flexibility Extended to January 31 – The flexibility applies only to employers and workplaces that are operating remotely.

7. Filing Window for H-2B Applications With Work Start Dates on April 1 or After Opens in January – H-2B applications requesting an April 1 start date will be denied if they are filed before January 1.

8. In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology – A court order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.

9. DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns – DHS and DOJ issued a joint final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.

10. CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico – On December 22, 2020, CBP issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico. “Essential travel” is still exempted.

11. Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer as ‘Specialty Occupation’ – The Ninth Circuit ruled that USCIS’s denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.

12. DOJ Finalizes Rule Hiking Fees for EOIR Applications, Appeals, and Motions – DOJ issued a final rule effective January 19, 2021, adopting proposed fee amounts without change.

13. DOJ’s Asylum Final Rules Adopt Most Provisions of Interim and Proposed Rules – DOJ issued two final rules on asylum and withholding of removal-related standards and procedures.

14. USCIS Updates Discretionary Criteria for Case-by-Case Interview Determinations of Adjustment Applications Based on Refugee or Asylee Status – USCIS expanded the discretionary criteria USCIS officers use to determine whether to interview applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, based on refugee or asylee status. The guidance removes asylee and refugee adjustment cases from the list of categories in which USCIS may waive the required interview.

15. USCIS Issues Lockbox Updates re Recent Delays – The agency announced significant delays in issuing receipt notices and provided tips for decreasing processing time.

16. DOJ Finalizes EOIR Rule on BIA Appeals Processing – DOJ is making multiple changes to the processing of appeals to the BIA and clarifying “that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.”

17. Cato Institute Proposes 30 Deregulatory Actions for Biden Administration – The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals focus on agency measures to improve the process for legal immigrants.

18. In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy – USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020.

19. DHS, DOJ Issue Final Rule Tightening Asylum Regulations – DHS and DOJ issued a final rule tightening the regulations governing asylum, withholding of removal, and protections under the Convention Against Torture. The final rule generally adopts a proposed rule issued in June 2020 with few substantive changes.

20. USCIS Issues DACA Guidance Under Court Order – Following litigation related to DACA that resulted in a U.S. district court order, USCIS released guidance effective December 7, 2020.

21. TPS ‘Document Validity’ Extended for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan – DHS is automatically extending the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through October 4, 2021.

22. No Change in Spring 2021 Guidance for International Students – Nonimmigrant students should continue to abide by SEVP guidance issued in March 2020, a SEVP spokesperson said.

23. ABIL Global: France – This article provides updates on what Brexit means for British nationals residing in France.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – January 2021

1. Trump Extends Through March Bans on Foreign Workers Previously Set to Expire December 31, 2020; Extends Memo on Visa Sanctions

On December 31, 2020, President Trump signed a proclamation extending earlier proclamations suspending the entry of certain immigrant and nonimmigrant visa applicants through March 31, 2021, and stating that the proclamation “may be continued as necessary.” The nonimmigrant suspension applies to applicants for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, and summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas.

The President also extended a memorandum on visa sanctions, to “continue in force until terminated by the President.” The memo states that “countries that deny or unreasonably delay the acceptance of their citizens, subjects, nationals, or residents from the United States during the ongoing pandemic caused by SARS-CoV-2 [the COVID-19 pandemic] create unacceptable public health risks for Americans.” The earlier memo on which it is based states that “visa sanctions” will be imposed on such countries.

Details:

Presidential Proclamation, Dec. 31, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-continue-present-risk-united-states-labor-market/
“Extension of Presidential Proclamations 10014 and 10052,” Department of State, Jan. 1, 2021, https://travel.state.gov/content/travel/en/News/visas-news/extension-of-presidential-proclamations-10014-and-10052.html
Presidential Proclamation 10052, June 22, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
Presidential Proclamation 10014, April 22, 2020, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/
“Memorandum on Extension of Memorandum on Visa Sanctions,” Dec. 30, 2020, White House, https://www.whitehouse.gov/presidential-actions/memorandum-extension-memorandum-visa-sanctions/
“Memorandum on Visa Sanctions,” April 10, 2020, https://www.whitehouse.gov/presidential-actions/memorandum-visa-sanctions/

2. State Dept. Extends Interview Waiver Eligibility Criteria Through March 31, 2021

The Department of State, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously, only those applicants whose nonimmigrant visas expired within 12 months were eligible for an interview waiver. The expiration period is temporarily extended to 24 months. The policy, which was set to expire December 31, 2021, is now effective through March 31, 2021.

Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for details on available services and eligibility information and instructions on applying for a visa without an interview.

Details:

DOS notice, https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html

3. Filing Period for Certain Liberians Applying for Adjustment Extended to Two Years

U.S. Citizenship and Immigration Services (USCIS) announced that the filing period for certain Liberian nationals and family members to apply for adjustment of status under the Liberian Refugee Immigration Fairness provision has been extended until December 20, 2021.

The provision provides an opportunity for certain Liberian nationals and family members to obtain lawful permanent resident status in the United States.

Details:

USCIS notice, https://www.uscis.gov/green-card/green-card-eligibility/liberian-refugee-immigration-fairness

4. USCIS Extends Parole, and Employment Authorization, for Certain CNMI Long-Term Resident Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on December 30, 2020, that it is automatically extending through June 30, 2021, parole, and employment authorization, if applicable, for certain parolees who timely applied for Commonwealth of the Northern Mariana Islands (CNMI) long-term resident status.

This extension applies only to those whose applications remained pending on December 31, 2020. Parole (and employment authorization) for such parolees will be extended without interruption through June 30, 2021, or the date on which USCIS makes a final decision on the parolee’s Form I-955 (Application for CNMI Long-Term Resident Status) and Form I-765 (Application for Employment Authorization), whichever is earlier.

Details:

USCIS alert, https://www.uscis.gov/news/alerts/uscis-extends-transitional-parole-for-cnmi-long-term-resident-status-applicants-0

5. Trump Signs Appropriations Bill Extending Several Immigration Programs; State Dept. Issues Related Guidance

On December 27, 2020, President Trump signed the Consolidated Appropriations Act of 2021, which extends several expiring immigration programs. The E-Verify, Conrad 30, and non-minister religious worker green card programs are reauthorized through September 30, 2021, and the EB-5 Regional Center Program is reauthorized through June 30, 2021. These programs had been set to expire on December 28, 2020. The legislation also provides that certain nonimmigrants who pay taxes and meet other requirements may be eligible for a COVID-19 pandemic recovery rebate.

The Department of State’s Visa Bulletin for January 2021, which was released before Congress voted on this legislation, stated that with respect to the employment fourth preference Certain Religious Workers (SR) category, an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a March 1, 2018 final action date, and for Mexico, which would be subject to a December 1, 2018 final action date.”

With respect to the employment fifth preference (I5 and R5) categories, the bulletin states that an extension means that “the December dates would continue to be applied, potentially for the remainder of the month. …If there is legislative action extending this category for January, the final action date would immediately become ‘Current’ for January for all countries except China-mainland born, which would be subject to an August 15, 2015 final action date, and for Vietnam, which would be subject to a September 15, 2017 final action date.”

Details:

Consolidated Appropriations Act, 2021, https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-116HR133SA-RCP-116-68.pdf
January 2021 Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-january-2021.html

6. I-9 Flexibility Extended to January 31

U.S. Immigration and Customs Enforcement announced an additional 30-day extension to January 31, 2021, of flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to the COVID-19 pandemic. The flexibility applies only to employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented now for in-person verification of identity and employment eligibility documentation for the I-9 process.

Details:

ICE extension news release, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-1
Original ICE news release with information on how to obtain, remotely inspect, and retain copies of identity and employment eligibility documents, https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance

7. Filing Window for H-2B Applications With Work Start Dates on April 1 or After Opens in January

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the filing window to submit H-2B Applications for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2021, or later will open on January 1, 2021. H-2B applications requesting an April 1 start date will be denied if they are filed before January 1.

OFLC said it will randomly order all H-2B applications requesting a work start date of April 1 that are filed during the initial three calendar days (January 1-3) using randomization procedures published on March 4, 2019.

Details:

OFLC announcement (scroll to December 16, 2020), https://www.dol.gov/agencies/eta/foreign-labor
Randomization procedures, https://www.federalregister.gov/documents/2019/03/04/2019-03809/selection-procedures-for-reviewing-applications-filed-by-employers-seeking-temporary-employment-of
Foreign Labor Application Gateway, https://flag.dol.gov/?_ga=2.244700421.1850708295.1609030229-1479692143.1589050892

8. In Response to Litigation, OFLC Updates Implementation of H-2A Adverse Effect Wage Rate Methodology

On December 23, 2020, the U.S. District Court for the Eastern District of California issued an order in United Farm Workers v. DOL enjoining the Department of Labor (DOL) from implementing a final rule on adverse effect wage rate (AEWR) methodology for the temporary employment of H-2A nonimmigrants in non-range occupations. The court’s order prevents DOL from further implementing the H-2A AEWR final rule, which took effect on December 21, 2020, and orders DOL to use the methodology established by the agency’s 2010 H-2A regulation to establish the hourly AEWRs for all non-range occupations.

Effective immediately, and until further notice, H-2A job orders filed with the State Workforce Agency serving the area of intended employment on or after December 21, 2020, including job orders filed concurrently with an Application for Temporary Employment Certification to the OFLC National Processing Center for emergency situations, must use the AEWRs in effect on December 20, 2020.

Details:

OFLC announcement (scroll to December 24, 2020), https://www.dol.gov/agencies/eta/foreign-labor

9. DHS, DOJ Issue Final Rule on Asylum and Withholding of Removal Security Bars for Public Health Concerns

The Departments of Homeland Security and Justice issued a final rule clarifying that the security bar for “danger to the security of the United States” for asylum and withholding of removal may encompass emergency public health concerns due to a communicable disease.

The final rule responds to comments and reflects (and, in some instances, modifies) intervening changes made to the regulations since the proposed rule was published in July 2020.

Details:

Final rule,

10. CBP Issues Temporary Travel Restrictions at Borders With Canada, Mexico

On December 22, 2020, U.S. Customs and Border Protection (CBP) issued two notices extending temporary travel restrictions related to the COVID-19 pandemic and applicable to land ports of entry and ferry service between the United States and Canada, and between the United States and Mexico.

From December 22, 2020, through January 21, 2020, travel from Canada and Mexico into the United States via land ports of entry and ferry service is limited to “essential travel,” as defined in the notices. Essential travel includes, but is not limited to, returning U.S. citizens and lawful permanent residents; individuals traveling for medical purposes, to attend educational institutions, to work in the United States, for emergency response and public health purposes, to engage in lawful cross-border trade, and others. Those subject to the restrictions include those traveling for tourism, including sightseeing, recreation, gambling, or attending cultural events.

The notices do not apply to air, freight rail, or sea travel but do apply to passenger rail, passenger ferry travel, and pleasure boat travel.

Details:

CBP Mexico notice,
CBP Canada notice,

11. Ninth Circuit Rejects USCIS Reasoning on H-1B Computer Programmer as ‘Specialty Occupation’

In a decision issued December 16, 2020, the Ninth Circuit ruled that U.S. Citizenship and Immigration Services’ (USCIS) denial of a visa for a computer programmer on the basis that it was not a “specialty occupation” was arbitrary and capricious, and remanded the case.

The court was unpersuaded by USCIS’ reasoning, noting among other things that whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. The court noted that USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “most” computer programmers have a bachelor’s degree. The court pointed out that the regulatory language similarly states that a bachelor’s degree is “normally” required for a computer programmer, and found no appreciable difference between those two descriptions: “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria.” Indeed, the court found USCIS’s reasoning “beyond saving.”

Details:

Innova Solutions v. Baran, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf
“Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa,”

12. DOJ Finalizes Rule Hiking Fees for EOIR Applications, Appeals, and Motions

The Department of Justice issued a final rule effective January 19, 2021, adopting fee amounts proposed in February 2020 without change. The rule increases the fees for Executive Office for Immigration Review (EOIR) applications, appeals, and motions subject to an EOIR-determined fee. The rule does not affect fees established by the Department of Homeland Security (DHS) for DHS forms for applications filed or submitted in EOIR proceedings. It does not affect the ability of applicants to submit fee waiver requests and does not add new fees. The final rule responds to comments received in response to the notice of proposed rulemaking.Some practitioners noted that it could be difficult for the incoming Biden administration to quickly come up with a remedy for the higher fees given competing urgent priorities.

Details:

Final rule,

13. DOJ’s Asylum Final Rules Adopt Most Provisions of Interim and Proposed Rules

The Department of Justice issued two final rules on asylum and withholding of removal-related standards and procedures.

Final rule on asylum eligibility and procedural modifications. This final rule, effective January 19, 2021, responds to comments received on an interim final rule issued in July 2019 and “makes minor changes to regulations implemented or affected by the [interim final rule] for clarity and correction of typographical errors.”

Among other things, the rule adds a new mandatory bar to eligibility for asylum for those who enter or attempt to enter the United States “across the southern land border after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States.” Some exceptions apply. The rule also adds new limits on asylum eligibility for people who are subject to expedited removal.

Final rule on procedures for asylum and withholding of removal. This final rule, effective January 15, 2021, responds to comments received in response to a notice of proposed rulemaking issued in September 2020. The final rule adopts the proposed rule “with few changes.” The rule outlines requirements for filing a complete application for relief and the consequences of filing an incomplete application, establishes a 15-day filing deadline for applicants in “asylum-and-withholding-only proceedings” (calculated from the date of the first hearing before an immigration judge (IJ), with “good cause” extensions possible) and clarifies evidentiary standards in deciding such applications. It also adopts changes related to the 180-day asylum adjudication clock.

In a change from the proposed rule, which required the applicant to submit a fee receipt together with the application by the deadline set by the IJ, the final rule allows applicants to meet the filing deadline when they “cannot meet all requirements due to no fault of their own.” As an example, the final rule says an applicant can submit alternative proof of payment if the fee receipt has not yet been received, but in such instance, the fee receipt will be due by the deadline the IJ sets. If the IJ does not set a separate deadline for the fee receipt, the applicant must submit it within 45 days of the date of filing the associated application.

Details:

Final rule on asylum eligibility and procedural modifications,
Final rule on procedures for asylum and withholding of removal,

14. USCIS Updates Discretionary Criteria for Case-by-Case Interview Determinations of Adjustment Applications Based on Refugee or Asylee Status

U.S. Citizenship and Immigration Services (USCIS) expanded the discretionary criteria USCIS officers use to determine whether to interview applicants filing Form I-485, Application to Register Permanent Residence or Adjust Status, based on refugee or asylee status. The guidance removes asylee and refugee adjustment cases from the list of categories in which USCIS may waive the required interview.

The updated criteria “are well within the parameters of USCIS’ regulatory authority to determine, on a case-by-case basis, whether an interview is necessary to determine the admissibility of an alien applying for lawful permanent resident status under INA § 209,” the agency said, noting that the updates do not change the eligibility requirements to adjust status.  Although the updated criteria “may result in more applicants requested to appear for an interview, the changes are necessary to help ensure program integrity and support USCIS’ efforts to detect and prevent fraud and risks of harm to the United States,” the agency said.

Details:

15. USCIS Issues Lockbox Updates re Recent Delays

U.S. Citizenship and Immigration Services (USCIS) announced that its lockbox facilities “have received a significant increase in filings in recent weeks.” The increase, along with COVID-19 pandemic-related restrictions, is causing “significant delays for processing receipt notices,” the agency said.

The notice states that USCIS will send a receipt notice to the mailing address provided on a properly filed form “normally within 30 days.” The agency provided several tips for decreasing the time it takes USCIS to process and send a receipt notice, including filing online, creating a USCIS online account and using the case status online tool to check status, and completing a Form G-1145, Notification of Application/Petition Acceptance, and clipping it to the front of the form to request a text message and/or email when USCIS accepts the form. The notice also includes additional tips for submitting evidence with application packages.

Details:

USCIS Lockbox Updates,

16. DOJ Finalizes EOIR Rule on BIA Appeals Processing

The Department of Justice (DOJ) published a final rule, effective January 15, 2021, making multiple changes to processing appeals to the Board of Immigration Appeals (BIA) and to clarify “that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.” The final rule responds to comments made on a proposed rule issued in August 2020 and adopts the proposed rule “with minor changes.”

Among other things, the final rule reduces the maximum allowable time for an extension of the briefing schedule for “good cause shown” from 90 days to 14 days. The rule limits the parties to one possible extension, consistent with BIA policy “not to grant second briefing extension requests.” The rule also “adopts simultaneous briefing schedules instead of consecutive briefing schedules for all cases.” In response to comments, DOJ also made adjustments to the biometrics timeline to allow for circumstances such as delays by the Department of Homeland Security or lack of sufficient notice.

Details:

DOJ final rule, https://bit.ly/3arBsf5

17. Cato Institute Proposes 30 Deregulatory Actions for Biden Administration

The Cato Institute recommended 30 deregulatory actions for the Biden administration to consider, to “lessen the costs of America’s outdated immigration laws.” The proposals “focus entirely on agency measures to improve the process for legal immigrants.”

The report notes that President Trump has reduced immigrant visa approvals by more than 80 percent during his term. The agenda compiled by Cato would “permit more legal migration and legal employment within the confines of the restrictive laws that Congress has passed.” Contributors include several members of the Alliance of Business Immigration Lawyers and other immigration law experts. Their proposals are organized into four sections: reforms affecting green card applicants on the path to permanent residence, reforms affecting nonimmigrants (visitors, students, and temporary workers), reforms affecting refugees, and big-picture reforms affecting more than one category.

Details:

“Deregulating Legal Immigration: A Blueprint for Agency Action,” Cato Institute, https://www.cato.org/publications/study/deregulating-legal-immigration-blueprint-agency-action
“Leading Legal Experts Urge Aggressive Immigration Actions,” The Hill, https://thehill.com/blogs/congress-blog/politics/530948-leading-legal-experts-urge-aggressive-immigration-actions

18. In Response to Litigation, USCIS Pauses ‘Blank Space’ Rejection Policy

As a result of litigation in Vangala v. USCIS challenging USCIS’s blank-space rejection policy, where the agency rejected applications because of blank spaces, USCIS has agreed to pause implementation of the rejection policy starting December 24, 2020. According to counsel, the parties will enter into negotiations to resolve the claims, including a remedy for proposed class members who have had applications rejected.

Those who received a rejection notice dated after December 24, 2020, can contact plaintiffs’ counsel at [email protected].

Details:

National Immigration Litigation Alliance’s “Affirmative Litigation Docket” (scroll down to Vangala v. USCIS), includes summary and legal documents, https://immigrationlitigation.org/impact-litigation/

19. DHS, DOJ Issue Final Rule Tightening Asylum Regulations

On December 11, 2020, the Departments of Homeland Security (DHS) and Justice (DOJ) issued a final rule tightening the regulations governing asylum, withholding of removal, and protections under the Convention Against Torture. Despite more than 87,000 mostly negative comments, the final rule generally adopts a proposed rule issued on June 15, 2020, with few substantive changes.

The final rule provides that individuals found to have a credible fear will have their claims adjudicated by an immigration judge within the Executive Office for Immigration Review (EOIR) in “streamlined proceedings” and specifies the standard of review that applies. The final rule also amends the regulations related to the standards for adjudication of applications for asylum and statutory withholding, and revises the definition of “frivolous” as applied to filing an asylum application, among other things.

The final rule provides several adverse factors that will “ordinarily” result in asylum denials as a matter of discretion. Among those discretionary factors are missed deadlines for paying taxes, spending more than 14 days in any one country that permitted applications for similar protections, unlawfully entering or attempting to enter the United States “unless such entry or attempted entry was made in immediate flight from persecution or torture in a contiguous country”; and transiting through more than one country before arriving in the United States.

According to some commenters, the rule will severely restrict the ability of people fleeing persecution to apply for asylum in the United States and will make it very difficult for a variety of groups, such as those facing persecution on the basis of gender or sexual orientation, to obtain asylum. Also, the rule allows immigration judges to deny asylum applications without a hearing if they lack certain evidence, which could harm applicants without a lawyer.

Details:

DHS/DOJ final rule, https://www.federalregister.gov/documents/2020/12/11/2020-26875/procedures-for-asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review
“New Asylum Rule Bars Gays, Lesbians Facing Persecution, Immigrants Threatened With Violence,” San Francisco Chronicle, https://www.sfchronicle.com/nation/article/New-asylum-rule-bars-gays-lesbians-facing-15795663.php
“Cómo la regla final de asilo del gobierno de Trump deja sin opciones a los migrantes,” Univision, https://www.univision.com/noticias/inmigracion/estas-son-las-claves-de-la-regla-final-de-asilo-de-trump (Spanish)

20. USCIS Issues DACA Guidance Under Court Order

Following litigation related to Deferred Action for Childhood Arrivals (DACA) that resulted in a U.S. district court order issued December 4, 2020, U.S. Citizenship and Immigration Services (USCIS) released guidance effective December 7, 2020. USCIS is:

Accepting first-time requests for consideration of deferred action under DACA, DACA renewal requests, and applications for advance parole documents based on the terms of the DACA policy in effect before September 5, 2017, and in accordance with the court’s order; and
Extending one-year grants of deferred action and one-year work authorization documents under DACA to two years.

USCIS said it will take “appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”

USCIS’ statement says that the Department of Homeland Security (DHS) “will comply with the order while it remains in effect, but DHS may seek relief from the order.”

Details:

USCIS news alert, https://www.uscis.gov/news/alerts/deferred-action-for-childhood-arrivals-response-to-december-4-2020-order-in-batalla-vidal-et-al-v
December 4, 2020, court order, http://cdn.cnn.com/cnn/2020/images/12/04/batalla_vidal_et_al_v_nielsen_et_al__nyedce-16-04756__0354.0.pdf
“Judge Orders Trump Administration To Restore DACA As It Existed Under Obama,” NPR, https://www.npr.org/2020/12/04/943355234/judge-orders-trump-administration-to-restore-daca-as-it-existed-under-obama

21. TPS ‘Document Validity’ Extended for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan

The Department of Homeland Security (DHS) is automatically extending the validity of temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal for nine months from the current expiration date of January 4, 2021, through October 4, 2021.

The notice provides information about the effects of several court actions on the timeframes for retention of TPS by beneficiaries from these countries in the United States.

Details:

DHS notice, https://bit.ly/2IJm0Q5

22. No Change in Spring 2021 Guidance for International Students

According to reports, a spokesperson for the Student and Exchange Visitor Program (SEVP) announced that spring 2021 guidance related to the COVID-19 pandemic for international students in programs in “hybrid” or online modes will remain the same as before. “Nonimmigrant students should continue to abide by SEVP guidance originally issued in March 2020. The guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the public health emergency generated by COVID-19,” said Carissa Cutrell, SEVP Public Affairs Officer.

The announcement followed a multi-association letter led by the American Council on Education (ACE) and signed by NAFSA: Association of International Educators and other higher education associations asking U.S. Immigration and Customs Enforcement and SEVP for COVID-19 guidance for the spring term “as soon as possible,” and to provide for “maximum flexibility.” The letter said that currently, institutions and students are following the March guidance for F and M nonimmigrant students that was updated on August 7, 2020. The guidance allows international students on F and M visas to remain in the United States if their programs need to use an online-only instruction platform during the pandemic, the letter noted. “Unfortunately, the guidance does not allow new international students to travel to the United States to begin a program if that program is online only due to COVID-19, or allow institutions to issue a Form I-20 ‘Certificate of Eligibility for Nonimmigrant Student Status’ for those new students,” the letter said.

The letter cited a recent survey, by the Institute of International Education and nine partner higher education associations, that found a 43 percent drop in international student enrollment in U.S. institutions this semester. The survey also found that 99 percent of institutions are either holding classes online or implementing a hybrid model.

Details:

“Updates on Spring 2021 SEVP COVID-19 Guidance,” NAFSA, https://www.nafsa.org/regulatory-information/sevp-covid-19-guidance-sources
“Federal Guidance on Foreign Students Remains Same for Spring,” Inside Higher Ed, https://www.insidehighered.com/quicktakes/2020/12/09/federal-guidance-foreign-students-remains-same-spring
“New Process: Reporting School Procedural Adaptations to SEVP,” ICE (August 2020), https://www.ice.gov/doclib/sevis/pdf/bcm2008-01.pdf
“ICE Continues March Guidance for Fall School Term,” ICE (July 2020), https://www.ice.gov/doclib/sevis/pdf/bcmFall2020guidance.pdf
“Coronavirus Disease 2019 (COVID-19) and Potential Procedural Adaptations for F and M Nonimmigrant Students,” ICE (March 2020), https://www.ice.gov/doclib/sevis/pdf/bcm2003-01.pdf
ACE letter, https://www.acenet.edu/Documents/Letter-DHS-international-student-guidance-Spring-2021-120420.pdf
Fall International Enrollments Snapshot Reports, Institute of International Education, https://www.iie.org/Research-and-Insights/Open-Doors/Fall-International-Enrollments-Snapshot-Reports

23. ABIL Global: France

This article provides updates on what Brexit means for British nationals residing in France.

On December 31, 2020, at midnight, the Brexit transition period ended. The United Kingdom is no longer part of the European Union (EU).

British nationals already residing in France can submit “Withdrawal Agreement” residence permit applications. The request can be made on the internet. All British nationals already residing in France before December 31, 2020, are eligible to apply for a residence permit, in accordance with the provisions of the Brexit agreement signed between the UK and the EU. By June 30, 2021, all British nationals wishing to benefit from the provisions of the Brexit agreement to retain their rights to stay and work in France must have a French residence permit.

Applicants must upload documentation, including passport identity pages; proof establishing the date the applicant moved to France, such as a property certificate issued by a notary, a home insurance contract, a home insurance certificate or an employment contract; and documents relating to the specific situation of each applicant. For example, an employee must provide a copy of their most recent pay slip, while a student must provide proof of enrollment in a school or university. After completing these steps, the applicant will receive an application confirmation by email, with a reference number confirming the filing.

Once the file has been processed, an email will be sent to the candidate to make an appointment at the prefecture to finalize the file (fingerprinting, photo, and proof of payment of fees).

It is not yet clear how the applicant will receive the residence permit when it becomes available, whether by post to his or her home in France or by going to the Prefecture a second time.

Permit Types

Presence of less than five years

British nationals who resided in France for less than five years as of December 31, 2020, can also apply for a residence permit, depending on their status (e.g., student, employee, temporary worker, posted worker, self-employed professional, unemployed person, family member, long-term visitor). They will be issued a residence permit in accordance with the agreement bearing the specific category, such as “Withdrawal agreement—employee.”

Applicants are advised to prepare certain documents, such as:

Passport or identity card
Proof of address in France
Identity photographs
Proof of resources: employment contract, pay slips, bank statements
Proof of professional activity: work certificate signed by the employer confirming the date of the start of employment in France
Proof of the purpose of the stay in France over the past five years (e.g., employment contract)

British nationals who have resided in France for less than five years as of December 31, 2020, can also apply for a resident card when they can prove that they have lived in France for five years. For example, a British national residing in France as of December 31, 2017, can apply for a resident card as of December 31, 2022.

Presence of five years or more

British nationals who have resided for five years or more in France as of December 31, 2020, are eligible to obtain a resident card valid for 10 years.

Applicants are advised to prepare certain documents, such as:

Passport or identity card
Proof of address in France
Three identity photographs
Proof of presence in France over the past five years: one document per half-year (e.g., rent receipts, energy bills)
Proof of resources: employment contract, pay slips, bank statements

New Publications and Items of Interest

Immigration Policy Tracking Project. The IPTP is designed to support reform and advocacy by cataloging every known Trump policy, including the many lesser-known but significant changes not generally reported. The website includes rules, directives, form changes, memos, Attorney General certifications, executive orders, presidential proclamations, pending rule changes, and other actions. The website contains more than 1,000 entries and is regularly updated to reflect new policies. Each IPTP entry includes the underlying policy documents and any relevant predecessor policies or documents. The entries are searchable and can be sorted in a variety of ways, such as chronologically, by subject matter, by agency, by type of action, or by status of policy change. The website is at https://immpolicytracking.org/?next=/home/. Registration is available at https://immpolicytracking.org/?next=/home/#/tab-request-access. IPTP welcomes suggestions for enhancing IPTP’s accuracy and completeness via the “Feedback” link connected to each entry, or general suggestions or documents can be submitted to [email protected].

Catalog of changes under the Trump administration. The Migration Policy Institute offers a comprehensive catalog, by topic, of more than 400 executive actions on immigration over the past four years, including dates and underlying source materials. https://www.migrationpolicy.org/research/us-immigration-system-changes-trump-presidency

COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information

American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

USCIS: USCIS.gov/coronavirus
ICE:

Overview and FAQs: https://www.ice.gov/coronavirus
Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
pdf

CBP:

Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

Office of Foreign Labor Certification:

OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
COVID-19 FAQs:
- Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
- Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
- Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

State Department: https://www.state.gov/coronavirus/

Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

Agency Twitter Accounts

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

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

ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has released a new podcast episode in its series Statutes of Liberty. A panel discusses the complicated logistics of international holiday travel during the COVID-19 pandemic.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) were quoted by the Times of India in “U.S. Extends Ban on H-1B, L-1 Till March.” Mr. Mehta said the visa ban extension contradicts its rationale to protect U.S. jobs after President Trump’s recent claim that the unemployment rate is below 6.7%. “It is Trump’s last gasp to hurt immigration that benefits the U.S. as the skilled workers impacted promote economic recovery. Although the ban was enjoined by the court in NAM (National Association of Manufacturers) v Trump, that ruling was limited to the plaintiff organizations that brought the suit. Therefore, the extension will still be effective on others.” Mr. Yale-Loehr said that “[b]arring temporary foreign workers from entering the country was a mistake in June. It remains a mistake today.” https://timesofindia.indiatimes.com/business/international-business/us-extends-ban-on-h-1b-l-1-till-march/articleshow/80068643.cms Mr. Mehta authored a new blog posting. “Top Ten Most Viewed Posts on the Insightful Immigration Blog in 2020” is at http://blog.cyrusmehta.com/2020/12/top-ten-most-viewed-posts-on-the-insightful-immigration-blog-in-2020.html.

Mr. Mehta; Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm); Greg Siskind, of Siskind Susser, PC; William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US); and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) contributed recommendations to “Deregulating Legal Immigration: A Blueprint for Agency Action,” published by the Cato Institute. The article presents 30 deregulatory proposals by 15 authors for consideration by the Biden administration. The proposals focus on agency measures to improve the process for legal immigrants. The Cato article is at https://www.cato.org/publications/study/deregulating-legal-immigration-blueprint-agency-action. A related op-ed, “Leading Legal Experts Urge Aggressive Immigration Actions,” published by The Hill, is at https://thehill.com/blogs/congress-blog/politics/530948-leading-legal-experts-urge-aggressive-immigration-actions.

Mr. Mehta and Kaitlyn Box co-authored several new blog postings: “Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa,” ; and “Two New York Ethics Opinions Instruct When Lawyers Can Withdraw from Representing a Client in Court During COVID-19,” https://bit.ly/3aoIXDH Mr. Mehta was interviewed by Nikhila Natarajan of Indo Asian News Services on wide-ranging issues regarding immigration under the Trump administration, especially during the transition, and what the future bodes for immigration under the Biden-Harris administration. https://www.youtube.com/watch?v=fRzHjtyW2r4&feature=youtu.be (video) Mr. Mehta’s views on the Department of Justice complaint accusing Facebook of citizenship discrimination are reflected in a Bloomberg Law article at https://news.bloomberglaw.com/daily-labor-report/dojs-facebook-allegations-risk-chilling-green-card-sponsorship?context=search&index=0. “This lawsuit could create a chilling effect on the labor certification program that employers use to sponsor skilled foreign worker nationals,” he said. “If an employer scrupulously follows the Labor Department’s complex rules governing the labor certification process, the employer could still be penalized by another branch of the federal government, based on this complaint. You can’t just have them as guest workers and then throw them out after a few years.”Mr. Mehta spoke on a panel, “Ethical Issues in Pro Bono Representation 2020,” under the aegis of the Practising Law Institute on December 10, 2020. The program highlighted ethical issues arising in pro bono representation across different legal disciplines. Mr. Mehta spoke about ethical issues arising in immigration pro bono practice with an emphasis on additional challenges that have arisen for immigration practitioners during the COVID-19 pandemic. https://www.pli.edu/programs/ethical-issues-in-pro-bono-representation

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in “Inmigrantes de bajos recursos, los principales afectados por la política migratoria de Trump en el 2020,” about the effects of President Trump’s immigration policy in 2020 on low-income immigrants. Mr. Yale-Loehr noted that the Trump administration revised procedural rules “to allow immigration judges to deny asylum applications without a hearing if they lack certain evidence. This particularly harms applicants without a lawyer. This rule is an asylum hater’s dream. It guts the U.S. refugee system and ultimately very few people will be able to get [asylum].” https://www.univision.com/noticias/inmigracion/la-politica-migratoria-de-trump-en-2020 (Spanish)

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/visas/en/law-and-policy/bulletin.html

ABIL Global Update • February 2020

February 01, 2020/in Global Immigration Update /by ABIL

In this issue:

1. SHORT-TERM HIGH-SKILLED WORKER PROGRAMS: AN OVERVIEW – This article provides an overview of policies and procedures on short-term high-skilled worker programs in several countries.

2. BELGIUM – Belgium has announced 2020 gross salary thresholds.

3. CANADA – Québec attestations are now required for permanent immigrant applicants. Also, there is an update on the parent/grandparent sponsorship program.

4. COLOMBIA – This article provides information about several aspects of Colombian immigration.

5. INDIA – There has been confusion about renewals of the Overseas Citizenship of India (OCI) card. The Indian government has announced a temporary relaxation of OCI renewal guidelines.

6. TURKEY – The Republic of Turkey has released updated minimum salary amounts. Also, there has been an update regarding limitations on renewals of Touristic Residence Permits.

7. RUSSIA – This article provides an update on immigration-related developments in Russia.

8. UNITED KINGDOM – It’s happened: The UK officially left the EU on January 31, 2020. Now what?

9. New Publications and Items of Interest – New Publications and Items of Interest

10. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – February 2020

1. SHORT-TERM HIGH-SKILLED WORKER PROGRAMS: AN OVERVIEW

This article provides an overview of policies and procedures on short-term high-skilled workers in several countries.

India

The Indian employment visa allows for short-term employment for an organization registered in India for a duration of generally one year. Foreign technicians are eligible for a five-year employment visa. Highly skilled foreign personnel being employed in the IT software and IT-enabled sectors are eligible for an employment visa for a validity of up to three years.

The applicant should be a highly skilled or qualified professional being employed at a senior level or as a technical expert. There also should not be a qualified Indian available for the same job that the visa holder will perform. The employment visa cannot be granted for routine, ordinary, or secretarial/clerical jobs.

Although the employment must be in an organization registered in India, it may also be granted for a person who is employed by a foreign company or organization engaged for the execution of some project in India.

The employee’s salary must be in excess of INR 16.25 lakhs (approximately $25,000) per year. However, this condition does not apply to: (a) ethnic cooks, (b) language teachers (other than English language teachers)/translators and (c) staff working for a foreign embassy or high commission in India. The salary requirement is also not applicable to an employment visa applicant who intends to do volunteer work with charities or nonprofit organizations in India.

Foreigner registration is a mandatory requirement by the government of India under which all foreign nationals (excluding overseas citizens of India) visiting India on a long-term visa (more than 180 days) must register themselves with a Foreigner Regional Registration Officer/Foreigner Registration Officer within 14 days of arriving in India. This registration can be done online. Further details are available at https://indianfrro.gov.in/eservices/home.jsp. Additional extensions of employment visas can be facilitated through the FRRO for up to five years subject to the applicant’s good conduct, production of necessary documents in support of continued employment, filing of income tax returns, and no adverse security inputs.

Further details are available in the Business and Employment Visa FAQ issued by the Ministry of Home Affairs at https://mha.gov.in/sites/default/files/work_visa_faq.pdf.

Details regarding the requirements and documentation for the employment visa are available at https://www.in.ckgs.us/visa/employment-visa.

Italy

Italian Immigration law provides for different kinds of work permits for highly skilled workers assigned to work temporarily in Italy. Under these options, workers do not become local employees but maintain an employment relationship with the home country employer. The issuance of these work permits is not subject to the yearly immigration quotas set by the government.

Intra-company work permit for highly specialized staff/managers on assignment. This procedure allows the foreign employee in a senior managerial or specialized knowledge role to be temporarily assigned (up to five years) to a subsidiary, branch, or an affiliate in Italy (sending and host companies should be part of the same business group or a joint-venture group).

ICT work permits. Intra-corporate transfer work permit for managers, specialists, trainees temporary seconded from a company established outside the European Union where the worker is employed since at least three months before transfer to a host entity established in Italy as part of the same group. Maximum duration is three years for managers and specialists, one year for trainees.

Details: “Italy Work Permits for Temporary Assignments,” https://www.mazzeschi.it/2018/11/21/temporary-assignments-work-permits-for-highly-skilled-workers/

2. BELGIUM

Belgium has announced 2020 gross salary thresholds.

The gross salary thresholds for work and single permits are updated every year.

The salary thresholds vary by region (Brussels, Flanders, or Wallonia) and by category of employee (e.g., highly skilled employees, executives). In general, the region with jurisdiction is determined on the basis of the primary workplace of the foreign national in Belgium, or the location of the registered office of the company, if the primary workplace of the foreign national cannot be defined.

From January 1, 2020, onward, the following gross salary thresholds apply:

Category	Flanders	Brussels	Wallonia
Highly Skilled	42,696 € (exception: 34,156.80 € for locally employed < 30 years or nurses)	42,869 €	42,869 €
Executives	68,314 €	71,521 €	71,521 €
Blue Cards	51,235 €	55,431 €	55,431 €

The gross salary includes all payments to the employee in consideration for work: the amounts must be known with certainty to the employer, the employee, and the Belgian authorities before the start of the employment in Belgium. The fact that the amount must be certain excludes discretionary bonuses. In Wallonia, contributions paid for professional supplementary pension schemes are not taken into account either.

In the event of assignment, allowances, directly linked/specific to the assignment, are considered part of the salary, provided they are not paid in reimbursement of expenditures actually incurred on account of the assignment, such as expenditures on travel, lodging, and board. Travel, lodging, and board allowances are thus not considered salary. Moreover, employers must guarantee the salary in euros regardless of payroll location and/or exchange rate fluctuations.

3. CANADA

Québec attestations are now required for permanent immigrant applicants. Also, there is an update on the parent/grandparent sponsorship program.

Québec Attestations

Effective January 1, 2020, all permanent immigrant applicants under an economic program to the province of Québec (except children under 18) must provide the Québec immigration department with an “attestation of learning about democratic values and the Québec values expressed by the Charter of Human Rights and Freedoms.”

The Québec government says knowledge of the values it reflects is essential to an immigrant’s integration into the province.

There are two ways to obtain the attestation:

Complete a 24-hour integration course; or
Pass an online test of 20 questions (the pass rate is 75%).

The Québec government summarizes the five key principals underlying the attestation:

Québec is a French-speaking society
Québec is a democratic society
Equality between women and men
Rights and responsibilities of all Québecers
Québec is a secular society

Details:

Parent/Grandparent Sponsorship Program

The number of overall planned permanent admissions to Canada for 2020 is 340,000 people (just under one percent of the population of Canada). Of the 340,000 Canada is planning to admit, 21,000 are in the parent and grandparent sponsorship category.

On December 30, 2019, Immigration, Refugees and Citizenship Canada (IRCC) announced that the parent/grandparent sponsorship program would not be opening in January 2020: “To ensure that [IRCC] has sufficient time to complete the development of a new intake process for the 2020 Parents and Grandparents Program, the reopening of the program will be postponed until Ministerial Instructions are issued.” It was also announced that the expression of interest to sponsor a parent/grandparent that will be launched in 2020 will give a fair chance to all interested sponsors.

In 2019, IRCC was criticized as the expression of interest to sponsor filled up within seven minutes of its January 28, 2019, opening. It is anticipated that the 2020 expression of interest to sponsor a parent/grandparent will be on a lottery basis (with possible weight/advantage given to those who have previously attempted to sponsor a parent/grandparent).

Until the new intake management process is implemented, IRCC will not accept any new applications. This will ensure that all interested sponsors have the same opportunity to submit an interest to sponsor form, and a fair chance to be invited to apply.

Details:

4. COLOMBIA

This article provides information about several aspects of Colombian immigration.
Digital Nomads
In recent years, technology has revolutionized the lifestyles of many people. The labor field is no stranger to these changes. Every day it is common to see how workers and employers join forces to find the desired balance between personal and work lives. Nowadays, thanks to digital tools such as cloud applications, laptops, smart phones, and the internet, among others, it is feasible to develop different activities without having to physically stay in the office.
Details: http://www.tannus.co/en/digital-nomads-in-colombia/
Colombian Nationality for Venezuelan Minors
In accordance with the provisions of article 96 of the Colombian Constitution, nationals by birth are nationals of Colombia when the father or mother was a Colombian citizen or national or, being the child of foreign nationals, one of their parents was domiciled in Colombia at the time of birth. Likewise, children of Colombian parents who were born abroad and then live in Colombia or are registered at a consulate are nationals of Colombia.
Details: https://www.asuntoslegales.com.co/analisis/rodrigo-tannus-serrano-510256/nacionalidad-para-menores-venezolanos-2900998
Notifications of Foreigners in RUTEC and SIRE
SIRE and RUTEC gather certain information to control the foreign population. However, there are certain differences between them, among others, such as: (1) the entities in charge of each of the registration systems; and (2) RUTEC going beyond the notification of hiring or contract termination of foreign workers, since labor migration policy will be constructed at least in part based on the information collected. SIRE and RUTEC are not exclusive, which is why the registration of information in both systems must be complied with, under penalty of sanctions.
Details: https://www.asuntoslegales.com.co/analisis/rodrigo-tannus-serrano-510256/notificaciones-de-extranjeros-en-rutec-y-sire-2911964
Orange Economy and Migration
The “orange economy” is a term that has become popular in Colombia in recent years. The idea is to develop, through the creation, production, and distribution of goods and services, technological, artistic, cultural, and creative content to generate wealth by progressively participating in the GDP. Although the government’s drive is from a national perspective, there is significant leverage for the development of this economy by various foreign agents. It is for this reason that the migratory field becomes relevant in this aspect, since musicians, actors, producers, and sportspeople, among others, will have to take into account the existing Colombian permits or visas with a view to entering and staying in Colombia legally.
Details: http://www.tannus.co/en/orange-economy-and-migration/
Degree Validation Process Update
To increase the speed and efficiency of the process of legalization of degrees for use abroad, validation of foreign degrees, and qualified registration, the Ministry of National Education issued on October 9, 2019, Resolution 010687, which establishes and/or modifies the requirements and processing times, taking into account the increasing migration of foreign professionals as well as the return of Colombians who have studied abroad.
Reform of Entry and Residence Permits
Resolution 3167 of 2019, issued by Migración Colombia, establishes new guidelines for the entry, stay, and departure of Colombian nationals and foreigners from the national territory. This new resolution reorganizes the entry and stay permits (PIP) in three categories, which allows foreigners of unrestricted nationalities to enter the country for short periods without the intention of establishing a domicile or profiting. The length of stay of PIPs varies according to each category.
Details: http://www.tannus.co/en/reform-of-entry-and-residence-permits/

5. INDIA

There has been confusion about renewals of the Overseas Citizenship of India (OCI) card. The Indian government has announced a temporary relaxation of OCI renewal guidelines.

In recent times, there has been much confusion with respect to the renewal of OCI cards. Airlines have on many occasions not allowed passengers to board flights to India if their OCI cards were not renewed when their passports were renewed. The OCI, which is given to persons of Indian origin who have the citizenship of another country (other than Pakistan and Bangladesh), allows the card holder to live and work in India indefinitely. The OCI also exempts from reporting to police authorities for any length of stay in India. The OCI also provides parity with Non-Resident Indians in financial, economic, and educational fields, except in the acquisition of agricultural or plantation properties. A person registered as an OCI is eligible to apply for grant of Indian citizenship under section 5(1)(g) of the Citizenship Act, 1955, if he or she is registered as OCI for five years and has been residing in India for one year out of the five years before making the application.

According to the Ministry of External Affairs (MEA), the following guidelines have been in force since 2005 with respect to OCI renewals:

The OCI card must be reissued each time a new passport is acquired by the cardholder up to the age of 20 years.
The OCI card must be reissued once upon acquiring a new passport after completing 50 years of age.
Reissuance of the OCI card is not required each time a passport is issued to a cardholder between the ages of 21 and 50.

However, these guidelines were relaxed in recent years. Even if the OCI was not renewed in the event of obtaining of a new passport, the OCI was accepted as a valid lifelong document with no expiration date especially after the Indian government stopped issuing the U visa sticker in the person’s passport. It seems that the Indian government began to enforce its 2005 guidelines more strictly in late 2019, resulting in many instances of people having difficulty boarding flights if the OCI was not renewed in accordance with these guidelines.

The MEA, as a result, has issued the following relaxation of its guidelines until June 30, 2020, in the following cases:

In case an OCI card holder below the age of 20 years has not gotten the OCI card re-issued on change of passport, he or she may travel on the strength of his or her existing OCI card bearing the old passport number, subject to the condition that along with the new passport, the OCI cardholder carries the old passport mentioned in the OCI card.
In case an OCI card holder who has attained the age of 50 years and has gotten his or her passport renewed subsequently but has not gotten his or her OCI card reissued on renewal of his or her passport, he or she may travel on the strength of the existing OCI card along with the old and new passports.

Notwithstanding the relaxation in guidelines, the MEA advises OCI cardholders to renew their cards per the 2005 guidelines. Anecdotal evidence suggests that airlines are following the relaxed guidelines unevenly.

The Ministry of External Affairs press release relaxing the 2005 OCI guidelines is available at https://mea.gov.in/press-releases.htm?dtl/32222/Press+release+on+Relaxation+in+OCI+Guidelines+till+30th+June+2020.

The Ministry of External Affairs 2005 OCI guidelines are available at https://mha.gov.in/PDF_Other/GuidelinesOCIMiscservices_15112019.pdf.

The Ministry of External Affairs document on the OCI scheme is available at https://www.mea.gov.in/overseas-citizenship-of-india-scheme.htm.

6. TURKEY

The Republic of Turkey has released updated minimum salary amounts. Also, there has been an update regarding limitations on renewals of Touristic Residence Permits.

2020 Salary Requirements

As of January 1, 2020, the amounts are:

Gross minimum monthly wage: 2.943,00 Turkish Lira
Net minimum monthly wage: 2.324,70 Turkish Lira

* 1 TL = 0.17 $USD (approx. January 2020)

Aside from this minimum salary requirement, immigration law requires that the salary paid must be commensurate with the position considered. Specifically:

High-level managers and pilots cannot be paid less than 6.5 times the minimum wage (or 19.129,50 TRY gross/mo);

Department managers and engineers/architects cannot be paid less than 4 times the minimum wage (or 11,772,00 TRY gross/mo);
Positions requiring expertise (note: undefined) and teachers cannot be paid less than 3 times the minimum wage (or 8.829,00 TRY gross/mo);
Tourism Industry employees such as acrobats/similar and masseurs/spa therapists cannot be paid less than 2 times the minimum wage (or 5.886,00 TRY gross/mo);
All others (e.g., sales officer, low-level marketing officer) cannot be paid less than 1.5 times the minimum wage (or 4.414,50 TRY gross/mo); and
Household workers cannot be paid less than the minimum wage.

Update re Limitations on Renewals of Touristic Residence Permits

The Migration Directorate (MD) had announced on its website that as of January 1, 2020, it would not consider renewals of Touristic Residence Permits (RP) that had been issued for one year. According to reports, there may be possible discretionary actions to limit applicability of this significant restriction. Multiple MD sources said they anticipate an internal communique to lift the ban on renewals for nationals of the Organisation for Economic Co-operation and Development (OECD), but this has not yet been confirmed officially.

7. RUSSIA

This article provides an update on immigration-related developments in Russia.

Quota for engaging foreign labour in 2020 is approved. The Russian government has approved the quota for engaging foreign labor in 2020, set at 104,993 foreign nationals, a decrease from 2019, when the quota was 144,583.

Croatia—simplification of visa formalities . The Russian government has signed an agreement with the government of the Republic of Croatia regarding an amendment of the agreement between the two countries on mutual travel of citizens of the Russian Federation and Republic of Croatia. According to the new text of the agreement, citizens of each of these countries will be able to stay in the other country without visas for 90 calendar days out of each 180 days.

The agreement will come into force within 30 days from the date when the last notification is received confirming the completion of in-country ratification procedures.

Qatar—mutual cancellation of visa requirements . The government of the Russian Federation has signed an order in support of an agreement with the government of the State of Qatar on mutual cancellation of visa requirements for their citizens. According to the draft agreement, citizens of the State of Qatar will be able to enter Russia without visas for the period of 90 days out of each 180 days, provided they do not engage in work activities, study, or permanently reside in Russia. Similar privileges will be enjoyed by Russian citizens upon entry to Qatar.

The agreement remains under discussion and is not yet in force.

Agreement with the Republic of Tajikistan regarding organized recruitment of Tajik citizens for temporary work in Russia has been ratified. Federal law has ratified an agreement between the governments of the Russian Federation and the Republic of Tajikistan regarding organized recruitment of Tajik citizens for temporary work in the territory of the Russian Federation.

The agreement emphasizes the priority of collective employment of Tajik citizens in Russia, although the agreement does not prohibit Tajik citizens from searching for employment individually.

Practically, this means that a Tajik citizen who would like to work in Russia will file an application with the responsible government agency in Tajikistan. This agency will:

Review the application;
Inform about open vacancies in Russia;
Discuss candidates for employment with the employer in Russia;
Help with preparation for exams: Russian language, history, basics of legal knowledge;
Conduct medical tests;
Review candidates’ criminal history;
Discuss the text of the labor agreement with the employer; and
Organize transport to Russia and back.

Additionally, the responsible agency in Tajikistan will sign agreements with employers in Russia for the collective supply of candidates for open vacancies.

The Russian Labour Ministry will be responsible for maintaining a computer database with all information on open vacancies, and for vetting prospective employers.

The international agreement in question confirms the need for Tajik citizens to apply for work permits to work in Russia. It also confirms that such a work permit can be extended for its term without the need for the foreign national to leave Russia. It also does not state any limits on extensions.

Currently Tajik citizens work in Russia on the basis of either (1) patents for which they apply individually and which can be extended only once or (2) highly qualified specialist (HQS) work permits (application is filed by the employer). If a Tajik citizen is the holder of an extended patent, he or she must leave Russia and re-enter again in order to apply for the patent anew.

UEFA 2020—exit rules for football fans approved . The Russian government has signed an order on the approval of exit rules for foreign citizens and stateless persons who entered the Russian Federation as football spectators for events of the Union of European Football Associations (UEFA) 2020. This includes foreign citizens who entered Russia as spectators of UEFA 2020 events without visas using valid personal ID documents and personalized spectator cards (fan IDs issued by the ministry of digital development, communications and mass communications) from May 30, 2020, to July 13, 2020. All foreign fans must leave the country by July 13, 2020. Staying after this date without a legally valid reason will result in administrative punishment according to Russian law.

Foreign fans must exit using valid ID documents, after border control officers establish the fact that the person entered Russia on the basis of the personalized spectator card (fan ID).

Similar rules of entry and exit applied during Fédération Internationale de Football Association (FIFA) World Cup 2018.

UEFA 2020—work permit procedure simplified. The Russian government has approved rules for simplified and speedy work permit procedures for UEFA 2020 workers. Procedures for the following were simplified:

Corporate work permits (permits for engagement of foreign citizens);
Work permits;
Patents;
Invitation letters

Simplified procedures will be applicable to foreign citizens and stateless persons who work on the basis of labor agreements or civil agreements, and who perform work activities for the following organizations:

UEFA;
UEFA subsidiaries;
UEFA media organizations;
UEFA suppliers;
UEFA commercial partners;
Local organizational structure;
Russian Football Association;

Applications can be submitted without allocated quotas for 2020. The Ministry of Sport will submit to the Federal Security Service by the fifth of every month a list of companies and persons (employers) for approval. The approved list then will be sent to the Ministry of Internal Affairs, which will use it to issue work permits, corporate work permits, and invitation letters using the simplified procedure. The Ministry of Sport will submit to the Federal Security Service and the Internal Affairs Ministry a list of foreign citizens by the 20^th of each month. Applications will be reviewed within 7 to 15 days.

Corporate and personal work permits will be issued within 15 days from the date of application filing. Applications for patents will be issued within seven days. Applications for issuance of work permit duplicates will be issued within five days and patent duplicates within two days. Applications for invitation letters will be reviewed within 15 days. Refusal confirmations will be issued within two days.

These rules are effective as of January 12, 2020.

Quota 2020 has been divided among the Russia n regions. The Ministry of Labour has issued an order on the division of the quota for the engagement of foreign labor established by the Russian government for year 2020 among the Russian regions.

Total number of work permits: 104,993
For Moscow: 3,821
For Moscow Region: 4,256
For Saint-Petersburg: 3,273
For Leningradskaya Region: 446

The order divides approved quota numbers among all Russian regions as well as professional groups.

“Work in Russia” job vacancies database—approved information requirements and rules for verification. The Russian database of job vacancies, “Work in Russia,” is an information-analytical system created by the Ministry of Labour and Social Development. The Ministry of Justice approved an order issued by the Ministry of Labour and Social Development.

The database contains:

Information about employers (according to the rules, such information should match the Unified State register of legal persons);
Information on vacancies (according to the rules, such information should not contain any discrimination based on sex, age, nationality, etc.); and
Information regarding citizens who look for work.

Information is verified by employees of the territorial labor office. Services for citizens who are looking for work are free of charge.

8. UNITED KINGDOM

It’s happened: The United Kingdom (UK) officially left the European Union (EU) on January 31, 2020. Now what?

What does this mean for people moving to and from the UK?

Nothing for now. We are in a transition period until at least December 31, 2020.

During the transition period, EU law continues to apply to the UK, which means that EU citizens can live and work in the UK in exactly the same way as before. The same applies to other European Economic Area (EEA) nationals (nationals of Norway, Iceland, and Liechtenstein) and Swiss nationals. British citizens also keep their free movement rights in EEA states and Switzerland during the transition period.

The British government insists that the transition period will not be extended. If there is to be an extension, this must be agreed upon before July 1, 2020.

What will happen to EU citizens already living in the UK?

EU citizens who move to the UK before the end of the transition period will be able to stay as long as they apply for the EU Settlement Scheme. The deadline for applying is June 30, 2021.

Irish citizens do not have to apply for the EU Settlement Scheme. They will still be free to live and work in the UK after the transition period. The same goes for British citizens in Ireland.

What will happen to British citizens already living in the EU?

British citizens who start exercising a right of residence in another EU Member State before the end of the transition period will be able to stay, but they need to register with the authorities. The process varies from country to country.

What will the UK’s immigration system look like after the transition period?

The British government says that after the transition period, the same rules for work visas will apply to EU citizens as to everyone else. We do not yet know what those rules will be.

The British government’s Migration Advisory Committee (MAC) published a report on January 28, 2020, that warned against replacing the current system of sponsored visas for highly skilled workers (Tier 2) with an Australian-style points-based system. The MAC recommended keeping the Tier 2 model but with significant changes, including lowering the skills threshold to include medium-skilled jobs and lowering the main salary threshold from £30,000 to £25,600.

If the British government follows these recommendations, it will be far easier for employers to sponsor people for work visas, but it will be expensive. Fees for Tier 2 visas are already high and there are no plans to lower them. If anything, they will increase. Employers who rely on EU citizens to fill medium- and high-skilled roles will be spending a lot of money on visas.

There will need to be new immigration routes for low-skilled workers, at least in the short term. We do not yet know what those will be.

Details:

Kingsley Napley alert, https://www.kingsleynapley.co.uk/insights/news/the-uk-leaves-the-eu-today-at-11pm-gmt
EU Settlement Scheme and how to apply, https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status
Guide to what EU citizens living in the UK need to know, https://www.kingsleynapley.co.uk/services/specialist-group/brexit/brexit-what-eu-citizens-living-in-the-uk-need-to-know

MAC report, “A Points-Based System and Salary Thresholds for Immigration,” https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-points-based-system-and-salary-thresholds

9. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

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

10. ABIL Member / Firm News

The following ABIL members were included as WWL Thought Leaders for Corporate Immigration 2020. For details, see https://whoswholegal.com/thought-leaders/thought-leaders-corporate-immigration:

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US)

Bernard Caris (bio: https://www.abil.com/lawyers/lawyers-caris.cfm?c=BE)

Barbara Jo Caruso (bio: https://www.abil.com/lawyers/lawyers-caruso.cfm?c=CA)

Maria Celebi (bio: https://www.abil.com/lawyers/lawyers-celebi.cfm?c=TR)

Francis Chin (bio: https://www.abil.com/lawyers/lawyers-chin.cfm)

Eugene Chow (bio: https://www.abil.com/lawyers/lawyers-chow.cfm?c=HK)

Arnold Conyer (bio: https://www.abil.com/lawyers/lawyers-conyer.cfm?c=AU)

Laura Danielson (bio: https://www.abil.com/lawyers/lawyers-danielson.cfm?c=CN)

Laura Devine (bio: https://www.abil.com/lawyers/lawyers-devine.cfm?c=UK)

Rami Fakhoury (bio: https://www.abil.com/lawyers/lawyers-fakhoury.cfm?c=US)

Steven Garfinkel (bio: https://www.abil.com/lawyers/lawyers-garfinkel.cfm)

Ana Garicano (bio: https://www.abil.com/lawyers/lawyers-garicano.cfm?c=ES)

Avi Gomberg (bio: https://www.abil.com/lawyers/lawyers-gomberg.cfm?c=CA)

Kehrela Hodkinson (bio: https://www.abil.com/lawyers/lawyers-hodkinson.cfm)

Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm)

Kirby Gamblin Joseph (bio: https://www.abil.com/lawyers/lawyers-joseph.cfm?c=US)

Jelle Kroes (bio: https://www.abil.com/lawyers/lawyers-kroes.cfm?c=NL)

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm)

Marco Mazzeschi (bio: https://www.abil.com/lawyers/lawyers-mazzeschi.cfm?c=IT)

Gunther Mävers (bio: https://www.abil.com/lawyers/lawyers-mavers.cfm?c=DE)

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm)

Bettina Offer (bio: https://www.abil.com/lawyers/lawyers-offer.cfm?c=DE)

Ariel Orrego-Villacorta (bio: https://www.abil.com/lawyers/lawyers-orrego-villacorta.cfm?c=PE)

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm)

Julie Pearl (bio: https://www.abil.com/lawyers/lawyers-pearl.cfm)

Nicolas Rollason (bio: https://www.abil.com/lawyers/lawyers-rollason.cfm?c=UK)

Karl Waheed (bio: https://www.abil.com/lawyers/lawyers-waheed.cfm?c=FR)

Chris Watters (bio: https://www.abil.com/lawyers/lawyers-watters.cfm?c=ZA)

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US)

Rami Fakhoury (bio: https://www.abil.com/lawyers/lawyers-fakhoury.cfm?c=US) was also listed in Marquis Who’s Who for 2020. For details, see https://www.24-7pressrelease.com/press-release-service/469101.

Klasko Immigration Law Partners, LLP, has published a client alert. “Comprehensive Regulatory Change to Employment-Based Immigration in 2020” is at .

Klasko Immigration Law Partners, LLP, announced that Allie K. Dempsey has joined the firm as a senior associate attorney in its Philadelphia office. Ms. Dempsey provides comprehensive legal advice to corporate and individual clients on a range of immigrant and nonimmigrant matters and has significant experience in employment-based immigration matters. Klasko has offices in Philadelphia and New York and provides top-tier legal services to individuals, multinational corporations, small companies, universities, and hospitals.

Laura Rosmarin has been promoted to Partner in the Atlanta, Georgia, office of Kuck Baxter Immigration LLC. She directs the firm’s Business Immigration Department. Ms. Rosmarin has more than 20 years of experience working with businesses and individuals in securing temporary and permanent working and investment visas. Her clients include companies, academic institutions, hospitals, individuals, and families. She has represented corporate executives, professional athletes, engineers, physicians, entertainers, international students, and many professionals in various fields. Ms. Rosmarin received her B.A. degree, cum laude, from Boston University, and her J.D. degree from Emory University Law School. For more on Kuck Baxter Immigration LLC, see https://www.immigration.net/.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has authored several new blog entries. “Ethical Dimensions to Federal Court Litigation in Immigration Matters” is at http://blog.cyrusmehta.com/2020/01/ethical-dimensions-to-federal-court-litigation-in-immigration-matters.html. “The Fascinating Confluence of Temporary Protected Status, Removal and Employment-Based Adjustment of Status” is at .

Rodrigo Tannus (bio: https://www.abil.com/lawyers/lawyers-tannus.cfm?c=CO) was included in Chambers Latin America, which quoted a client as saying that Mr. Tannus gives “concise, clear and direct“ advice and noted that Mr. Tannus focuses his practice on the immigration aspects of labor law.

Mr. Tannus was included in Legal 500 Latin America, which stated that “[r]eputable boutique Tannus & Asociados is highly specialized in immigration matters, assisting companies with establishing their presence in Colombia, and undertaking audits, due diligence, training and procedures before the various competent entities. Founding partner Rodrigo Tannus heads the team, which is currently assisting Red Clay and Wildlife Works with setting up their operations in the country.”

Wolfsdorf Rosenthal LLP is expanding its operation in the San Francisco Bay Area with the addition of new partner Farshad Owji, who will lead the San Francisco office, together with WR Partner Charina Garcia in Oakland. Mr. Owji will provide full-service visa and global relocation services. For more information, see https://wolfsdorf.com/blog/news_posts/wr-continues-to-grow-in-san-francisco-and-welcomes-farshad-owji-as-partner/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Newsweek in “CBP Accused of Acting ‘Above the Law’ After Forcing Iranian Student With Visa to Board Flight Back Home, Despite Emergency Stay.” Mr. Yale-Loehr said he was disturbed to hear not only about the Iranian student’s story but also of reports of dozens of Iranian Americans claiming to have been detained and questioned at a border crossing in Washington state recently. He said the incidents raised concerns that the United States might be “doomed to repeat past mistakes. For example, we now realize that interning U.S. citizens of Japanese descent during World War II was a mistake. Congress even passed a law in 1988 apologizing for the internments and making reparations. Similarly, detaining people of Muslim descent after the 9/11 terrorist attacks and making them go through special registration procedures failed to yield any significant results in finding and deterring other terrorists. As Benjamin Franklin once said: ‘Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The article is at https://www.newsweek.com/cbp-facing-backlash-iranian-student-refused-entry-despite-visa-stay-removal-1483499. Mr. Yale-Loehr was also quoted on other topics by various media outlets:· Los Angeles Times: ” ‘I have lost everything’: Iranian Students With Valid Visas Sent Home Upon Arrival at U.S. Airports”; https://www.latimes.com/world-nation/story/2020-01-29/iranian-student-visas. Mr. Yale-Loehr said the difficulties that Iranian students currently face are part of a “disturbing trend we’ve seen before.” After Iranians stormed the U.S. Embassy in Tehran in 1979, he said, Iranian students in the United States had to register with immigration officials or risk deportation. More recently, he noted, the detention of “people of Muslim descent” after the September 11, 2001, terrorist attacks “failed to yield any significant results in finding and deterring other terrorists.”· Law360: “Public Charge Order Sparks Confusion for Immigration Attorneys”; https://www.law360.com/health/articles/1238271/public-charge-order-sparks-confusion-for-immigration-attys. Unknowns have left attorneys to guess at the best course of action for clients who wish to sponsor family members for green cards, the article notes. “Nobody knows what to do. It’s very confusing. Everybody is scratching their head trying to figure out what to advise their clients, Mr. Yale-Loehr said. · Colorado Public Radio: “In Limbo For Years: U.S. Military Recruited Non-Citizens, But Hasn’t Allowed Them To Serve”; https://www.cpr.org/2020/01/29/in-limbo-for-years-us-military-recruited-non-citizens-but-hasnt-allowed-them-to-serve/. Hundreds of immigrants are fighting to be admitted into the U.S. armed forces, this article notes. The government recruited them into a program started in 2008 called Military Accessions Vital to the National Interest (MAVNI), which targeted noncitizens with skills the military needed, such as medical training or expertise in certain foreign languages. The administrationn has “effectively killed the MAVNI program by imposing all kinds of delays and arbitrary reasons for denial,” Mr. Yale-Loehr said, adding that he is mystified by how the larger group is being treated. “Given the tight labor market generally in the United States and the problems that the military is having in meeting its recruiting goals, foreign nationals are an important component to our military,” he noted.· Times of India, re H-1B lawsuit: https://timesofindia.indiatimes.com/business/india-business/lawsuit-alleges-us-illegally-collected-350-million-in-visa-fees-from-tech-companies/articleshow/73686056.cms. Mr. Yale-Loehr said the lawsuit is important for two reasons: “First, it tries to force the USCIS to follow the plain language of the immigration law, and not effectively change the law by overly expansive interpretations. Second, the lawsuit is important because if the plaintiffs win, the USCIS could be forced to repay U.S. companies about $350 million in excess visa fees paid over the last six years.”· Articles re Supreme Court allowing public charge rule to take effect:- Associated Press: many outlets, including https://www.koaa.com/news/national-world-news/supreme-court-allows-enforcement-of-new-green-card-rule. “The public charge rule is the latest attack in the Trump administration’s war on immigrants,” Mr. Yale-Loehr said. “It makes it harder for working-class people to immigrate to or stay in the United States. This rule is another brick in the invisible wall this administration is building to curb legal immigration.”- Univision: https://www.univision.com/noticias/politica/la-corte-suprema-permite-al-gobierno-aplicar-la-regla-de-carga-publica-que-facilita-negar-la-residencia-y-ciudadania– Voice of America: https://www.voanoticias.com/a/corte-suprema-negar-tarjeta-verde-migrantes/5262465.html– New York Daily News: https://www.nydailynews.com/news/politics/ny-immigrants-trump-benefits-supreme-court-20200127-zqbn3uro4vfyvllfadsqxwpsiu-story.html– Newsday: https://www.newsday.com/long-island/politics/trump-bolton-book-witness-impeachment-scotus-immigration-benefits-netanyahu-1.41121631· Detroit News, re Iranian student turned back in Detroit, Michigan: https://www.detroitnews.com/story/news/local/michigan/2020/01/27/iranian-student-msu-detained-sent-home/4593825002/. In addition to the student denials, earlier this month, many U.S. citizens of Iranian descent were questioned for hours trying to return from Canada, Mr. Yale-Loehr noted. “We seem doomed to repeat past mistakes. For example, we now realize that interning U.S. citizens of Japanese descent during World War II was a mistake. Congress even passed a law in 1988 apologizing for the internments and making reparations.”· Lansing State Journal, re Iranian student turned back in Detroit: https://www.lansingstatejournal.com/story/news/2020/01/27/michigan-state-msu-student-faces-deportation-iran/4589759002/. Deporting or pressuring Iranian students to leave the United States is part of a trend in restricting travel from Iran, Mr. Yale-Loehr noted. He pointed to the 2017 travel ban limiting travel from Muslim-majority countries and the increasing tensions between United States and Iranian forces after the December assassination of Iranian General Qasem Soleimani. “In the broader contexts, it’s just getting harder and harder to come to the United States from Iran,” he said. The Department of State thoroughly screens applicants’ backgrounds before issuing visas, a process that can take months, he noted. “Obviously there can be new facts that come to light between the time a person is issued a visa overseas and when they arrive in the United States that may justify [why] they may not be able to enter, but many times it seems to be antagonism toward Iranians that prompts [Customs] officials to go overboard to try to find excuses to prevent them from entering,” he said.

ABIL Global Update • February 2019

February 15, 2019/in Global Immigration Update /by ABIL

Headlines:

1. Feature Article: ENTERTAINERS AND SHORT-TERM ENTERTAINERS: AN OVERVIEW -This article provides an overview of provisions for entertainers and short-term entertainers in Canada and Italy.

2. EUROPEAN UNION -This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

3. ITALY -Italy has passed a decree on security and immigration. This article also briefly summarizes the plans for British citizens residing in Italy in the event of a Brexit no-deal.

4. TURKEY -This article discusses the process for citizenship in Turkey by real estate investment.

5. UNITED KINGDOM -This article discusses how the British government intends to treat European Union (EU) citizens, other European Economic Area (EEA) nationals, and Swiss nationals arriving in the United Kingdom (UK) after March 29, 2019, if the UK leaves the EU without a deal; the EU settlement scheme’s opening for a public test phase; plans for British citizens living in the EU in the event of a no-deal Brexit; the UK government’s plans for a single, skills-based immigration system that marks the end of free movement; and a new online system for right-to-work checks

6. New Publications and Items of Interest -New Publications and Items of Interest

7. ABIL Member / Firm News -ABIL Member / Firm News

Details:

1. Feature Article: ENTERTAINERS AND SHORT-TERM ENTERTAINERS: AN OVERVIEW

This article provides an overview of provisions for entertainers and short-term entertainers in Canada and Italy.

Canada

Canada is known as a popular destination for filmmakers and performing artists. Canada’s immigration law permits many entertainers and those working in the entertainment industry to work in Canada without a work permit or to obtain a work permit relatively easily by exempting them from obtaining a Labour Market Impact Assessment (LMIA).

Exemption from Work Permit

Section 186 of the Immigration and Refugee Protection Regulations outlines several situations in which a foreign national may work without a work permit. The ones relevant to the entertainment industry are:

186(a): Film producers employed by foreign companies for commercial shoots, and essential personnel (e.g., actors, directors, technicians) entering Canada for short durations (typically no longer than two weeks) for a foreign-financed commercial (i.e., advertising) shoot (for television, magazines, or other media).
186(g): A performing artist appearing alone or in a group in an artistic performance—other than a performance that is primarily for a film production or a television or radio broadcast—or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if (i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a time-limited engagement, and (ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services.
186(m): A judge, referee, or similar official at an international cultural or artistic event.

There is also a short-term work permit exemption based on the Global Skills Strategy public policy (15 calendar days once every 6 months or 30 calendar days once every 12 months) available to those working in highly skilled occupations (National Occupational Classification (NOC) Skill Type 0 or Skill Level A). Producers, directors, choreographers, and film editors are considered NOC A occupations.

Exemption from LMIA

There are several LMIA exemptions applicable to those in the entertainment industry:

Exemption code C14 (Significant Benefit—Television and film production workers) targets foreign nationals in the television and film industry whose position or occupation is essential to a TV or film production. Two support letters are required: one from the production detailing the significant economic benefit to Canada of the TV or film production, and the other from the union or guild confirming that the proposed work is subject to a collective agreement and that it has no objection to the proposed work arrangement.
Exemption code C10 (Significant Benefit—General Guidelines) applies to any foreign national whose employment in Canada would create significant social, cultural, or economic benefit (examples include national or international awards, membership in organizations requiring excellence of its members, and general renown). Applications also must demonstrate that the foreign national’s employment will result in a neutral or positive impact on the Canadian labor market, and that the circumstances justify the issuance of a work permit in a timeframe shorter than that required to obtain an LMIA.
Exemption code C23 (Reciprocal Employment—Performing Arts) targets key creative personnel and talent associated with Canadian nonprofit performing arts companies and organizations in the orchestral music, opera, live theater, and dance disciplines. The employer must be a current recipient of core or composite funding from the Canada Council for the Arts or of financial support via parliamentary appropriation, such as the National Arts Centre. The application must include evidence from the applicable Canadian performing arts representative or service organization that reciprocal international opportunities exist for Canadians in the discipline. Examples of organizations include the Canadian Actors’ Equity Association, the Canadian Federation of Musicians, and the Canadian Actors’ Equity Association.
Exemption code C20 (Reciprocal Employment—General Guidelines) permits foreign nationals to obtain a work permit if similar reciprocal opportunities abroad exist for Canadians and if the foreign national’s employment would result in a neutral labor market impact. A Canadian performing arts organization that has a cultural exchange program with a foreign performing arts organization may be able to use this exemption code if it can show that Canadian members are currently participating in the exchange program abroad. Exact reciprocity (one Canadian member abroad for one foreign member in Canada) is not required but the general order of magnitude of exchanges should be reasonably similar on an annual basis.

All LMIA-exempt work permits require the employer to submit an Offer of Employment through the Employer Portal and pay a $230 employer compliance fee. The foreign national must pay a $155 work permit processing fee and, if not a U.S. citizen, an $85 biometrics fee.

Lastly, individuals who do not fit into either of the above categories would require a work permit based on an LMIA. While this would typically require the employer to publicly post the position for at least four weeks, there are certain situations in which the employer would be exempt from the advertising requirement, such as if the position is for a specific occupation in the entertainment sector where a worker is often hired for a very limited number of days, in a specific location, and on very short notice.

There is a $1,000 processing fee for the LMIA, which must be paid by the employer. Once issued, the foreign national must pay a $155 work permit processing fee and, if not a U.S. citizen, an $85 biometrics fee.

Italy

The information below summarizes the process for foreign performing artists, entertainers, and entertainment industry personnel wishing to work in Italy.

Artistic Subordinate Employment

Entry into Italy for the purpose of artistic subordinate employment is not subject to the “immigration quota” (i.e., the number of authorized entries for work reserved to foreign nationals set each year by the government) imposed each year by the Italian government and is regulated by Article 27, c.1 (l, m, n, o) of Italian immigration law. This means that subordinate work permit applications for entertainers can be applied for at any time of the year without being subject to limits. However, non-EU-national performing artists, entertainers, and entertainment industry personnel coming to Italy to perform their activities are not exempt from applying for work authorization and a related visa and permit. The following categories of artistic workers can apply for this type of work permit:

Circus workers and other traveling performers
Artistic and technical personnel for lyrical, theatrical, concert, or dance performances
Dancers, artists, and musicians working in established entertainment venues
Artistic and technical personnel for music, television, film, radio, and cultural production companies

The guidelines and requirements to apply for work permits for entertainment staff are outlined in Ministry of Labour and Social Policy circular letter n. 34 of December 13, 2006.

The work permit application is filed with a specific office within the Ministry of Labour and Social Policy. The crew/artists/staff/entertainers must be sponsored by an Italian entity/co-producer, even if they remain employees of the foreign company. In this case, the Italian entity/co-producer must be previously appointed by the foreign employer by means of a notarized “contract of agency” (Mandato di rappresentanza). It is vital that the sponsor/host entity in Italy provide evidence of compliance with fiscal and social security obligations. Artists, even if remaining hired above, must comply with the relevant social security obligations in Italy, unless otherwise established by bilateral social security agreements.

The work authorization is issued for an initial period not exceeding 12 months. An extension is possible under specific conditions. Once the work permit is issued and no later than 120 days from the date of issuance, applicants must obtain the relevant visa from the Italian consulate having jurisdiction over their place of residence abroad, then travel to Italy and apply for the residence permit within 8 days of arrival. In the case of artists/staff to be employed for no longer than 3 months, the work permit application can be filed even if the worker is already in Italy.

Steps of the process:

Work permit application. This is filed by the Italian company sponsoring the application. The Work Permit must be applied for directly at the Ministry of Labor’s relevant office in Rome.
Visa application. Once the work permit is issued, the visa application is filed by the applicant in person at the Italian consulate having jurisdiction over the applicant’s place of residence.
Entry into Italy. Within 8 days of arrival visa holders must register with authorities and file the residence permit application. Residence permit (permesso di soggiorno) application is filed at the Post Office which issues (1) postal receipt – official document until the actual residence permit (permesso di soggiorno) card is issued and (2) an appointment for identification & fingerprints at Police office.
Residence permit card. After fingerprints, the residence permit (permesso di soggiorno) card is processed; personal attendance is mandatory to collect the residence permit (permesso di soggiorno) card once issued.

Self-Employment

In case of entry for self-employment, a visa can be issued only to internationally well-known and highest-repute artists, artists of recognized high professional qualification, or artists who are hired by well-known Italian theaters, important public institutions, public television or well-known national private television entities (requirements set in Visa Decree May 11, 2011, n.850). This type of visa is subject to the “quota” limits.

Short-term visas (maximum 90 days) for artistic self-employment are issued outside the quota limits.

To be eligible for obtaining a self-employment visa as an internationally well-known and highest-repute artist, the applicant must:

Be an Internationally well-known and highest-repute artist or be an artist of recognized high professional qualification or be an artist hired by well-known Italian theaters, important public institutions, public television (RAI), or well-known national private television entities
Have self-employment contract(s) in place with an Italian impresario, company, institution, etc., with a compensation well above the minimum set forth for workers employed in the same sector in Italy
Not become an employee in Italy but work as a freelancer/self-employed
Obtain a clearance from the Italian Immigration Police
Have a suitable accommodation in Italy
Be covered by private health insurance

Steps of the process:

Obtain relevant supporting documents (e.g., self-employment contract, labor authority declaration) and submit them to obtain a police clearance from the relevant police office in Italy
Within three months from the date of issuance of supporting documents and the police clearance, file the visa application at the Italian consulate of reference
With the work visa, the applicant travels to Italy. Within eight days he or she must apply for a residence permit (permesso di soggiorno)
The residence permit (permesso di soggiorno) application is filed at the Post Office, which issues: (1) a postal receipt—an official document until the actual residence permit (permesso di soggiorno) card is issued; and (2) an appointment for identification and fingerprints at the police office. After fingerprints, the residence permit (permesso di soggiorno) card is processed; personal attendance is mandatory to collect this card once issued.

2. EUROPEAN UNION

This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

It has now been over two and a half years since the United Kingdom (UK) resolved in a referendum held on June 23, 2016, by a slim majority (51.9% to 48.1%), to leave the European Union (EU). Following submission of the written Withdrawal Declaration to the European Council on March 29, 2017, effective after two years, negotiations on the terms and conditions of the withdrawal were initiated with some delay. An initial breakthrough in the negotiations was achieved about a year ago, and the first draft of the UK-EU Withdrawal Agreement was presented in the spring. The debate nevertheless continued to be highly controversial. Finally, in November 2018, despite all the adversity, a decisive breakthrough was achieved. On November 14, 2018, the EU and the UK reached an agreement on the revised version of the Withdrawal Agreement, which includes a transitional arrangement until December 31, 2020, which may be extended once by mutual agreement for a period that has not been specified.

However, this arrangement can only enter into force once it has been ratified by both the UK and the EU. Unless the Council agrees otherwise with the withdrawing Member State, Article 50, para. 3, TEU, states that European contracts will no longer apply after two years from the date of the formal application, i.e., after March 28, 2019, unless all Member States mutually agree on an extension. This is commonly referred to as “hard BREXIT” or “no deal” and would be accompanied by significant trade barriers between the UK and mainland Europe, with huge economic ramifications.

All of this is reason enough to take a closer look at the effects of the withdrawal from a residency law perspective and to appraise the (probable) future legal situation.

What is the law now and what will it be in the future? “The deal”

With regard to the freedom of movement (for workers), it is first necessary to bear in mind the regulations that will continue to apply until at least March 29, 2019, under the current legal situation and what would (probably) change in the future under the Withdrawal Agreement.

Legal Situation Before the Withdrawal

UK citizens continue to be (even after the Withdrawal Declaration on March 29, 2017) EU citizens or, more precisely, citizens of the Union. Article 17 of the Treaty on the Functioning of the European Union (TFEU) states that any person who is a citizen of a Member State is also a citizen of the Union. This is the situation until two years after the declaration of withdrawal, i.e., until March 28, 2019. At present, this means that the privileges granted to UK citizens with regard to the right to free movement and residence (for workers) continue to apply. This includes the right of workers:

To apply for jobs offered on the market
To move unrestrictedly within the territory of the Member States for that purpose
To reside in a Member State in order to pursue employment there in accordance with the laws, regulations, and administrative provisions applicable to employees in that State
To remain within the territory of a Member State after having been employed there under conditions laid down by the Commission by means of regulations

However, these privileges with regard to the right to free movement and residence of workers will continue to apply without restriction for a period of two years (subject to a mutually agreed extension of this period) after the UK submitted its declaration of withdrawal.

Anticipated Legal Situation After the Withdrawal

The Withdrawal Agreement includes transition provisions (“Implementation Period”) until December 31, 2020, to mitigate the effects of the withdrawal on Union citizens and British citizens and contains the following detailed regulations:

Free Movement of Workers

EU citizens residing legally, temporarily, or permanently in the UK at the time of the EU withdrawal may continue to live, work (or become unemployed with no fault of their own, self-employed, study or seek employment within the meaning of Article 7(3) of the Free Movement Directive), or study in the UK. The same applies to British citizens who live in an EU member state.

Persons living temporarily or permanently in the United Kingdom at the time of the withdrawal or the date of the Withdrawal Agreement may also remain in the country. The same applies analogously to British citizens who are legally residing in an EU member state, including persons living with them in non-marital relationships. EU negotiators rejected a request by negotiators from the United Kingdom that a regulation be provided for with regard to British citizens who move to an EU member state after the date of record, stating that they had no mandate to provide for such regulation and that such matters would be provided for in a later agreement.

EU and UK citizens must be legal residents in the host Member State at the end of the transitional period in accordance with EU law on the free movement of persons. However, the Withdrawal Agreement does not require a personal presence in the host country at the end of the transitional period—temporary absences do not affect the right of residence, and longer absences that do not restrict the right of permanent residence are permitted.

According to the Withdrawal Agreement, the above rights will not expire after the transitional period. This means that Union citizens retain their right of residence essentially under the same substantive conditions as under the EU right of free movement, but must apply to the UK authorities for a new UK residence status. After five years of legal residence in the UK, the UK residence status will be upgraded to a permanent status with more rights and enhanced protection.

The same applies to British citizens who continue to legally reside in an EU Member State after a period of five years.

Family Members

EU citizens who are already legal residents in the UK either temporarily or permanently, at the time of the country’s withdrawal from the EU, have a right to family unification, including with family members who do not live with them yet. In addition to spouses (or persons with equivalent status), this also concerns parents and children (including children born after the date of record). The applicable regulations under national law will apply to any other family members.

Social Security

EU citizens who are already living in the United Kingdom at the time of the country’s withdrawal from the EU, as well as British citizens who live in an EU Member State, will retain their entitlements from health and pension insurance plans, as well as other social security benefits, or these entitlements are mutually taken into account.

Administrative Procedures

The United Kingdom promises its resident EU citizens a special residential status that secures their rights and can be applied for easily and at a low cost. EU citizens living permanently or temporarily in the United Kingdom can have their status clarified by the responsible administrative authorities until two years after the date of record. Decisions are to be made exclusively on the basis of the Withdrawal Agreement, without any further discretionary powers. The procedure is proposed to be quick, simple, convenient, and free of charge.

Case Law

Under the Withdrawal Agreement, the European Court of Justice (ECJ) retains jurisdiction for pending cases and questions referred by British courts until the end of the transitional period. EU citizens can only litigate their rights before British courts; these courts, however, will give consideration to the case law of the ECJ for a transitional period of eight years after the expiration of the transitional period, and may also continue to submit questions to the ECJ.

Right to Permanent Residency

The right of EU citizens to permanent residency after they have been in the UK for five years will be retained, with regulations under European law continuing to be authoritative for the eligibility requirements. Time spent in the country before the withdrawal will be taken into account, and periods of temporary absence (of up to six months within a period of 12 months) from the United Kingdom for important reasons will not count toward this period. EU citizens living outside of the UK will only lose their right of permanent residency after a period of five years. Existing permanent residency permits are proposed to be converted free of charge, subject to an identity check, a criminal background and security check, and the assurance and confirmation of ongoing residency.

The State of Play

The road to the possible conclusion and entry into force of the Withdrawal Agreement remained rocky as of January. To make things worse, all of this played out in a political minefield. Once the EU adopted the Withdrawal Agreement, it was the UK’s turn. The Parliament’s decision on the adoption of the Withdrawal Agreement was initially scheduled for December 11, 2018. In the meantime, however, British Prime Minister Theresa May held a crisis meeting and announced that she was postponing the vote until an unspecified later point in time. This was probably because recent surveys indicated that the Withdrawal Agreement would fail to attract a majority. The British Parliament ultimately rejected Prime Minister May’s Brexit deal on January 15, 2019.

The EU reiterated that the bloc would not be available for renegotiations on the Withdrawal Agreement. In the meantime, Ms. May held talks with German Chancellor Angela Merkel in Berlin and with leaders of other EU member states in Amsterdam, Holland, and Brussels, Belgium. So far, these talks were without success. It was more than symbolic that Ms. May was unable to disembark upon arrival in Berlin due to a technical defect that prevented her car’s door from being opened. The times in which a “handbag” moment (this refers to former UK Prime Minister Margaret Thatcher, who “forced” a decision in a brash appearance in Brussels) is enough to persuade the EU to give in seem to be over. There was unanimous consent on the EU side that renegotiations were categorically excluded. The political pressure on Ms. May’s shoulders remains as heavy as it could possibly be despite having survived the vote of no confidence on December 12, 2018.

A further possible way out of this dilemma that has been suggested by the ECJ did not come as a surprise, given the opinion of the Advocate General published recently. In its judgment handed down on December 10, 2018, the ECJ, on the basis of a referral made at the request of Scotland’s highest civil court in the matter of Wightman et al. vs. Secretary of State for Exiting the European Union (C-621/18), ruled that it is possible under certain conditions for the UK to unilaterally revoke the Withdrawal Declaration issued to the EU on March 29, 2017. It would be possible for as long as there is no binding withdrawal agreement and the period of two years stipulated in Article 50(3) TFEU has not expired, for as long as the revocation is made by a unilateral, unequivocal, and unconditional written declaration to the European Council after the concerned Member State has enacted the revocation decision in accordance with its constitutional requirements. Irrespective of this fundamental possibility established in this judgment, it is questionable whether this would happen before March 29, 2019, as the decision to issue such a revocation would also be subject to a majority in the British Parliament and, in all likelihood, could not ever be validly declared without the consent of the majority of Parliament.

Given all of these circumstances, both sides (but more on the UK side than on the EU side) continue to find themselves under massive pressure. Any extension of the two-year negotiation window, which would only be possible by mutual agreement, seems highly unlikely and would always entail the risk of a Member State “throwing a wrench into things” or demanding significant concessions in other areas before agreeing to such an extension. In this context, the possibility of a unilateral revocation of the Withdrawal Declaration could gain significance.

Assessment—”The Complete Mess”

The current situation seems hopeless from the point of view of the UK. The negotiating partners at the EU are not willing to make any further concessions. The alternative of withdrawing from the EU without a transitional arrangement appears to entail unpredictable economic disadvantages for the UK. On the other hand, the outcome of a second referendum, once again conceivable after the ECJ ruling on the possibility of unilaterally revoking the Withdrawal Declaration, is not as clear-cut as may be suggested in some newspapers. Calling all of this a “complete mess” would probably be a fair assessment.

The history of the EU tells us that the negotiations likely will eventually come to an end with a compromise that is bearable for both sides, even though we cannot predict the details. There might even be a chance that the United Kingdom will in the end remain in the EU. Stay tuned.

3. ITALY

Italy has passed a decree on security and immigration. This article also briefly summarizes the plans for British citizens residing in Italy in the event of a Brexit no-deal.

Security and Immigration Decree Passed

The Security and Immigration decree (“Salvini decree”) has been converted into law, confirming the amendments to Immigration and Citizenship law already in force since the publication of Law decree October 4, 2018, n. 113. With the conversion into law, the Parliament has also introduced further amendments to the initial version of the Law Decree.

In particular, the main changes to Law no. 91/1992, citizenship law, are as follows:

A new requirement for citizenship by marriage and naturalization applicants. It will be necessary to prove “adequate” knowledge of Italian language (at least level B1 of Common European Framework of Reference for Languages [CEFRL]). Those who have an EU long-term residence permit and those who comply with the Integration Agreement provisions are exempted from this requirement.
An increase in processing time for citizenship by marriage and naturalization applications (from 24 to 48 months). This also applies to applications already in process.
Citizenship applications by marriage can now be rejected even after 48 months (maximum processing time) from submission. Previously, it was not possible to reject a citizenship application by marriage after the maximum processing time.
An increase in the application fee for marriage, naturalization, and reacquisition from €200 to €250.
Citizenship acquired by marriage and naturalization can now be revoked in case of a final conviction for terrorism-related offenses and offenses related to public security.
Processing time for issuing civil status certificates (e.g., birth, marriage) requested for the purpose of filing a citizenship application is 6 months.

Regarding the changes to the Immigration Act, one of the most important amendments is the abolishment of permits for humanitarian reasons (previously granted to those who were not eligible to obtain refugee or subsidiary protection status). Instead, certain categories of applicants (e.g., victims of exploitation and domestic violence, people from countries hit by natural disasters, people in need of medical care) will be issued “special reasons” permits.

Plans for British Citizens Residing in Italy in the Event of a Brexit No-Deal

The Italian government is working on legislation that will be in place by March 29, 2019—the official Brexit date—in the event that no deal is reached. British citizens regularly residing in Italy will remain legal residents of the country also in this circumstance.

The legislative measures that will enter into force in case of a no-deal Brexit will ensure that British citizens residing in Italy as of March 29, 2019—that is to say, registered as a resident with their local registry office (anagrafe) at their town hall (comune) —will be granted enough time to apply for long-term resident status under EU Directive 2003/109/EC. In this way, British nationals will continue to enjoy rights such as access to healthcare, social benefits, employment, education, and family reunification.

British citizens living and working in Italy are advised to register with their town hall before March 29, 2019.

For more on Italy’s plans with respect to British citizens, see “Italy” below in the article under “United Kingdom.”

4. TURKEY

This article discusses the process for citizenship in Turkey by real estate investment.

Immigration investment programs have become very popular as a source of foreign investment in real estate in countries such as Canada, Greece, Grenada, and Moldova. Some programs focus on investment for residency purposes (e.g., Portugal, Greece) and others for citizenship (e.g., several Caribbean nations, Cyprus). Turkey’s investment immigration program focuses on citizenship and may particularly attract those citizens from emerging economies looking for a passport that allows them to travel more easily than their current passport. As of 2018, Turkish nationals enjoy visa-free or visa-on-arrival status in more than 100 countries or territories, including Singapore, Japan, Ukraine, Brazil, Korea, Mexico, and many countries in Africa, the Caribbean, and Latin America. Turkey’s program may also be popular with Arab nationals who were already investing significantly in Turkish real estate over the last several years.

Turkey’s citizenship regulations as of January 2017 allow investors to pursue Turkish citizenship through several categories, including capital investments, government debt instruments, investing in a business that employs 50 Turkish nationals, and venture capital investments. In September 2018, the threshold amounts were significantly lowered. With regard to real estate, investments of US $250,000 now qualify. Clearly, investment in real estate in Turkey has sparked interest internationally as the threshold amount is lower than that of many other investment citizenship programs.

For a real estate investment of US $250,000 to qualify, several restrictions apply. First, the purchase must have occurred after the change in the regulations (see specifics below). Additionally the property must not be sold by the applicant for at least three years. Note the following additional restrictions for real estate investments:

If the real estate is subject to a mortgage, the remaining part shall be taken into consideration by deducting the mortgage fee in determining the value.
The value in the official deed cannot be lower than the amount listed in the valuation report.
The applicant must show official receipts (by bank) showing the transfer of sales fee.
The real estate must be registered in the name of the applicant (foreign real person, may include spouse or minor children).
The real estate must not have been purchased by the applicant before December 1, 2017. If before September 18, 2018, the old regulations and thresholds apply.

The process of citizenship-by-investment is governed by the Foreign Investor Citizenship Application Special Joint Office (FICO). FICO is a new government agency under the Ministry of Interior that joins representatives from the Populations Registry Directorate, Migration Directorate, and Land Registry/Cadastre Directorate. FICO is currently set up in Istanbul and Ankara and will be rolled out in other locations across Turkey soon. FICO offices are set up to have desks with representatives of each of the Directorates to facilitate processing of cases from start to finish.

Citizenship by investment is a five-step process: (1) obtaining a Valuation Report; (2) issuance of a Certificate of Compliance; (3) filing a Residence Permit application; (4) filing an address registration; and (5) filing a citizenship application. Note that those foreigners who already lawfully reside in Turkey may have already completed steps 3 and 4.

Step 1: Valuation Report

Applicants must first have the real property intended to meet the citizenship application threshold be officially assessed for fair market value. This can only be done by a valuation firm authorized by the Capital Markets Board. A list of authorized firms is available here.

The valuation report can be issued before or after the acquisition of the real estate. It is sufficient to request a report with a copy of the deed, as the original or notarized deed is not needed. The valuation firm will need the consent of the property owner in order to study the property (site review) for a valuation report.

Step 2: Certificate of Compliance

Once the valuation report is complete, assuming it meets the regulatory financial thresholds, the applicant must then seek a Certificate of Compliance (CoC) from the Foreign Services Department of Land Registry and Cadastre Directorate (Foreign Cadastre). The Valuation Report, Title Deed, and proof of fund transfer to the seller are presented by the applicant to the Land Registry office that has jurisdiction over the location of the property purchased. The Land Registry office scans the documents in the packet and transfers them to the TAKB?S (Land Registry and Cadastre Information System) via EBYS (Electronic Document Management System). The Foreign Cadastre then issues a CoC to the applicant if all criteria are met. Processing time is approximately one week to receive approval electronically.

Step 3: Application for Residence Permit

Once the applicant is issued a CoC from the Foreign Registry, they may apply for a special Residence Permit for themselves and their legal dependents. Normally the Migration Directorate (MD) requires several steps to book appointments for filing residence permits. However, FICO’s Migration Directorate desk will allow qualified applicants and their dependents to streamline this process. The MD requires most of the documents typical for a tourist residence permit, but for this special investor residence permit, the MD additionally requires a copy of the CoC.

Qualified applicants are issued special category residence permits valid for one year. Note that this category of residence card does not permit the applicant to work in Turkey.

Step 4: Address Registration

Upon delivery of the residence card, the applicant must also complete an address registration at the Populations Registry desk at FICO. This is a procedure in which applicants officially register their place of residence in Turkey. The original title deed must be provided to complete the address registration process of the applicant and his or her dependents. Applicants will then be issued written confirmation of the registration of their residential address.

Step 5: Application for Turkish Citizenship

Once the applicant and his or her dependents have been issued residence permits and obtained their address registration documents, they may move on to the final step: filing citizenship applications. Aside from the standard citizenship application documents, investment applicants must additionally present the CoC and title deed to the property.

The Populations Registry desk at FICO sends the citizenship application file to the General Directorate of Population and Citizenship Affairs. The Directorate then conducts a background check and research (particularly related to national security and public order considerations). An interview is not necessarily required if applicants were interviewed previously for their residence permit applications.

A commission has been established within the Ministry of the Interior to monitor the progress of investment citizenship applications. In the event that an applicant clears background checks, the Ministry of Interior forwards the application to the Office of the Presidency. The citizenship application is then granted upon the decision of the President. Following a grant, the Ministry of Interior returns the approved application to the General Directorate of Population and Citizenship Affairs for final processing. Applicants are then invited to the Population Directorate to be issued their Turkish ID cards and apply for passports.

This article is not intended as specific legal advice and each investment application should be reviewed by an attorney. Contact your Alliance of Business Immigration Lawyers (ABIL) attorney for advice in specific situations.

5. UNITED KINGDOM

This article discusses how the British government intends to treat European Union (EU) citizens, other European Economic Area (EEA) nationals, and Swiss nationals arriving in the United Kingdom (UK) after March 29, 2019, if the UK leaves the EU without a deal; the EU settlement scheme’s opening for a public test phase; plans for British citizens living in the EU in the event of a no-deal Brexit; the UK government’s plans for a single, skills-based immigration system that marks the end of free movement; and a new online system for right-to-work checks.

How New Arrivals Will Be Treated If UK Leaves EU With No Deal

The British government has outlined how it intends to treat EU citizens, other EEA nationals, and Swiss nationals arriving in the UK after March 29, 2019, if the UK leaves the EU without a deal.

According to an announcement and a policy paper published on January 28, 2019, if that happens, the following arrangements will be put in place:

Free movement will end immediately.

The UK will operate a transition period for EEA nationals arriving in the UK between March 30, 2019, and December 31, 2020.

During the transition period, EEA nationals will be able to enter the UK upon production of a valid EEA passport or identity card. If they have a biometric passport, they will be able to use e-gates as they do now. On arrival, they will automatically be granted leave to enter for three months with permission to work and study.

EEA nationals who want to stay for longer than three months will need to apply for a new status called European Temporary Leave to Remain. There will be a fee for this. Subject to criminality and security checks, they will be granted leave to remain for 36 months with permission to work and study. This status cannot be extended. EEA nationals who want to stay beyond 36 months will need to apply under whatever immigration system will be introduced as of January 1, 2021. Some of these people may not qualify under the future immigration system, in which case they will need to leave the UK at the end of the 36 months.

EEA nationals arriving on or after March 30, 2019, will be able to bring non-EEA nationals who are their “close family members,” meaning a spouse or partner and dependent children under 18. Those family members will need to apply in advance for a “family permit.”

During the transition period, employers carrying out right-to-work checks will not have to distinguish between EEA nationals who arrived on or before March 29, 2019, and those who arrived afterwards. A valid EEA passport or identity card will be enough to satisfy a right-to-work check.

These proposed arrangements will not apply to Irish citizens. They will continue to be free to live and work in the UK without restriction.

The arrangements will also not apply to EEA nationals who arrive in the UK by March 29, 2019. They will be eligible to apply for permission to stay under the EU Settlement Scheme (more about this below). Any EEA national planning to move to the UK in the next few months would be wise to arrive on or before March 29, 2019, if possible so they can be sure of qualifying for the EU Settlement Scheme. They should keep their travel ticket as evidence of when they arrived.

EU Settlement Scheme Open for Public Test Phase

The EU Settlement Scheme opened for a public test phase on January 21, 2019. EU citizens living in the UK will need to apply under the EU Settlement Scheme if they want to stay in the UK after the planned Brexit transition period ends on December 31, 2020. The scheme is intended to implement the rules on citizens’ rights set out in the draft UK-EU withdrawal agreement—and in some ways it is more generous than those rules. The British government has said in a policy paper published in December 2018 that it will still go ahead with the scheme if the UK leaves the EU on March 29, 2019. with no deal.

The following are questions and answers on the EU Settlement Scheme:

What is the deadline for applying for the EU Settlement Scheme?

The deadline for applying is June 30, 2021, if the UK leaves under a version of the current draft withdrawal agreement, or December 31, 2020, if the UK leaves with no deal.

Until December 31, 2020, EU citizens will be able to rely on an EU passport or identity card as evidence of their right to live and work in the UK. After that, they will need to have either pre-settled or settled status granted under the EU Settlement Scheme.

Who can apply for the EU Settlement Scheme?

The following people can apply during the public test phase:

Resident EU citizens with a valid EU passport
Their non-EU citizen family members with a biometric residence card

Other European Economic Area (EEA) nationals (nationals of Norway, Iceland, Liechtenstein, and Switzerland) cannot apply during the public test phase. They must wait for the EU Settlement Scheme to become fully open in March 2019.

How do you apply for the EU Settlement Scheme?

To take part in the test phase, you need access to an Android phone (not iPhone) with NFC (Near-Field Communication) contactless technology.

Download the EU Exit: ID Document Check app and use it to scan your passport and your face. After using the app, complete an online application. You will need to enter your National Insurance number, answer some basic questions, and pay the application fee by credit card.

How much does it cost to apply to the EU Settlement Scheme?

The application costs £65 for an adult and £32.50 for a child. It is free for people who already have a permanent residence document. UK Prime Minister Theresa May has announced that these fees will be scrapped when the scheme is fully open on March 30, 2019, and that anyone who applies during the test phase will have their fees reimbursed.

What happens after you apply to the EU Settlement Scheme?

The Home Office will carry out automated checks with HMRC (Revenue & Customs) and DWP (Department for Work and Pensions) on your tax and benefits records, and a criminal record check.

If the automated checks indicate that you have been living in the UK for a continuous five-year period and you do not have a serious criminal record, you will be granted settled status. Settled status is a type of indefinite leave to remain and will allow you to live in the UK permanently.

If the checks indicate that you have been living in the UK for less than five years, you will be offered pre-settled status. Pre-settled status is a five-year temporary status. You will be able to convert pre-settled status into settled status after completing five years’ continuous residence in the UK.

If you are offered pre-settled status but in fact you have lived in the UK for a continuous five-year period, you can upload copies of documents showing this. The Home Office has published a list of the documents it accepts as evidence of residence. You do not have to rely on the last five years. You can rely on any five-year period as long as you have not been absent from the UK for more than five years since the end of the five-year period.

You will not receive a document confirming your status. Instead you will be able to use an online service to view your status and to share the details with other people, such as employers and landlords.

Do you have to apply now for the EU Settlement Scheme?

You do not have to apply now. Assuming the UK does actually leave the EU, you will need to apply by June 30, 2021 (or December 31, 2020, if there is no deal). But in the current climate, many people will want to apply sooner rather than later.

Plans for British Citizens Living in the European Union in the Event of a No-Deal Brexit

A number of EU countries have started to publish their plans for the treatment of British citizens in the event of a no-deal scenario after the United Kingdom (UK) leaves the European Union (EU) on March 29, 2019.

British citizens will immediately lose their free movement rights across the EU if there is no deal, but these plans mean that British citizens already living in an EU Member State will at least be allowed to continue living and working in that country.

In summary, the proposals are as follows:

Czech Republic. On January 7, 2019, the Czech government adopted a draft law protecting the position of British citizens in the Czech Republic in the event of no deal. They will be given until December 31, 2020, to apply for a certificate of temporary stay in the Czech Republic, provided the UK takes a similar approach toward Czech citizens living in the UK. The British government has already indicated in a policy paper published on December 6, 2018, that it will take such an approach toward all EU citizens living in the UK.

More information on the Czech draft law

The UK government’s policy paper

France. France is due to enact a project de loi (enabling legislation) that will allow the government to pass regulations allowing British citizens who are legally resident in France on or before March 29, 2019, to continue living and working in France. In the meantime, British citizens living in France are strongly advised to apply for a carte de séjour as soon as possible, by March 29, 2019, at the latest.

France’s project de loi

Germany. According to the Berlin local government website, if there is a no-deal Brexit, British citizens will be given a three-month grace period to apply for a German residence permit. Their application must be submitted at their local Foreigners Registration Office by June 30, 2019. In the meantime, and while the application is being processed, they can continue to live and work in Germany.

The main concern will be for those who wish to naturalize as German citizens. British citizens who acquire German citizenship on or before March 29, 2019, will be able to keep their British citizenship. However, if they become German after that date, they must renounce their British citizenship because Germany does not allow dual citizenship with a non-EU country.

The Berlin local government’s website

More information on these issues

Italy. Italy was the first EU27 country to announce its plans, with the Italian government confirming on December 21, 2018, that it would introduce legislation allowing British citizens resident in Italy on March 29, 2019, to remain and maintain their existing rights to work in the event of no deal being reached. The intention is to create a path for all British citizens living in Italy to request long-term resident status under EU Directive 2003/109.

British citizens living in Italy are strongly advised to register with their town halls before March 29, 2019, to ensure they are legally resident.

More information on Italy’s plans

See also the article under “Italy” in this issue, above.

Netherlands. The Dutch government announced on January 7, 2019, that British citizens legally residing in the Netherlands on March 29, 2019, can continue doing so after Brexit in a no-deal scenario.

There will be a national transition period from March 29, 2019, to July 1, 2020, during which British citizens will retain their right to reside, work, and study in the Netherlands. This also applies to non-EU family members of British citizens.

The Dutch Immigration and Naturalisation Service has sent letters to British citizens who are registered with their municipality inviting them to apply for temporary residence permits before March 29, 2019. They will then receive a further letter inviting them to apply for a new national residence permit after the transitional period. This can be obtained if the British citizen meets the same residence conditions that apply to EU citizens, and will allow British citizens the right to work and study in the Netherlands.

The Dutch government’s announcement

Poland. The Polish government has announced that if there is a no-deal Brexit, it will introduce a 12-month grace period starting on March 30, 2019, for British citizens living in Poland on or before March 29, 2019. British citizens who have lived in Poland for five years will be able to apply for a permanent residence permit. Those who have lived in Poland for less than five years will be able to apply for a temporary permit.

The Polish government’s announcement

Sweden. According to reports, the Swedish government is proposing a 12-month grace period for British citizens to give them time to apply for permission to stay in the country if the UK leaves the EU without a deal.

For one such report, see Reuters

Switzerland. Switzerland is not in the EU, but Swiss nationals have free movement rights in the EU, including in the UK, and British citizens have similar rights in Switzerland. The UK and Switzerland have reached an agreement that protects the rights of Swiss nationals living in the UK and British citizens living in Switzerland. In a no-deal scenario, British citizens lawfully residing in Switzerland on March 29, 2019, will be able to continue exercising the same rights as they currently have, including rights of residence, access to healthcare, education, pensions, and social security coordination.

The agreement between the UK and Switzerland

Other Member States. We do not know yet how other EU Member States intend to treat British citizens living in their territory if there is a no-deal Brexit. More British citizens live in Spain than anywhere else in the EU. Many have applied for Spanish citizenship, but there is a big backlog, and so far there is no sign of a no-deal Brexit plan for them.

What should employers and their UK staff working in the EU be doing to prepare for a no-deal Brexit?

Employers should ensure that any British citizens living and working in the EU are aware of the relevant local immigration provisions and deadlines or grace periods so they can prepare the necessary documents for them and their families in the event that an application for residence or other paperwork needs to be filed.

British citizens who have lived in other EU countries for five years or more should consider applying for confirmation of their acquisition of permanent residence, which they are entitled to do under the Citizens Directive.

While many EU countries already require British citizens to register their residence, where this is not a legal requirement, it is advisable that this be done before March 29, 2019.

UK Government’s Plans for a New Single, Skills-Based Immigration System

On December 19, 2018, the UK Home Secretary, Sajid Javid, published a White Paper setting out the government’s plans for a new single, skills-based immigration system that marks the end of free movement.

This is the culmination of over two years of Brexit planning, starting with the Brexit vote in June 2016 to leave the EU. Promises to release this White Paper have come and gone throughout this period, but at long last we have the blueprint for what will be the new UK immigration system once the transition period comes to an end in December 2020. This will represent the biggest shake-up in immigration since the introduction of the Points-Based System (PBS) in 2008. The change is precipitated by the need to bring EU nationals within the UK immigration rules. Of course 2020 is some way off, and until then, there are likely to be changes, particularly with regard to the controversial proposed £30,000 salary cap.

The main provisions largely follow the recommendations of the Migration Advisory Committee published in September 2018.

Main Provisions

The new immigration system will introduce a new route for skilled workers that will apply to all nationalities equally, will not favor one nationality over another, and purports to treat all nationalities equally. Is this possible?

At present, the proposed salary cap for skilled workers is £30,000, but due to the likely impact of this new system on a number of sectors employing EU nationals earning significantly less, it will be subject to a public consultation. Skilled workers under the current Tier 2 Scheme need to be skilled to RQF 6 (degree level); however, it is proposed that this will now include those skilled to at least RQF 3 (A level standard).

It is also proposed that the annual cap on the number of Tier 2 General Restricted work visas issued will be removed. The cap has remained at 20,700 for the last few years. The Tier 2 cap has been particularly controversial because it caused significant recruitment issues for UK businesses when the cap was reached between December 2017 and July 2018, thus preventing employers from sponsoring the migrants they needed. Due to the problems with the cap being hit, the Home Secretary removed doctors and nurses from the quota.

One of the changes is that the Resident Labour Market Test (RLMT), the requirement for employers to test the market, will be removed, which many practitioners have campaigned for. This along with the removal of the Tier 2 cap will be very welcome by businesses as the requirements were very time-consuming and made the recruitment process stressful and often contrived.

There will also be a new route for workers at any skill level for a temporary period. The 12-month visa will provide access to the labor market but no access to benefits. This is an odd statement as migrant workers were never entitled to access benefits, so it is clearly aimed at European nationals. People arriving via this route will not be able to bring family members with them, will not accrue rights to settle in the UK, and will have a 12-month cooling-off period once their visa expires. These proposals will be subject to a consultation with businesses and other stakeholders as part of a planned extensive engagement program.

The Youth Mobility Scheme (YMS) allowing people aged 18 to 30 to come to the UK for two years for work or study will be expanded to encompass a UK-EU YMS scheme. This may go some way toward addressing the concerns surrounding a salary cap of £30,000, if significant numbers of EU nationals are able to come to the UK to take up lower-skilled work under this Scheme.

The White Paper proposals will also ensure that there is no limit on the number of bona fide international students who can come to the UK to study. Proposals extend the time they can stay post-study to find employment to six months for those who have completed a bachelor’s or master’s degree and 12 months for those who have completed a PhD.

The White Paper also proposes:

Creating a single, consistent approach to criminality by aligning EU and non-EU criminality thresholds
Ending the use of national ID cards as a form of travel documentation for EU citizens as soon as is practicable
Introducing an Electronic Travel Authorisation (ETA) scheme to allow vital information to be collected at an earlier stage before visitors who do not require a visa travel
Allowing citizens from Australia, Canada, Japan, New Zealand, the United States, Singapore, and South Korea to use e-gates to pass through the border on arrival, alongside EU and UK citizens

The Immigration and Social Security Coordination (EU Withdrawal) Bill published in December 2018 ends free movement and creates the legal framework for the future borders and immigration system. It also creates the legal framework for a future, single benefits system that will apply to both EU and non-EU nationals and maintains the Common Travel Area between the UK and Ireland.

The new immigration and borders system will be implemented in a phased approach beginning in 2021, following an extensive 12-month program of engagement with businesses, stakeholders, and the public by the Home Office.

For Sponsors of Tier 2 migrants, the White Paper is a mixed blessing. Certainly the removal of the notorious Tier 2 cap and the time-consuming RLMT will be welcome. However, for those employers who have hitherto hired a high percentage of EU nationals in the past and perhaps do not currently have a Tier 2 Sponsor Licence, the changes will be significant. At present it is relatively straightforward to hire EU nationals as no work visa requirements apply. With the proposed changes, the administrative burden and costs of having to apply for a Sponsor Licence and then comply with Tier 2 Sponsor obligations will be onerous. The changes are likely to have a particularly significant negative impact on smaller and medium-sized businesses, due to the increased costs and administrative burdens associated with having to apply for work visas.

The proposed consultation and stakeholder engagement with respect to some items within the White Paper is welcome.

The White Paper

New Online System for Right-to-Work Checks

Immigration Minister Caroline Nokes announced that starting on January 28, 2019, employers can rely on an online Right to Work Checking Service to demonstrate compliance with work authorization requirements. Although the information at this link currently states that employers will also be required to conduct a right-to-work check in person, this will not be necessary effective January 28, 2019, when the new online Right to Work Checking service goes live.

The checking service

6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

The latest immigration news is at https://www.abil.com/news.cfm.
The latest published media releases include:
ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

7. ABIL Member / Firm News

Robert Aronson and Debra Schneider, of Fredrikson & Byron, P.A., have co-authored “A Bridge Over Troubled Waters: The High-Skilled Worker Rule and Its Impact on Employment-Based Immigration,” published in 44 Mitchell Hamline L. Rev. 935-969 (2018) and available here.

A Forbes article quotes Dagmar Butte, Vic Goel, and William Stock. The article discusses how the combination of denials, long wait times, and suspension of premium processing is making it more difficult for H-1B professionals to change jobs. It concludes that the administration’s policies have made employers, H-1B professionals, and U.S. workers all worse off. The article: “U.S. Policies Harming Labor Mobility of H-1B Professionals.”

Charles Foster and John Meyer, chairman and partner, respectively, at Foster LLP, attended the EB-5 & Uglobal Immigration Expo hosted by EB-5 Investors Magazine on February 11, 2019, in Dubai, United Arab Emirates. Mr. Foster presented an overview of the EB-5 Immigrant Investor Program and its latest developments to representatives of leading EB-5 regional centers, migration agencies, and potential investors. More information

Mr. Foster delivered the keynote address at the immigration seminar, “Struggling With Your Immigration Status: Is Canada a Solution?,” hosted by The Aga Khan Economic Planning Board and Indo-American Chamber of Commerce of Greater Houston on December 15, 2018, in Houston, Texas. Mr. Foster spoke about the EB-5 Investment Program as a possible alternative to the H-1B visa backlog. More information on this event

Mr. Meyer was a guest speaker for “Investing and Doing Business in Texas,” an event hosted by Invierta en USA on January 30, 2019, in Mexico City, Mexico. Mr. Meyer spoke about the EB-5 Immigration Investor Program concerning how to obtain business and investment visas to immigrate to the United States. The audience included Mexican entrepreneurs who want to invest in, establish, and expand businesses in Texas. More information

Anu Nair, of Klasko Immigration Law Partners, LLP, served as a panelist for “U.S. Immigration and IRS Update,” a Business After Hours event sponsored by Gray Robinson Attorneys at Law and hosted by the Indian American Chamber of Commerce on January 15, 2019, in Orlando, Florida. She provided an overview of the EB-5 Immigrant Investor Program and spoke on the latest developments. She included an update on the impending visa backlog for Indian foreign nationals. More information

Charles Kuck is the attorney for Grammy-nominated rapper 21 Savage, whose real name is She’yaa Bin Abraham-Joseph. Mr. Abraham-Joseph, who was born in England in 1992 and has been living in the United States since the age of seven, was detained recently on immigration charges by U.S. Immigration and Customs Enforcement (ICE) in Atlanta, Georgia. Mr. Kuck was quoted by Reuters in “Rapper 21 Savage Being Held Unfairly, Attorneys Claim.” Mr. Kuck noted that “ICE has not charged Mr. Abraham-Joseph with any crime. As a minor, his family overstayed their work visas, and he, like almost two million other children, was left without legal status through no fault of his own.” He said, “This is a civil law violation, and the continued detention of Mr. Abraham-Joseph serves no other purpose than to unnecessarily punish him and try to intimidate him into giving up his right to fight to remain in the United States.” Mr. Kuck also said that ICE was refusing to release his client on bond based on “incorrect information about prior criminal charges.”

The Reuters article

Additional details of Mr. Abraham-Joseph’s case:

Mr. Kuck was quoted by Talking Points Memo in “Trump’s Companies Boosted Foreign Worker Visa Use to 10-Year High.” He said that the Trump Organization’s heavy reliance on visa programs flies in the face of the President’s political rhetoric and actions otherwise. “If in fact he wanted to ‘buy American, hire American,’ he’d say ‘we’re not going to use the immigration system, we’re going to go out and bring our workers down from West Virginia or from Kentucky or Maine and set them up and give them jobs. Why aren’t they recruiting in West Virginia? It’s hypocrisy.” The article

Mr. Kuck recently spoke about President Trump’s border wall efforts and the politics of immigration, on “Political Rewind.” Video, audio, and a related article are available at Political Rewind.

Robert Loughran and Matthew Myers, both of Foster LLP, provided an overview on December 4, 2018, of employment-based immigration strategies in the United States for small businesses and entrepreneurs from Latin America at the offices of Velocity Texas’ Global Accelerator Program, an initiative to incubate and accelerate competitively selected international companies in San Antonio, Texas.

Cyrus Mehta has authored several new blog entries: “Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders“; “Top 10 Most Viewed Posts Published on the Insightful Immigration Blog in 2018“; and “.”

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry, “The Trump Administration’s Lawlessness at the Border: Stories from Tijuana.”

David Isaacson, of Cyrus Mehta‘s office, has authored a new blog entry, “.”

Stephen Yale-Loehr was quoted by the Cornell Daily Sun in “Tompkins County Deputy Called ICE to Report Mexican Man in U.S. Illegally, Drawing Sheriff’s Ire.” Mr. Yale-Loehr said, “I agree that it is a close call, but the county resolution explicitly states that nothing in the resolution bars a sheriff’s officer from sending a statement of a person’s immigration status to federal immigration authorities.” The article

Mr. Yale-Loehr was quoted by Knowledge@Wharton, University of Pennsylvania, in “Exploring Immigration: Will the U.S. See Reform in 2019?” He said, “Congress came close in 2013 with a comprehensive immigration reform package that was passed bi-partisanly through the Senate and was 1,200 pages, but it failed to clear the House of Representatives. It has been historically hard to get immigration through any Congress and it has become only harder in this more politicized environment.” He also commented, “People in Congress are saying if we could combine funding for border security, plus some relief for DACA recipients and some protection for people who have temporary protected status, we could see some movement on immigration. I hope that would be the case, but politically we may be unlikely to achieve that.” Mr. Yale-Loehr concluded, “We need comprehensive immigration reform. There are many broken parts to the immigration system. Just trying to fix one of them, whether it’s asylum or illegal immigration, isn’t going to work. We need to have an overall approach. The Senate tried to do this in 2013. We need to have a national conversation about what is the role of immigration and when immigration can help the United States so that we can come up with a new overall comprehensive framework. Then we can untangle some of the mess that we’ve gotten ourselves into.” The article

Mr. Yale-Loehr was quoted by Voice of America regarding a Forbes.com H-1B column (in Vietnamese). The article

Mr. Yale-Loehr was quoted by the Houston Chronicle in “With Inaction, Supreme Court Gives Longer Life to DACA as Shutdown Drags On.” Commenting on the U.S. Supreme Court’s declining to take up the Trump administration’s appeal in a “Dreamers” case, Mr. Yale-Loehr said, “I think it is very unlikely to be considered this term, which means DACA lives another 10 months.” The article

Mr. Yale-Loehr was quoted by several media outlets on possible upcoming Supreme Court cases:

“Will The Supreme Court Fast-Track Cases Involving Trump?,” published by 538.com. Commenting on the ongoing litigation over Deferred Action for Childhood Arrivals (DACA), Mr. Yale-Loehr said it would be somewhat unusual for the high court to intervene at this stage. He added that the DACA case lacks the “immediacy” of the travel ban case, where thousands of people were being prevented from entering the country, so there’s not the same sense of urgency for the Supreme Court to act.
“Major Immigration Cases Ahead In 2019,” published by Law360. Mr. Yale-Loehr said that the U.S. Supreme Court’s decision earlier this year in Trump v. Hawaii upholding the president’s travel ban could have an impact on litigation over the recent asylum policy as it circulates through the appellate courts. “If this case goes to the Supreme Court, the court will have to decide the scope and possible limits of its travel ban decision,” he said. The article is available by registration.

Mr. Yale-Loehr was quoted in “Sanctuary Policies Criticized Again After Officer’s Slaying. Here’s a Look at the Issues,” published by the San Francisco Chronicle. Commenting on whether police and sheriffs’ deputies ask about immigration status when making an arrest, Mr. Yale-Loehr said that varies among police departments and individual officers in California and elsewhere. If a suspected drunken driver lacked a license, for example, “or the driver’s license looked fishy, or the individual looked or sounded foreign,” some officers might contact U.S. Immigration and Customs Enforcement to ask about the individual’s legal status, he said.

Mr. Yale-Loehr was quoted in “What Did Donald Trump’s Tweet About H-1B Visas Mean?,” published by Forbes. He said that sometimes people can read too much into President Trump’s tweets and statements. He advised people to focus instead on concrete policy actions. “This tweet runs counter to what the administration has actually done against H-1B workers. Ever since the President issued his ‘Buy American and Hire American’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has made it harder for employers to hire H-1B workers and to keep them.” He noted a National Foundation for American Policy report that showed a 41% increase in denials of H-1B petitions in the 4th quarter of FY 2017. “Just last week, a company sued USCIS in federal court after the agency denied a company’s extension request for an H-1B employee, even though the agency had approved four H-1B petitions before for the same person in the same job. In effect, the President has built an invisible wall against H-1B workers. Given all that, why should we believe this apparent about-face? Even if President Trump is serious about making it easier for H-1B workers to stay permanently in the United States, his administration cannot do that unilaterally. Congress would have to pass a law.” He pointed out that Congress is divided on immigration issues, making this type of reform, particularly in isolation, difficult to picture in the current environment.

Mr. Yale-Loehr was quoted in the South China Morning Post in “U.S. Investor Visa Programme Backlog Puts Chinese Capital at Risk” regarding the EB-5 immigrant investor green card program. Mr. Yale-Loehr said, “It’s a guessing game. Everybody is trying to figure out what to do and it’s a huge problem.” He noted that “the industry and investors need clarity, but nobody is holding their breath. They desperately need Congress to act on increasing the quota to alleviate the backlog, but that’s not anywhere on the horizon either. Unfortunately, I don’t see the light at the end of the tunnel.”

Mr. Yale-Loehr was quoted in two articles about a new federal court ruling blocking the Trump administration’s efforts to restrict asylum for people fleeing domestic violence and gangs. Both contain the same quote: “Although the government will almost certainly appeal, in the meantime … the federal court ruling ensures that people fleeing domestic violence or gang violence will have a fair shot.”

Mr. Yale-Loehr was quoted by Law360 in “The Top Immigration Cases of 2018.” Commenting on Jennings v. Rodriguez, a Supreme Court decision that certain immigrants held in mandatory detention during removal proceedings are not entitled to bond hearings after six months in custody, Mr. Yale-Loehr said the case pits two contrasting high court decisions against each other. In 2001, in Zadvydas v. Davis, the Court interpreted an immigration statute to require periodic bond hearings for immigrants detained after a removal order because allowing indefinite detention of a noncitizen could cause a serious constitutional problem. Just two years later, however, in Demore v. Kim, the court upheld a provision requiring detention of immigrants awaiting their removal hearings. “If Jennings goes back to the Supreme Court, the court will have to determine which decision controls. The issue is now more important than ever, with the growing number of immigrants in detention and the long backlogs in immigration courts,” he said. The article is available with registration here.