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ABIL Immigration Insider • December 3, 2023

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In this issue:

1. Three Important Cases Pending Before U.S. Supreme Court – Three important cases are pending before the U.S. Supreme Court. According to observers, at stake are the legitimacy of the current U.S. immigration court system and a longstanding precedent decision.

2. DOS Proposes Updates to Au Pair Exchange Visitor Program – The Department of State proposes to amend the Exchange Visitor Program regulations governing the au pair category to “clarify and modernize” the program.

3. ICE Launches Online Portal for Noncitizens in Removal Proceedings – U.S. Immigration and Customs Enforcement (ICE) has launched the ICE Portal, a public-facing website that centralizes communications between noncitizens who have been placed in removal proceedings and the federal government.

4. CBP Will Temporarily Close Arizona Border Crossing – Beginning Monday, December 4, 2023, U.S. Customs and Border Protection’s Office of Field Operations will temporarily suspend operations at the Lukeville, Arizona, port of entry.

5. USCIS Expands myProgress to Forms I-485 and I-821 – U.S. Citizenship and Immigration Services (USCIS) announced that it is expanding myProgress (formerly known as personalized processing times) to Form I-821, Application for Temporary Protected Status, and Form I-485, Application to Register Permanent Residence or Adjust Status. myProgress will initially only be available for family-based or Afghan special immigrant I-485 applicants.

6. DOJ Reaches Immigration-Related Discrimination Settlement Agreement With Tennessee Trucking Companies – The Department of Justice has secured a $700,000 agreement with two transportation logistics and long-haul trucking companies headquartered in Chattanooga, Tennessee. The agreement resolves DOJ’s determination that the companies violated the anti-discrimination provision of the Immigration and Nationality Act by routinely discriminating against non-U.S. citizen workers when checking their permission to work in the United States.

7. Global Entry Program Expands to PortMiami Seaport – As of December 1, 2023, PortMiami is the first seaport to host a Global Entry Enrollment Center to assist the traveling public with completing new and renewal applications for the “trusted traveler” program.

8. DHS Increases FY 2024 Limit on H-2B Nonagricultural Workers and Provides Portability – In consultation with the Department of Labor, the Department of Homeland Security is increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2024. 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

9. DOJ Reaches Several Immigration-Related Discrimination Settlement Agreements – Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., DOJ has settled immigration-related discrimination cases with a New York City health care system and a staffing agency with offices nationwide.

10. Federal Government Shutdown Averted for Now – As many know, before a deadline of September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. A shutdown is still possible after November 17.

11. Apple Settles Citizenship Discrimination Allegations With $25 Million ‘Landmark’ Agreement – Under the agreement, Apple must pay up to $25 million in back pay and civil penalties, which the Department of Justice said was the largest award that it has ever recovered under the antidiscrimination provision of the Immigration and Nationality Act

12. DHS Announces Eligible Countries for H-2A and H-2B Programs; Bolivia Added – The Department of Homeland Security, in consultation with the Department of State, announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs next year. Each country’s designation is valid until November 8, 2024. Bolivia has been added to the list of countries eligible to participate in both programs.

13. USCIS to Move Filing Location for Premium Processing Requests Filed With Immigrant Petition for Alien Workers – On November 13, 2023, U.S. Citizenship and Immigration Services (USCIS) will begin transitioning the filing location for Form I-907, Request for Premium Processing, when filed with Form I-140, Immigrant Petition for Alien Workers, from the service centers to the USCIS lockbox.

14. December Visa Bulletin Includes Reminder About Expiring Non-Minister Religious Workers Category – No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight November 16, 2023, unless Congress extends the program.

15. Potomac Service Center Will No Longer Accept Paper Responses – Starting November 13, 2023, the Potomac Service Center will no longer accept mailed correspondence. To avoid processing delays, U.S. Citizenship and Immigration Services (USCIS) said, applicants and their representatives should instead upload their responses to their USCIS online accounts (for receipt notices that start with IOE-) or mail them to the Texas Service Center.

16. ABIL Global: Spain – Spain has partially implemented European Union Directive 2021/1883 concerning the conditions of entry and residence for highly qualified employment of third-country nationals.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – December 2023

1. Three Important Cases Pending Before U.S. Supreme Court

Three important cases are pending before the U.S. Supreme Court. According to observers, at stake are the legitimacy of the current U.S. immigration court system and the longstanding precedent decision, Chevron v. Natural Resources Defense Council, and its standard for deference to federal administrative agency decisions. The cases include:

  • Securities and Exchange Commission v. Jarkesy, which involves two questions: (1) whether the SEC’s choice of enforcement proceedings violates the nondelegation doctrine, and (2) whether the for-cause removal of administrative law judges (ALJs) violates the U.S. Constitution. Both issues are important for immigration lawyers. For example, observers note, a ruling in favor of Mr. Jarkesy could result in a finding that immigration judges do not have the authority to adjudicate the cases they are assigned. Oral argument in Jarkesy was held on November 29, 2023.
  • Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, which include more expansive challenges to administrative law. Among other issues, the Supreme Court will consider whether to limit or overrule the Court’s 1984 precedent decision in Chevron v. Natural Resources Defense Council. Overruling Chevron would have an impact on federal court challenges to agency decisions from U.S. Citizenship and Immigration Services, the Department of Labor, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection. Oral argument in Relentless and Loper will be held in January.

Details:

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2. DOS Proposes Updates to Au Pair Exchange Visitor Program

The Department of State (DOS) has issued a proposed rule to amend the Exchange Visitor Program regulations governing the au pair category to “clarify and modernize” the program. Among other things, the proposed rule would restructure the child care and educational components, replace the EduCare program with a part-time option, enhance au pair and host family orientation requirements, formalize standard operating procedures for rematching au pairs with new host families, and propose new requirements to strengthen au pair protections.

DOS said it encourages public comment on the proposed rule, particularly on restructuring the au pair program and calculating weekly compensation. DOS initially said it would accept public comments on the proposed rule until December 29, 2023, but then extended the deadline to January 28, 2024.

Details:

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3. ICE Launches Online Portal for Noncitizens in Removal Proceedings

On November 30, 2023, U.S. Immigration and Customs Enforcement (ICE) launched the ICE Portal, a public-facing website that centralizes communications between noncitizens who have been placed in removal proceedings and the federal government. On the portal, noncitizens can schedule appointments, update their addresses, and check hearing information in a consolidated location.

Specifically, the portal incorporates previous online capabilities like ICE’s Appointment Scheduler and change-of-address tool, and allows noncitizens to look up information regarding upcoming immigration court hearings before the Executive Office for Immigration Review. It also includes information on finding a lawyer, including links to pro bono legal service providers and other resources; working in the United States; and finding social support.

Details:

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4. CBP Will Temporarily Close Arizona Border Crossing

U.S. Customs and Border Protection (CBP) announced that beginning Monday, December 4, 2023, CBP’s Office of Field Operations will temporarily suspend operations in Lukeville, Arizona. Both northbound and southbound pedestrian and vehicle traffic at the Lukeville port of entry will be suspended until further notice. Travelers can cross into or out of the United States through either the Nogales Port of Entry in Nogales, Arizona, or the San Luis Port of Entry in San Luis, Arizona.

CBP said the temporary closure was in response to “increased levels of migrant encounters at the Southwest Border, fueled by smugglers peddling disinformation to prey on vulnerable individuals, CBP is surging all available resources to expeditiously and safely process migrants. CBP will continue to prioritize our border security mission as necessary in response to this evolving situation.”

Details:

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5. USCIS Expands myProgress to Forms I-485 and I-821

On November 21, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it is expanding myProgress (formerly known as personalized processing times) to Form I-821, Application for Temporary Protected Status, and Form I-485, Application to Register Permanent Residence or Adjust Status. myProgress will initially only be available for family-based or Afghan special immigrant I-485 applicants.

USCIS explained that myProgress “provides applicants with access, in their online account, to personalized estimates of their wait time for major milestones and actions on their case, including their final case decision. While estimates are based on case type and historical patterns, they are not a guarantee of timing, and cannot take into consideration all possible unique application processing factors.” Milestones include confirmation that the application was received, movement of the application through pre-processing and adjudicative steps, and the case decision.

In addition to Form I-485 and Form I-821, myProgress is available for applicants with a USCIS online account who file Form I-765, Application for Employment Authorization; Form I-131, Application for Travel Document; Form N-400, Application for Naturalization; Form I-90, Application to Replace Permanent Resident Card; or Form I-130, Petition for Alien Relative.

Applicants still need to visit the public Check Case Processing Times webpage to determine whether they are eligible to file an Outside of Normal Processing Times service request, USCIS noted.

Details:

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6. DOJ Reaches Immigration-Related Discrimination Settlement Agreement With Tennessee Trucking Companies

On November 20, 2023, the Department of Justice (DOJ) announced that it secured a $700,000 agreement with Covenant Transport Inc., and an affiliated entity, Transport Management Services LLC, two transportation logistics and long-haul trucking companies headquartered in Chattanooga, Tennessee. The agreement resolves the department’s determination that the companies violated the anti-discrimination provision of the Immigration and Nationality Act (INA) by routinely discriminating against non-U.S. citizen workers when checking their permission to work in the United States.

DOJ’s investigation found that from January 2020 through August 2022, Covenant and Transport routinely discriminated against non-U.S. citizens by requiring lawful permanent residents to show their permanent resident cards (green cards) and by requiring other non-U.S. citizens to show documents related to their immigration status. DOJ noted that federal law ” allows all workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work.”

Under the terms of the agreement, Covenant and Transport will pay $700,000 in civil penalties to the United States, train their employees on the INA’s anti-discrimination requirements, revise their employment policies, and be subject to monitoring by DOJ.

Details:

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7. Global Entry Program Expands to PortMiami Seaport

As of December 1, 2023, PortMiami is the first seaport to host a Global Entry Enrollment Center to assist the traveling public with completing new and renewal applications for the “trusted traveler” program.

U.S. Customs and Border Protection (CBP) officers staffing PortMiami Global Entry Enrollment Center will help candidates complete their application processing and their conditionally approved, in-person interviews as the final step in the membership enrollment process. Global Entry includes TSA PreCheck eligibility, which expedites screening through Transportation Security Administration (TSA) checkpoints at participating airports.

CBP Global Entry continues to expand to foreign partner countries.

Details:

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8. DHS Increases FY 2024 Limit on H-2B Nonagricultural Workers and Provides Portability

Effective November 17, 2023, in consultation with the Department of Labor (DOL), the Department of Homeland Security (DHS) has increased the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year (FY) 2024. 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica. The visas will be available “only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer.” DHS is also providing temporary portability flexibility, explained in more detail in the temporary rule.

The supplemental visas will be distributed in several allocations and timeframes, which are summarized in the temporary rule. DHS said it will not accept any H-2B petitions under these allocations after September 16, 2024, and will not approve any such H-2B petitions after September 30, 2024. The provisions related to portability are available only to petitioners and H-2B nonimmigrant workers initiating employment through the end of January 24, 2025.

DOL’s Office of Foreign Labor Certification is accepting comments on the temporary rule until January 16, 2024.

Details:

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9. DOJ Reaches Several Immigration-Related Discrimination Settlement Agreements

Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., DOJ has settled immigration-related discrimination cases with a New York City health care system and a staffing agency with offices nationwide. Below are highlights of the settlements:

NYC Health and Hospitals Corporation. On November 16, 2023, DOJ announced a settlement agreement with New York City Health and Hospitals Corporation (NYCHH), which provides health care services to more than a million New Yorkers. The agreement resolves DOJ’s determination that NYCHH violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it rejected a worker’s valid employment authorization document (EAD) based on the worker’s national origin.

The worker’s EAD had been extended automatically under Temporary Protected Status (TPS). DOJ determined that NYCHH rejected the valid document and delayed the onboarding of the worker based on its incorrect assumption that the worker’s country of birth listed on her EAD had to be the same as the country designated for TPS. DOJ pointed out that Federal Register notices that automatically extend a TPS worker’s permission to work explain that the worker does not have to show additional documentation or prove citizenship status, and that the country of birth listed on the worker’s documentation does not have to match the TPS-designated country.

Under the terms of the agreement, NYCHH will pay back pay to the affected worker and a civil penalty to the United States, train its staff on the anti-discrimination provision, review and revise its employment policies and training materials, and be subject to departmental monitoring for three years.

Kforce Inc. On November 15, 2023, DOJ announced a settlement agreement with Kforce Inc. (Kforce), a staffing agency with 36 offices across the United States. The agreement resolves DOJ’s determination that Kforce discriminated against non-U.S. citizens with permission to work in the United States and excluded them from job opportunities based on their citizenship status.

DOJ’s investigation determined that from at least March 1, 2019, to February 28, 2022, Kforce distributed job advertisements that contained unlawful hiring restrictions based on citizenship status or otherwise screened out candidates based on their citizenship status.

Under the terms of the settlement, Kforce will pay $690,000 in civil penalties to the United States and set aside $230,000 to compensate affected workers. The agreement also requires Kforce to train its personnel on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

Details:

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10. Federal Government Shutdown Averted for Now

As many know, before a deadline of September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. A shutdown was possible after November 17, but it was averted. Below are highlights of how immigration-related services could be affected if a shutdown happens in the future.

Many immigrant and nonimmigrant visa applications and petitions would not be severely affected because they are fee-based. “Nonessential” visa processing, such as tourist visas, could be slowed or suspended abroad, however, which could increase backlogs. Consular services located in federal buildings could be affected if those buildings are closed. Applications and petitions that depend on action by the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) would be affected, including those requiring a Labor Condition Application (e.g., H-1B, H-1B1, EB-3) and PERM employment-based immigrant petitions. Other OFLC functions could also cease during a shutdown, including processing of temporary labor certifications and prevailing wage determinations. Some programs that rely on appropriations could be suspended temporarily, such as the E-Verify program and Conrad 30 J-1 doctors.

A Department of Homeland Security (DHS) fact sheet notes that if there is a shutdown, nearly three in four DHS employees—more than 185,000 people—would be required to continue working through the shutdown without receiving a paycheck during that time. Those working without pay would include law enforcement officers, analysts, investigators, and disaster response officials. DHS said a shutdown would result in, among other things:

  • More than 19,000 unpaid U.S. Border Patrol agents and 25,000 unpaid Office of Field Operations officers, including CBP agents and officers working at more than 300 ports of entry and guarding more than 6,000 miles of border.
  • Stopped funding to border communities and interior cities, including funding to cover costs that border and interior communities incur associated with sheltering migrants in their cities. “Recipients may be unable to draw down on a portion of the funds, and no new awards will be made under a shutdown,” DHS said.
  • Short- and long-term effects on hiring and onboarding, including a pause in processing of nearly 2,500 tentative job offers to DHS candidates for employment.

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

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11. Apple Settles Citizenship Discrimination Allegations With $25 Million ‘Landmark’ Agreement

On November 9, 2023, the Department of Justice (DOJ) announced a landmark agreement with Apple Inc. (Apple) to resolve allegations that the company illegally discriminated in hiring and recruitment against U.S. citizens and certain non-U.S. citizens whose permission to live in and work in the United States does not expire.

Under the agreement, Apple must pay up to $25 million in back pay and civil penalties, which DOJ said was the largest award that it has ever recovered under the antidiscrimination provision of the Immigration and Nationality Act (INA).

The settlement agreement relates to Apple’s recruitment for positions falling under the permanent labor certification program (PERM). Specifically, DOJ’s investigation found that Apple did not advertise positions it sought to fill through the PERM program on its external job website, even though its standard practice was to post other job positions on that website. It also required all PERM position applicants to mail paper applications even though the company permitted electronic applications for other positions. In some instances, Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically instead of being mailed in on paper. DOJ said that these “less effective recruitment procedures nearly always resulted in few or no applications to PERM positions from applicants whose permission to work does not expire.”

Pursuant to the $25 million agreement, Apple must pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible discrimination victims. The agreement also requires Apple to ensure that its recruitment for PERM positions more closely matches its standard recruitment practices. Under the agreement, Apple must conduct more expansive recruitment for all PERM positions, including posting PERM positions on its external job website, accepting electronic applications, and enabling applicants for PERM positions to be searchable in its applicant tracking system. DOJ said that Apple implemented some of these measures after the agency opened its investigation. Additionally, Apple must train its employees on the INA’s antidiscrimination requirements and be subject to departmental monitoring for the three-year period of the agreement.

Details:

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12. DHS Announces Eligible Countries for H-2A and H-2B Programs; Bolivia Added

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. Each country’s designation is valid until November 8, 2024. Bolivia has been added to the list of countries eligible to participate in both programs.

DHS said the notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice (November 9, 2023). Similarly, the notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved prior to the date of publication. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B, DHS said.

Mongolia and the Philippines are eligible to participate in the H-2B program but not the H-2A program. Paraguay is eligible to participate in the H-2A program but not in the H-2B program.

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13. USCIS to Move Filing Location for Premium Processing Requests Filed With Immigrant Petition for Alien Workers

U.S. Citizenship and Immigration Services (USCIS) announced that it began transitioning the filing location for Form I-907, Request for Premium Processing, when filed with Form I-140, Immigrant Petition for Alien Workers, from the service centers to the USCIS lockbox on November 13, 2023.

This change does not apply to those who are filing Form I-907 for a currently pending Form I-140 or to those who are filing Form I-140 with an associated application (such as Form I-765, Form I-131, or Form I-485). USCIS said it will soon announce filing location changes for those forms, but for the time being, they should continue to be filed with the service centers.

Those mailing Form I-140 and Form I-907 together to USCIS should use the addresses listed in the USCIS alert. Starting December 13, 2023, USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

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14. December Visa Bulletin Includes Reminder About Expiring Non-Minister Religious Workers Category

The Department of State’s Visa Bulletin for December 2023 includes a reminder that the non-minister special immigrant program expired on November 17, 2023. No SR visas may be issued overseas, or final action taken on adjustment of status cases, unless Congress extends the program. Visas issued before that date were valid only until November 16, 2023, and all individuals seeking admission in the non-minister special immigrant category must have been admitted into the United States by November 16, 2023.

The bulletin notes that the SR category is listed as “Unavailable” for all countries for December. If Congress extends the category, the bulletin says, it is likely that it will become available immediately. If extended, the category will be subject to the same final action dates as the other employment fourth preference categories per applicable foreign state of chargeability.

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15. Potomac Service Center Will No Longer Accept Paper Responses

As of November 13, 2023, the Potomac Service Center (PSC) is no longer accepting mailed correspondence. All mailed correspondence intended for cases processed by the PSC must be mailed to the Texas Service Center (TSC), unless otherwise noted.

To avoid processing delays, USCIS said, applicants and their representatives should instead upload their responses to their USCIS online accounts (for receipt notices that start with IOE-) or mail them to the Texas Service Center at:

USCIS Texas Service Center
Attn: Digital RFE
6046 N Belt Line Rd. STE 114
Irving, TX 75038

USCIS strongly encourages use of an USCIS online account and self-service tools to upload responses for all online cases.

Details:

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16. ABIL Global: Spain

Spain has partially implemented European Union (EU) Directive 2021/1883 concerning the conditions of entry and residence for highly qualified employment of third-country nationals.

This implementation is being carried out through amendments to Spain’s Entrepreneurs Act 14/2013, establishing two schemes for highly qualified professionals (HQPs) within the Large Companies Unit. The most substantial features are:

National Residence Permit for Highly Qualified Professionals

This category already exists, but the permit’s requirements have been updated to include individuals with qualifications equivalent to at least level 1 of the Spanish Qualifications Framework or with professional experience of at least three years comparable to the required qualification. The labor market test does not apply.

The permit validity aligns with the employment contract duration plus an additional three months, with a maximum period of three years.

Residence Permit for Highly Qualified Professionals—EU Blue Card

This category is for third-country nationals with higher education qualifications of at least three years (equivalent to level 2 of the Spanish Qualifications Framework or level 6 of the European Qualifications Framework) or at least five years of relevant professional experience. For Information and communications technology managers and professionals, the required experience is reduced to three years within seven years before applying for an EU Blue Card. The labor market test does not apply.

The salary threshold ranges between 1.0 and 1.6 times the average gross annual salary, with a possibility of applying at 80 percent of the threshold under specific circumstances.

The permit validity aligns with the employment contract duration plus an additional three months, with a maximum period of three years.

Holders of an EU Blue Card from another Member State can stay up to 90 days in any 180-day period in Spain without authorization. To stay longer, they must apply for the EU Blue Card in Spain, with a streamlined process allowing them to start working upon application submission.

Dependents of EU Blue Card holders can apply for a residence permit in Spain unless they hold international protection status in Spain.

The implementation provides pathways for highly qualified professionals to work and reside in Spain, with adjustments made to existing permits and the introduction of the EU Blue Card system to facilitate mobility within the EU for qualified workers.

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New Publications and Items of Interest

Immigration agency X (formerly Twitter) accounts:

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

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

Alliance of Business Immigration Lawyers:

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

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ABIL Member / Firm News

Dagmar Butte and Cyrus Mehta were quoted by Forbes in Apple Settles $25 Million DOJ Immigrant Lawsuit, Regardless of PERM. Ms. Butte said, “The Apple settlement highlights the disconnect between real-world recruitment practices and the artificial nature of the mandated recruitment steps under PERM. This is especially true when you consider that most modern recruitment practices did not exist when PERM was rolled out in 2005.” She noted that even if the PERM recruitment structure is an invention of the Department of Labor, the underlying good-faith test of the labor market seems to require treating PERM positions no less favorably in the breadth of recruitment than regular positions. “I tell my clients to remember that this system was designed to protect U.S. workers, and not to facilitate hiring foreign nationals and they should view recruitment from that perspective. I also always ask them to tell me how they would recruit for the job if PERM were not a part of the process and make that part of the optional steps for professional positions.” Mr. Mehta said, “The safest course is for employers to hew as closely as possible to their non-PERM recruitment practices. Thus, while it is lawful for employers to ask applicants to send resumes only by postal mail under the PERM regulations, if the employer otherwise allows applicants to send their resumes electronically, the employer should be consistent and require applicants even responding to PERM recruitment to send their resumes electronically.” He said employers are caught between the conflicting requirements of two federal agencies.

Avi Gomberg was listed in Who’s Who Legal Canada 2023 and recognized as a Thought Leader and Global Leader for Corporate Immigration.

Charles Kuck spoke with the Atlanta Journal-Constitution and WABE News in Listen: Why Were Videos Leaked in Fulton Election Case? (available by subscription).

Mr. Mehta and Kaitlyn Box were cited by Forbes in SpaceX Court Win Could End DOJ Immigrant Lawsuits. The article cited their blog in explaining that “[t]he Appointments-Clause challenge by Space X, if not overturned by the Fifth Circuit or Supreme Court, could provide a pathway for other employers to fend off investigations and lawsuits by the [Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division] when they conduct recruitment under the foreign labor certification program.”

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: SpaceX’s Constitutional Challenge May Nix DOJ’s Ability to Bring Discrimination Claims Against Employers under Section 274B of the Immigration and Nationality Act, Including in the Labor Certification Context and Will the Immigration Provisions in the AI EO Bring About Meaningful Change Or Be Mere Window Dressing?

Mr. Mehta and Jessica Paszko co-authored a new blog post: How Prosecutorial Discretion Saved Our Client.

Mr. Mehta was quoted by Bloomberg Law’s Daily Labor Report in Apple’s Hiring Bias Case Reveals Big Tech Foreign Worker Dilemma. He said it’s hard to know how much of an enforcement focus the PERM process will receive beyond the two tech giants. He noted, however, that a recent court victory for Elon Musk’s SpaceX may open a pathway for other companies to challenge Department of Justice (DOJ) investigations. “One wonders why Apple and Facebook copped a settlement rather than contesting the lawsuit like SpaceX did,” Mr. Mehta said.

Mr. Mehta received the Corporate Immigration Lawyer of the Year award from Who’s Who Legal (WWL) on November 9, 2023, at a ceremony in London, England. He is also a WWL Global Elite Thought Leader.

WR Immigration has published a new blog post: Time to Feast: EB-5 Visa Outlook in FY 2024.

WR Immigration will host a webinar, December Investor Visa Outlook, as part of its “Chatting With Charlie” series.

Stephen Yale-Loehr was quoted by the Cornell Daily Sun in Dyson Students’ “Pathways of Belonging” Initiative Partners With Local Human Rights Office. The article discusses a panel held at Cornell on the immigration process and its effects on migrants. The article notes that during the panel discussion, Mr. Yale-Loehr discussed the broken immigration system and the challenges immigrants face as they try to find a sense of belonging amid their journey toward U.S. citizenship. He highlighted the overwhelming volume of pending cases, exacerbated by a shortage of immigration judges. Mr. Yale-Loehr said the backlog subjects many immigrants to years of waiting for crucial decisions.

Mr. Yale-Loehr was quoted by the New York Times in They Fled Climate Chaos. Asylum Law Made Decades Ago Might Not Help (available by subscription). He said, “The general public is becoming less accepting of asylum as a remedy because there are so many people being creative in applying for it. When people think of asylum, they imagine a government official pointing a gun at someone’s head. They don’t think of crop failures or sea levels rising because of climate change.”

Mr. Yale-Loehr was quoted by The Guardian in Abbott Slated to Sign Law Allowing Arrest of Anyone Crossing Texas Border Without Papers. He said, “Part of the reason for passing this law is to send a message to the Biden administration that Texas is going to go as far as it dares, and they don’t care whether they lose in court, they’re making a political statement.” Mr. Yale-Loehr said that a legal challenge against the Texas law, SB4, would probably succeed, but court battles can take several years. He said he is especially concerned about the new law’s interim effect on asylum seekers.

Mr. Yale-Loehr was quoted by the New York Daily News in Hochul Says NY Will Not Give State Work Permits to Migrants: “I’m Constrained by the Law.” He said that no state has ever tried to supersede the federal government’s role as the dispenser of work papers. He noted that the approach Hochul described would have invited long-running litigation and would not have helped the state in the short-term.

Mr. Yale-Loehr was quoted by AM New York in Tales of Survival: NYC Migrants Face Bureaucratic Challenges to Gain Work Visas After a Long Journey to America. “It seems to be hit or miss as to who gets parole versus being told just to file an asylum application,” he said. He noted, among other things, that migrants are confronted with a slew of legal obstacles when trying to avoid deportation and build a life in the United States. “There are so many challenges they have. Just on the legal front, understanding the work permit complexities, depending on what status they are. Trying to find an immigration lawyer or other advocate who can help them navigate this process. While the number of applications filed by a clinic in Lower Manhattan is impressive, he said, New York City needs to be more consistent in its efforts to help migrants apply for work permits, and it needs to step up its outreach so a greater number of newcomers are aware of the legal help available to them: “We need to have more money, and train more paralegals and more lawyers to be able to do this on an ongoing basis.”

Mr. Yale-Loehr was quoted by Univision in Academics Urge Congress to Enact Specific Immigration Reforms as Soon as Possible. The article discusses a white paper, Immigration Reform: A Path Forward, which Mr. Yale-Loehr co-authored. “We designed our proposals to address three areas where we see public support and support from a bipartisan Congress. Even in a gridlocked Congress, these targeted immigration reforms can be implemented,” he said. The article is in Spanish with English translation available.

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Government Agency Links

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

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

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

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ABIL Immigration Insider • December 4, 2022

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In this issue:

1. Under Court Order, OFLC to Propose Rescission of H-2B Registration Requirements and Provide Unique H-2B Temporary Registration Numbers – 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.

2. House Scheduled to Vote Next Week on Bill to Phase Out Per-Country Caps – The House of Representatives is scheduled to vote next week on a bill that would phase out per-country limits on employment-based green cards.

3. CBP Announces New U.S. Bridge Visa Foil – U.S. Customs and Border Protection announced that it has begun issuing a new visa foil with an image of San Francisco’s Golden Gate Bridge. The foil has been redesigned to replace the Lincoln visa foil.

4. USCIS Says Certain Afghan and Ukrainian Parolees Are Immediately Work Authorized – U.S. Citizenship and Immigration Services is providing employment authorization incident to status normally accorded to refugees and a no-fee initial (and replacement of an initial) employment authorization document to Afghan and Ukrainian parolees, based on recently passed laws.

5. USCIS Announces Expedited Work Authorization Processing, Expanded Fee Exemptions for Afghans – U.S. Citizenship and Immigration Services is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.

6. Dept. of Labor Announces Additional Listening Sessions on H-2A Program – The agency has added two more listening sessions.

7. OFLC Releases FAQs on Prevailing Wage Surveys Under 2022 H-2A Final Rule – The FAQs are intended to assist State Workforce Agencies and others in understanding the prevailing wage survey methodology of the final rule.

8. USCIS Accepting Only 8/19/22 Edition of N-648, Medical Certification for Disability Exceptions – U.S. Citizenship and Immigration Services is accepting only the 8/19/22 edition of Form N-648, Medical Certification for Disability Exceptions. USCIS revised the form and removed several questions.

9. Title 42 Policy Blocked Effective December 21 – On November 15, 2022, a U.S. District Court judge blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which the judge granted. The order will be effective December 21, 2022.

10. Visa Bulletin for December 2022 Includes Many Updates – The Department of State’s Visa Bulletin for December 2022 includes a variety of updates. The estimated employment-based annual limit will be 197,000 for FY 2023.

11. Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges – The Office of the Inspector General found that the ConsularOne program, initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, has experienced deficiencies and delays with profound implications.

12. USCIS Releases Tips on Avoiding Paper Filing-Related Delays – U.S. Citizenship and Immigration Services has released tips to avoid paper filing-related scanning delays.

13. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul – All operations are suspended at the U.S. Embassy in Kabul, Afghanistan. Diversity visa (DV) selectees for the 2023 DV program year with a case assigned to U.S. Embassy Kabul should request reassignment to another embassy or consulate that processes DV applications.

14. Labor Dept. Announces H-2A Visa Program Listening Sessions – In conjunction with the Department of Labor’s (DOL) previously announced intention to engage in additional rulemaking on the H-2A visa program for temporary agricultural employment of foreign workers, DOL announced two virtual listening sessions, one for employers and their representatives and another for workers and their advocates.

15. OFLC Releases Public Disclosure Data, Selected Program Statistics, H-2B Foreign Labor Recruiter List for Q4 of FY 2022 – The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released various data and statistics, and the latest H-2B recruiter list.

16. DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini – Each country’s designation is valid until November 9, 2023.

17. DHS Continues TPS and Related Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal – To ensure its continued compliance with several court orders, the Department of Homeland Security is automatically extending the validity of certain temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024.

18. E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts – Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding.

19. CIS Ombudsman Introduces Revised Form for Requesting Case Assistance – The updated Form 7001, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.

20. State Dept. Announces Full Resumption of Interviews for All Immigrant Visa Categories in Havana in January 2023 – The U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022.

21. President Accepts Resignation of CBP Commissioner – Chris Magnus was accused of unprofessional behavior by other officials working with him.

22. ABIL Global: Canada and Italy – A new bilateral agreement has been in force since November 1, 2022, for Italian and Canadian citizens between the ages of 18 and 35.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – December 2022

1. Under Court Order, OFLC to Propose Rescission of H-2B Registration Requirements and Provide Unique H-2B Temporary Registration Numbers

In response to a federal court order in Padilla Construction Company v. Walsh, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) 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 (NOA), 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:

Where an employer is determined to have a temporary need for services or labor, the NOA will provide the employer with a unique temporary need registration number, which may remain active for up to three years and which will be considered as one piece of evidence during [DOL’s] adjudication of the employer’s temporary need in future application filings. [DOL] will use a Notice of Deficiency to inform an H-2B employer when its temporary need for an application filing is in question, to request additional information, and also to inform an employer of deactivation of its temporary need registration number if the number has expired or if it appears that the employer no longer demonstrates a temporary need.

OFLC said the announcement of its future proposal to rescind H-2B registration requirements will not affect H-2B application filings for the 2023 peak application filing season for the second-half visa cap.

Details:

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2. House Scheduled to Vote Next Week on Bill to Phase Out Per-Country Caps

According to reports, Rep. Steny Hoyer (D-MD) said the House of Representatives is scheduled to vote next week on the Equal Access to Green cards for Legal Employment (EAGLE) Act of 2022 (H.R. 3648), a bill that would phase out per-country limits on employment-based green cards and raise annual limits on family-based green cards.

The bill appears to have substantial bipartisan support, although its prospects in the current session of Congress are uncertain as the lame-duck period draws to a close. Similar legislation passed the Senate unanimously in 2020 through a fast-tracked process but could not be reconciled with the House version.

In addition to eliminating per-country limits, the bill would also:

  • Establish nine-year transition rules for employment-based visas such as (1) reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability) and EB-3 (skilled and other workers) visas for individuals not from the two countries with the largest number of recipients of such visas, and (2) allot a number of visas for professional nurses and physical therapists.
  • Impose additional requirements on an employer seeking an H-1B visa, such as prohibiting (1) an employer from advertising that a position is only open to H-1B applicants or that H-1B applicants are preferred, and (2) certain employers from having more than half of their employees as nonimmigrant visa workers.
  • Require the Department of Labor (DOL) to create a publicly available website where an employer seeking an H-1B visa must post certain information about the open position.
  • Expand DOL’s authority to review and investigate H-1B applications for fraud or misrepresentation.
  • Allow certain people to obtain lawful permanent resident status if they (1) are in the United States as a nonimmigrant, (2) have an approved immigrant visa petition, and (3) have waited at least two years for a visa.

Details:

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3. CBP Announces New U.S. Bridge Visa Foil

U.S. Customs and Border Protection announced on November 21, 2022, that it has begun issuing a new visa foil with an image of San Francisco’s Golden Gate Bridge. The foil has been redesigned to replace the Lincoln visa foil. As each consular post depletes its Lincoln visa foil stock it will begin to issue the Bridge visa foil. All Lincoln Visas will remain valid until the printed expiration date, unless revoked or canceled.

Questions on boarding travelers should be directed to the appropriate Regional Carrier Liaison Group, Immigration Advisory Program Officer, or Joint Security Program Officer, U.S. Customs and Border Protection said.

Details:

“The U.S. Visa Will Have a New Image Printed on Its Foil. It Won’t Be Lincoln Anymore,” Miami Herald (AOL News), Dec. 3, 2022. https://www.aol.com/news/u-visa-image-printed-foil-165005973.html

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4. USCIS Says Certain Afghan and Ukrainian Parolees Are Immediately Work Authorized

Effective November 21, 2022, certain Afghan and Ukrainian parolees are work authorized incident to their parole status based on recently passed laws, U.S. Citizenship and Immigration Services (USCIS) announced. To implement the statutory language, “other benefits available to refugees,” USCIS is providing employment authorization incident to status normally accorded to refugees and a no-fee initial (and replacement of an initial) employment authorization document (EAD) to Afghan and Ukrainian parolees so they “receive the same treatment as refugees,” the agency said.

This policy applies to the following individuals if their parole has not been terminated:

  • Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR.” Those who are Afghan parolees covered under section 2502(b), P.L. No. 117-43, who did not receive an “OAR” class of admission on their Form I-94 should email U.S. Customs and Border Protection at [email protected] to update their class of admission, if appropriate;
  • Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and
  • Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between February 24, 2022, and September 30, 2023, and indicates Ukraine as the country of citizenship on the document.

For these parolees, their unexpired Form I-94 is an acceptable receipt they may present to employers to show their identity and employment authorization for the purposes of Form I-9, Employment Eligibility Verification. The receipt satisfies the Form I-9 requirement for 90 days from the date of hire (or in the case of reverification, the date employment authorization expires). After the 90-day period, parolees must present an EAD or unrestricted Social Security card and acceptable List B identity document from the Form I-9 Lists of Acceptable Documents (such as a state-issued driver’s license or identification card). Ukrainian and Afghan parolees must still file a Form I-765 to receive a physical EAD.

Effective November 21, 2022, USCIS is also exempting the fee to file Form I-765 for Ukrainian parolees filing for an EAD by mail. Afghan parolees under OAW are already exempt from the fee for an initial paper-filed Form I-765 (and a replacement EAD) through September 30, 2023.

Effective December 5, 2022, USCIS is able to process fee exemptions for online filings of Form I-765 for eligible Ukrainian and Afghan parolees.

Details:

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5. USCIS Announces Expedited Work Authorization Processing, Expanded Fee Exemptions for Afghans

U.S. Citizenship and Immigration Services (USCIS) is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.

Fee exemptions include:

  • An initial or replacement Form I-765, Application for Employment Authorization, for Afghan nationals who are applying for work authorization on the basis of parole (eligibility category (c)(11));
  • Form I-485, Application to Register Permanent Residence or Adjust Status, to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601, Application for Waiver of Grounds of Inadmissibility;
  • Form I-130, Petition for Alien Relative, filed with USCIS in the United States on behalf of any Afghan national (beneficiary) with a visa immediately available;
  • Form I-824, Application for Action on an Approved Application or Petition, for an Afghan holding a Special Immigrant Visa;
  • Form I-601, Application for Waiver of Grounds of Inadmissibility, for any Afghan national with an approved Form I-130 with a visa immediately available; and
  • USCIS Immigrant Fee (Form I-551) for Afghan nationals.

Expedited processing includes:

  • An initial and replacement Form I-765 for those applying for employment authorization on the basis of parole (eligibility category (c)(11));
  • Form I-485 for Afghan nationals seeking to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601;
  • Form I-589, Application for Asylum and for Withholding of Removal, filed by certain Afghan parolees as described in § 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act of 2021;
  • Form I-130, filed with USCIS in the United States on behalf of an Afghan national (beneficiary) with a visa immediately available, and any associated Form I-601; and
  • Form I-140, Immigrant Petition for Alien Workers, filed with USCIS on behalf of an Afghan national (beneficiary) with a visa immediately available.

Details:

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6. Dept. of Labor Announces Additional Listening Sessions on H-2A Program

The Department of Labor (DOL) previously announced that it intends to engage in additional rulemaking concerning the H-2A visa program for the temporary agricultural employment of foreign workers. DOL initially announced it would conduct two public virtual listening sessions to gather input about possible changes to the H-2A regulations. The agency has added two more listening sessions, one for employers and their representatives and another for workers and their advocates.

DOL said it is “interested in hearing about the experiences of workers and employers,” so it encourages “worker and employer representatives to include their members’ perspectives in their remarks or to invite workers or employers to share their experiences directly.”

Below are the dates, times, and registration links for each of the sessions:

Details:

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7. OFLC Releases FAQs on Prevailing Wage Surveys Under 2022 H-2A Final Rule

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released frequently asked questions (FAQs) on prevailing wage surveys under the 2022 H-2A final rule, “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States,” published on October 12, 2022, and effective November 14, 2022.

OFLC said the FAQs are intended to assist State Workforce Agencies (SWAs) and others in understanding the prevailing wage survey methodology of the final rule. OFLC said the updated methodology:

  • Allows the SWAs to conduct prevailing wage surveys or to leverage surveys conducted by other state agencies, state colleges, or state universities, provided that the survey meets the standards listed in 20 CFR § 655.120(c)(1);
  • Permits the SWAs to determine the best data collection period for a particular prevailing wage survey;
  • Enables the SWAs to make decisions about prioritizing precision, accuracy, granularity, or other quality factors in the data they use to inform prevailing wage findings, rather than requiring statistical validity;
  • Establishes standards to produce prevailing wage findings for crop activities and agricultural activities with few employers and U.S. workers;
  • Establishes a regulatory process for the SWAs to submit prevailing wage surveys to OFLC and for OFLC to review, approve, and post prevailing wages on OFLC’s Agricultural Online Wage Library (AOWL); and
  • Provides that a prevailing wage finding is valid for one year from the date of posting on OFLC’s website (i.e., AOWL) or until replaced with an adjusted prevailing wage finding, whichever comes first.

DOL provides additional information about prevailing wage survey methodological requirements in the preamble to the 2022 H-2A final rule. In particular, the agency called attention to pages 61689 through 61701.

Details:

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8. USCIS Accepting Only 8/19/22 Edition of N-648, Medical Certification for Disability Exceptions

As of November 21, 2022, U.S. Citizenship and Immigration Services (USCIS) is accepting only the 8/19/22 edition of Form N-648, Medical Certification for Disability Exceptions. USCIS revised the form and removed several questions, including dates of diagnosis and when the disability or impairment began; description of severity of each disability or impairment; effects on the applicant’s daily life; and an explanation of the doctor-patient relationship. Also, telehealth medical examinations are now permitted for Form N-648, among other changes.

USCIS will accept a Form N-648 after a Form N-400 is filed but recommends that applicants submit both forms at the same time.

Details:

Fact Sheet: Medical Certification for Disability Exceptions, Form N-648, English Language Exemptions, and Accommodations, USCIS. https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheet_N-648_MedCertForDisabilityExceptions.pdf

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9. Title 42 Policy Blocked Effective December 21

On November 15, 2022, U.S. District Court Judge Emmet Sullivan blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which Judge Sullivan granted. The order will be effective December 21, 2022.

The Trump administration instituted the policy in March 2020, with the stated purpose of preventing the spread of the COVID-19 virus. Title 42 was the subject of litigation, and the Biden administration was prevented from revoking the policy. In vacating Title 42, the court noted that the Centers for Disease Control and Prevention (CDC) recognizes that current public health conditions no longer require continuation of an order to keep migrants out of the United States, and that plaintiffs would continue to face substantial harm if they were returned to their home countries. In its order vacating the policy, the court included “all orders and decision memos issued by the [CDC] suspending the right to introduce certain persons into the United States.” The court also declared the Title 42 policy to be “arbitrary and capricious in violation of the Administrative Procedure Act.”

The Department of Homeland Security (DHS) said the delay in implementation of the court’s order “will allow the government to prepare for an orderly transition to new policies at the border. But to be clear, under the unopposed motion, Title 42 would remain in place for some period.”

Details:

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10. Visa Bulletin for December 2022 Includes Many Updates

The Department of State’s Visa Bulletin for December 2022 includes a variety of updates:

  • The estimated employment-based annual limit will be 197,000 for fiscal year (FY) 2023.
  • Establishment of final action dates and application filing dates for China and India will most likely be necessary in the coming months.
  • DOS has deemed it necessary to establish a worldwide employment second preference final action and application filing dates effective in December. Except for China and India, all countries are subject to a final action date of 01NOV22 and an application filing date of 01DEC22.
  • Fewer additional numbers will be available to India in the employment second preference category than originally estimated when the October and November final action and application filing dates were established. Therefore, further corrective action has been necessary to ensure that the limited supply of visa numbers is allocated by priority date.
  • High demand in the employment fourth preference category has necessitated the establishment of a worldwide final action date and application filing date for December. Except for El Salvador, Guatemala, Honduras, and Mexico, all countries are subject to a final action date of 22JUN22 and an application filing date of 22JUL22.
  • Higher than expected demand in the employment fourth preference category for El Salvador, Guatemala, and Honduras may necessitate corrective action.
  • The Certain Religious Workers (SR) category is set to expire as of December 16, 2022. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 15, 2022. Visas issued prior to that date will be valid only until December 15, 2022, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States no later than midnight December 15, 2022. If legislative action extends this category, the December dates will be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective December 16, 2022.

Details:

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11. Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges

The Department of State’s (DOS) Office of Inspector General (OIG) released its annual statement on November 18, 2022, on DOS’s major management and performance challenges. The latest report noted that OIG’s recent review of the Bureau of Consular Affairs’ ConsularOne Modernization Program found:

[I]n the 10 years since the program began in 2011, the responsible office had conducted a very limited pilot of just one component of the program—the customer-facing portion of the electronic Consular Report of Birth Abroad—and had continued to miss deployment dates for other components. Initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, the program has experienced deficiencies and delays with profound implications for the bureau’s three fundamental responsibilities: the issuance of passports and other documentation to citizens and nationals, the protection of U.S. border security and facilitation of legitimate travel to the United States, and ensuring the welfare and protection of U.S. citizens abroad.

OIG’s review this year found that the program’s leadership “was unable to provide a clear, uniform definition of the ConsularOne program, what components it included, and which contracts supported the program, creating confusion for stakeholders.” This lack of clarity “hindered leadership’s oversight of the modernization effort and the ability to hold staff accountable for their performance.”

Details:

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12. USCIS Releases Tips on Avoiding Paper Filing-Related Delays

On November 16, 2022, U.S. Citizenship and Immigration Services (USCIS) released tips to avoid paper filing-related scanning delays. USCIS said it scans and uploads many documents into electronic database systems as it moves toward an increasing electronic environment.

Examples of practices to avoid include attaching documents together with staples, paper clips or other methods; folding documents; using insertable tab dividers; submitting multiple copies unless required; and sending original documents unless required, among other tips.

Details:

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13. State Dept. Announces Diversity Visa Reassignment Procedures for Kabul

The Department of State announced on November 18, 2022, that all operations are suspended at the U.S. Embassy in Kabul, Afghanistan. Diversity visa (DV) selectees for the 2023 DV program year with a case assigned to U.S. Embassy Kabul should request reassignment to another embassy or consulate that processes DV applications. The selectee must be physically present in the consular district where the embassy or consulate is located at the time of the interview and have permission and the ability to remain in that country for a period sufficient to complete processing of the visa application.

To request reassignment, the DV selectee should e-mail the Kentucky Consular Center (KCC) at [email protected] with the subject line “Kabul Reassignment Request.” The email should include: (1) full name, (2) date of birth, (3) case number, and (4) name of the embassy or consulate where the selectee would like the case to be reassigned. After KCC reviews the request, the selectee will receive an email confirmation that the reassignment request was successful or, alternatively, requesting more information.

Those who are unable to travel to the embassy or consulate where the appointment has been scheduled may contact another U.S. embassy or consulate that processes DV applications to request a transfer.

Details:

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14. Labor Dept. Announces H-2A Visa Program Listening Sessions

In conjunction with the Department of Labor’s (DOL) previously announced intention to engage in additional rulemaking on the H-2A visa program for temporary agricultural employment of foreign workers, DOL is offering two virtual listening sessions, one for employers and their representatives and another for workers and their advocates, to gather input about the possible changes to the H-2A regulations.

The sessions are open to the public. The employers/representatives’ listening session will be held Tuesday, November 29, 2022, from 3 to 4 p.m. ET. The workers/advocates listening session will be held Wednesday, November 30, 2022, from 7 to 8:30 p.m. ET. Registrants will be emailed a Zoom link one day before the event begins. Questions should be emailed to [email protected].

Details:

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15. OFLC Releases Public Disclosure Data, Selected Program Statistics, H-2B Foreign Labor Recruiter List for Q4 of FY 2022

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

  • A comprehensive set of public disclosure data through the final quarter of fiscal year (FY) 2022 drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2021 through September 30, 2022 reporting period of fiscal year 2022.
  • Selected program statistics for the second quarter of fiscal year 2022 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
  • An updated list of the names of foreign labor recruiters for the H-2B program.

Details:

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16. DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini

The Department of Homeland Security (DHS), in consultation with the Department of State, announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. Effective November 10, 2022, DHS added the Kingdom of Eswatini (formerly Swaziland) to the list. Each country’s designation is valid until November 9, 2023.

DHS said that U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions, including those pending as of the date of publication of the Federal Register notice on November 10, 2022, “for nationals of countries not on the lists on a case-by-case basis only if doing so is determined to be in the interest of the United States.”

DHS said the notice does not affect the status of H-2 beneficiaries who are currently in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, the notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved before the date of publication. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B.

Details:

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17. DHS Continues TPS and Related Documentation for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

To ensure its continued compliance with several court orders, the Department of Homeland Security (DHS) is automatically extending the validity of certain temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal from the current expiration date of December 31, 2022, through June 30, 2024. The extension will be announced in a Federal Register notice to be published on November 16, 2022.

DHS explained that beneficiaries under the existing TPS designations for El Salvador, Nicaragua, Honduras, and Nepal; the 2011 designation of Haiti; and the 2013 designation of Sudan will retain their TPS while the court orders remain in effect, provided that their TPS is not withdrawn because of individual ineligibility. They may also apply under the more recent designations of Haiti and Sudan in 2021 and 2022, respectively. If granted TPS, they will retain TPS in accordance with their grants. Other individuals who have been newly granted TPS under the 2021 designation of Haiti and the 2022 designation of Sudan, but who did not have TPS at the time of those designations, are not covered by the notice. Their TPS grants remain valid in accordance with their individual approval notices from U.S. Citizenship and Immigration Services (USCIS).

The notice further provides information on the automatic extension of the validity of TPS-related employment authorization documents (EADs); Notices of Action (Forms I-797); and Arrival/Departure Records (Forms I-94) for beneficiaries under the TPS designations.

Details:

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18. E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts

E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and also on a regular basis.

User accounts should be deleted whenever a user is separated from the organization or the user’s role no longer requires access. Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding, E-Verify noted.

E-Verify also notified program administrators that their accounts are associated with their employers: “If you are hired by a new employer, you will need to create a new account. You are prohibited from using your old employer’s account to create cases for a new employer.”

Details:

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19. CIS Ombudsman Introduces Revised Form for Requesting Case Assistance

The Citizenship and Immigration Services (CIS) Ombudsman released an updated Form 7001, Request for Case Assistance.

The updated form, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.

Details:

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20. State Dept. Announces Full Resumption of Interviews for All Immigrant Visa Categories in Havana in January 2023

The Department of State (DOS) announced on November 10, 2022, that the U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. The U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022. Immigrant visa applicants whose appointments were originally scheduled in Georgetown will complete case processing there.

Embassy Havana will process diversity visa cases for applicants who reside in Cuba beginning in January 2023. DOS noted that Havana will not be an option on the dropdown menu when diversity visa selectees pick an interview location on the DS-260 immigrant visa application form. They should continue to select Georgetown for the DV-2023 program year. DOS said that applicants who provide a residential address within Cuba on their DS-260s will have their cases automatically reassigned to Havana, unless they have already been scheduled at Georgetown.

Immigrant visa applicants scheduled for January 2023 appointments in Havana will begin receiving appointment notices on or after November 10, 2022.

Details:

  • DOS notice,

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21. President Accepts Resignation of CBP Commissioner

On November 12, 2022, President Joe Biden accepted the resignation of Chris Magnus, U.S. Customs and Border Protection Commissioner. He had initially refused to step down after Alejandro Mayorkas, Secretary of Homeland Security, reportedly told Mr. Magnus on November 9, 2022, that he must resign or he would be fired. Mr. Magnus’s duties and direct reports have been shifted to other people, an unnamed DHS official said.

Mr. Magnus was accused of unprofessional behavior by other officials working with him, an earlier report says. Several Republicans in the House of Representatives, who criticized his handling of border issues, then urged President Biden to call for Mr. Magnus’ resignation. Citing the earlier report, the letter also alleged that Mr. Magnus “fails to attend high-level meetings,” engages in “constant complaining about his fellow senior officials” in DHS, “was caught sleeping through some of the meetings he actually attended,” and “fails to actively participate during internal calls with Secretary Mayorkas regarding border and immigration issues.”

Details:

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22. ABIL Global: Canada and Italy

A new bilateral agreement has been in force since November 1, 2022, for Italian and Canadian citizens between the ages of 18 and 35.

The new Agreement aims to promote, among the new Italian and Canadian generations, a better knowledge of culture, society, and languages through travel experiences, work, and life in the other country.

What does the agreement stipulate?

The bilateral youth mobility agreement between Italy and Canada offers professional training opportunities to young Italian and Canadian citizens between the ages of 18 and 35 who are entering the world of work.

For 2023, there will be 2,000 young people per country who will be able to benefit from this agreement. The new agreement replaces the 2006 Memorandum of Understanding between Italy and Canada on “Working Holidays” and expands its scope, with the Italian extension of the work permit to 12 months and the introduction of new categories of participants.

What new categories are now available?

In particular, the agreement includes the following three categories:

  • “Working Holiday,” for those who intend to travel to the host country and temporarily work during their stay;
  • “Young worker,” for those who have already obtained an employment contract in the host country, in support of their professional development or pertaining to their previous field of study; and
  • “International internship,” aimed at students enrolled in a course at a post-secondary level institute of study who have obtained an internship relevant to their field of study in the host country, as a requirement of their academic curriculum. Visa applicants must have a valid travel document with an expiration date of at least three months longer than that of the requested visa.

Interested parties must be between the ages of 18 and 35, inclusive, on the date on which the application is received.

The validity of the visa will be commensurate with the expected duration of the stay, in any case not exceeding 12 months.

Details:

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New Publications and Items of Interest

Department of State Q&A. The Department of State released questions and answers before an American Immigration Lawyers Association liaison committee meeting held November 3, 2022. Q&A topics included consular processing, interview waivers, E visas, Foreign Affairs Manual language issues and clarifications, entertainers and artists (B visas), B-1 visas for after-sale servicing of computer software, visa reciprocity for dual nationals, immigrant intent and nonimmigrant visa refusals, Afghan immigrant visas, inadmissibility issues and visa refusals, and other issues. https://travel.state.gov/content/dam/visas/AILA/AILA-Agenda-11-03-2022.pdf

Webinar on immigration reform in 2023. eCornell will host a free webinar on Tuesday, December 6, 2022, from 1-2 pm ET about the chances for immigration reform in 2023. Can lessons learned during the last round of reform be applied to future debates? Charles Kamasaki, author of “Immigration Reform: The Corpse That Will Not Die,” will discuss this topic with Cornell Law School professor Stephen Yale-Loehr and Wall Street Journal immigration reporter Michelle Hackman. The webinar is co-sponsored by the Cornell Migrations Initiative, the Cornell Law School Immigration Law and Policy Research Program, and Catholic Charities of Tompkins and Tioga Counties. For more information or to register, see https://ecornell.cornell.edu/keynotes/overview/K120622/. Those who register will have access to the recording afterwards regardless of whether they attend.

Webinar on immigration planning. WR Immigration attorneys Laura Bloniarz and Audrey Lustgarten will lead a presentation with a global immigration perspective geared for global mobility professionals. “Immigration Planning: Preparing for a Global Recession?” will be held Tuesday, December 13, 2022, at 11 a.m. PT. https://wolfsdorf.com/immigration-planning-preparing-for-a-global-recession/

Webinar on 2022 H-2A final rule. On November 17, 2022, the Department of Labor’s Office of Foreign Labor Certification (OFLC) hosted a public webinar to educate stakeholders, program users, and others on changes to the H-2A program made by the 2022 H-2A final rule. The presentation provided a detailed overview of how the 2022 H-2A rule will affect filing and processing, including preparations to the FLAG filing system, reviewing changes to ETA Forms 790/790A and 9142A, calculating surety bonds, and additional topics. The webinar was recorded and posted on the OFLC website along with presentation materials for future reference. https://www.dol.gov/agencies/eta/foreign-labor

Report on backlogs. The Cato Institute has published a briefing paper, “Processing Backlogs in the U.S. Immigration System: Describing the Scale of the Problem.” According to Cato, the paper summarizes basic facts about immigration backlogs, which the paper says comprise roughly 24 million cases across the U.S. government. Backlogs are not isolated within certain portions of the system but are rather a “systemic and growing problem for all four departments responsible for executing U.S. immigration law,” the paper says. It also shows that except for visa processing, backlogs have not arisen primarily from COVID-19 shutdowns but instead are “a consequence of inefficient agency processes that have caused wait times and backlogs to grow during the past decade. This also means that the agencies culpable for the problem will have the most important roles to play in fixing it.” https://www.cato.org/briefing-paper/processing-backlogs-us-immigration-system-describing-scale-problem

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:

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ABIL Member / Firm News

WR Immigration has published several new blog posts: “Immigration Planning: Preparing for a Global Recession?,” https://wolfsdorf.com/immigration-planning-preparing-for-a-global-recession/; and “EB-5 Project Due Diligence, After the EB-5 Reform and Integrity Act of 2022,” https://wolfsdorf.com/eb-5-project-due-diligence-after-the-eb-5-reform-and-integrity-act-of-2022/

Klasko Immigration Law Partners, LLP, has released Episode 31 in its Statutes of Liberty podcast series: “H-1B Layoff Information for Employees.” With a large wave of layoffs reported in November 2022, many H-1B visa holders worry about what their next steps should be. In this podcast episode, Anu Nair speaks with partner Bill Stock and senior associate Maria Mihaylova to discuss the potential impact of recent layoffs occurring in different industries and how they affect H-1B employees

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was quoted by Law360 in “Feds Grant Ukrainians, Afghans Immediate Work Authorization.” Mr. Kuck, who helps lead the IMMPact Litigation team representing Ukrainians in a lawsuit, said he was pleased that USCIS changed its policy. However, he said his clients also sought a court order forcing USCIS to repay Ukrainians who had already paid the work permit application fee. “We are exceptionally happy that USCIS finally did almost the right thing [and] we look forward to them doing the complete right thing shortly, or litigation will continue,” he said. The litigation had not covered Afghans who fled Afghanistan, but Mr. Kuck said his team intended to revise the case to include Afghans based on a September 2021 congressional measure that entitled Afghans to refugee benefits. https://www.law360.com/articles/1552063/feds-grant-ukrainians-afghans-immediate-work-authorization (registration required)

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by the Times of India in “Laid-Off Indian H-1B Workers Plead for Help as Clock Ticks.” He noted that when an H-1B worker is laid off or terminated, they get a 60-day grace period that allows them to remain in the H-1B status to find a new job. “The new employer must file the H-1B within the 60-day period. This 60-day period may not be enough to find a new job. The H-1B worker should negotiate that their employment with the company that is terminating them be extended as long as possible as the 60-day grace period will only trigger when the paid employment is terminated.” An Indian worker, he said, is disadvantaged because of green card backlogs caused by per-country limits. Mr. Mehta said that the Biden administration can help by changing the 60-day grace period rule to allow more time for H-1B workers to remain in the United States, but he noted that a rule change would take time. “The administration must also be inclined to do this,” he said. https://timesofindia.indiatimes.com/business/india-business/laid-off-indian-h-1b-workers-plead-for-help-as-clock-ticks/articleshow/95497003.cms

Mr. Mehta and Kaitlyn Box co-authored a new blog posting: “Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born, But the Biden Administration Can Provide Relief.” http://blog.cyrusmehta.com/2022/11/layoffs-will-hurt-nonimmigrant-workers-the-most-especially-indian-born-but-the-biden-administration-can-provide-relief.html

Mr. Mehta authored a new blog posting: “Why the AILA Law Journal Is Important.” http://blog.cyrusmehta.com/2022/11/3907.html

William Stock (bio: https://www.abil.com/abil-lawyers/william-stock/) has authored a new blog post: “I Have an H-1B Visa and Just Got Laid Off. What Do I Need to Know?”

WR Immigration has posted a new webinar: “H-1B Cap Season—How the Current Economic Climate Will Affect This Season.” Topics include the current labor and recruiting environment; key H-1B registration, lottery, and petition filing timelines; understanding current trends; and organization strategies and tips. https://wolfsdorf.com/webinar-h-1b-cap-season-how-the-current-economic-climate-will-affect-this-season/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Dallas Morning News in “Texas AG Ken Paxton’s Lawsuits Stymie Biden Agenda on Immigration and Healthcare.” He said, “For the time being, it seems like Paxton is as important as the [federal government] in deciding what immigration policy is implemented these days. Every lawsuit seems to end up in a temporary injunction prohibiting the Biden administration from changing immigration policy.” https://www.dallasnews.com/news/politics/2022/12/02/texas-ag-ken-paxtons-lawsuits-stymie-biden-agenda-on-immigration-and-healthcare/ (registration required)

Mr. Yale-Loehr was quoted by the Wall Street Journal in “Supreme Court Considers Challenge to Biden Policy Curbing Immigration Arrests.” He said, “The stakes are quite high. If the states win here, that means effectively that immigration policy will be run by the federal courts rather than the administration.” https://www.wsj.com/articles/supreme-court-considers-challenge-to-biden-policy-curbing-immigration-arrests-11669692774 (subscription required)

Mr. Yale-Loehr was quoted by Inside Higher Ed in “Should Fine Arts and Communications Qualify as STEM Degrees?” Regarding colleges aligning their course outcomes to the Department of Homeland Security’s list of qualifying fields and requirements for science, technology, engineering, and mathematics (STEM) degrees, Mr. Yale-Loehr said, “I do not consider this to be gaming the system.” Noting that the White House “very vigorously” consulted with numerous government agencies to ensure that additions to the list of STEM-designated degrees were appropriate, he said, “Ultimately Congress should decide how long international students should be able to work after they graduate and whether they should limit it to certain fields or have the same limit applied to all fields. But absent Congress’s ability to reform our broken immigration system, it is up to the agencies to decide how to interpret the existing law.” Many of the newly added qualifying fields fall within conventional STEM expectations, but others live within the intersection of science and the arts. Mr. Yale-Loehr also noted that efforts to extend or curb work authorization for international students on F-1 visas in STEM fields have a “long and tortured history.” Finally, he said, “More and more these days, [the United States] needs STEM workers to help innovate, and offering those degree holders who have serious STEM credentials an opportunity to work in the United States for three years is appropriate. But Congress ultimately should reform our broken immigration system, and as part of that effort they should take up this issue.” https://www.insidehighered.com/news/2022/11/29/fine-arts-communications-degrees-qualify-stem-immigrants

Mr. Yale-Loehr was quoted by Roll Call in “Supreme Court to Hear Argument Over Biden Immigration Priorities.” He said, “In the immigration context, courts have traditionally deferred to the executive branch because immigration touches on sovereignty and foreign relations. But if the high court greenlights the state lawsuit against the administration’s immigration enforcement priorities, “it means that the federal government is no longer getting the benefit of the doubt” in this context, he noted. A ruling that sides with the states on that issue, depending on how the justices write the opinion, could usher in a “major sea change” over how federal agencies establish internal guidance, he said: “It effectively gives states the power to overrule federal policy on immigration and allow states to challenge anything they want, not just in immigration but in other areas as well. If Congress says that you have to detain certain people who have committed certain criminal violations, but does not give the administration enough money to actually detain them, what is the administration supposed to do? I think it’s going to be a real conundrum, both for Congress and for the administration, if the Supreme Court rules in favor of Texas in this case on the merits.” https://rollcall.com/2022/11/28/supreme-court-to-hear-argument-over-biden-immigration-priorities/

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Government Agency Links

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

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

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

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ABIL Immigration Insider • December 5, 2021

/in /by

In this issue:

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, following new travel bans imposed on several countries, the Biden administration announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021.

2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions – The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The bill includes several immigration measures.

3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers – After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling.

4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations – The Department of Labor is proposing revisions to the methodology used to determine the AEWRs for non-range agricultural occupations in the H-2A temporary visa program.

5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant – In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. Other countries imposed similar bans.

6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit – USCIS expects to issue refunds by March 22, 2022.

7. USCIS Incorporates General Adjudications Guidance Into Policy Manual – In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next – The House of Representatives passed the “Build Back Better” budget reconciliation bill. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and raising some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, $2.8 billion for the Department of Homeland Security to reduce processing backlogs, and recapturing unused green cards that would otherwise expire each year.

9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations – On November 19, 2021, USCIS selected additional registrations to reach the FY 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees – USCIS automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1,

11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December – The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories are “Current” for December.

12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment – U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications.

13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses – Following recent litigation, U.S. Citizenship and Immigration Services announced that certain H-4, E, or L dependent spouses will qualify for an automatic work permit extension if certain conditions are met.

14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs – The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States – The Department of Homeland Security will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021.

16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic – The Executive Office for Immigration Review announced that its website will now be “the principal method of communication with the public” regarding COVID-19 pandemic-related notices.

17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022 – In 2022, in addition to the new Illinois facility, USCIS plans more filing location changes.

18. ABIL Global: Canada – This article discusses recent developments in COVID-19-related border measures.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – December 2021

1. Biden Administration Increases Travel Restrictions in Response to New ‘Omicron’ Coronavirus Variant

Last week, in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who had been in any of eight countries in southern Africa for the prior 14 days would be barred from entry into the United States. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. Since then, the new variant has spread to at least 23 countries, including the United States, and more are likely, according to the World Health Organization. The Biden administration subsequently announced additional measures, effective December 6, 2021, including a requirement that inbound international passengers take a COVID-19 viral test within a day of their departure, regardless of their vaccination status, and an extension of a mask requirement on domestic flights and public transportation—including buses, trains, planes, bus terminals, and airports—through March 18, 2021. Fines for noncompliance with the mask requirement range from $500 for a first offense to $3,000 for repeat violations.

For the testing requirement, the CDC rules state that those who recently recovered from COVID-19 may instead travel with documentation of recovery (i.e., a positive COVID-19 viral test result on a sample taken no more than 90 days before the flight’s departure from a foreign country and a letter from a licensed healthcare provider or a public health official stating that the passenger was cleared to travel).

Regarding the one-day requirement for testing, the CDC explained:

The 1-day period is 1 day before the flight’s departure. The Order uses a 1-day time frame instead of 24 hours to provide more flexibility to the air passenger and aircraft operator. By using a 1-day window, test acceptability does not depend on the time of the flight or the time of day that the test sample was taken.

For example, if your flight is at 1 pm on a Friday, you could board with a negative test that was taken any time on the prior Thursday.

The Biden administration indicated that more countries could be added to the restricted list if warranted. As this is a rapidly developing, fluid situation, travelers should check the latest updates before departure.

Details:

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2. Stopgap Funding Bill Averts Government Shutdown, Includes Immigration Provisions

The U.S. Congress passed a bill to extend funding through February 18, 2022, to prevent a federal government shutdown that otherwise would have begun December 4, 2021. The House of Representatives passed the bill by a vote of 221-212, and the Senate passed it by a vote of 69-28. President Biden signed it into law on December 3.

The immigration provisions include:

  • $7 billion to support Operation Allies Welcome, including resettlement of Afghans who aided U.S. military operations in Afghanistan
  • $1.6 billion for services for unaccompanied minors crossing the U.S.-Mexico border who are under the care of the Department of Health and Human Services

Details:

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3. Following Court Order, U.S., Mexico Announce Return to ‘Remain in Mexico’ Policy for Asylum Seekers

After the Biden administration’s suspension and then termination in June 2021 of the Trump-era policy known as “Remain in Mexico” or the “Migrant Protection Protocols,” under which asylum seekers who wish to enter the United States through Mexico await processing there, the policy is being reinstated due to a court ruling in August 2021. President Biden previously called the policy “inhumane” because it forced tens of thousands of people to wait for months in conditions that included violent crimes perpetrated against them, among other risks.

Under the reinstated policy, at Mexico’s request, COVID-19 vaccinations will be provided, exemptions will be possible for reasons including physical and mental health issues, and the time spent in the program will be limited to six months per applicant. The Department of Homeland Security also said that the U.S. government is committed to reimplementing the program “in a way that enhances protection for individuals enrolled in the program.” Among the measures being taken are the provision of access to shelters in Mexico and “safe transit” to and from ports of entry to the shelters, to enable individuals to attend court hearings. Additionally, DHS said, the government of Mexico “has committed to ensuring that individuals enrolled in [the program] are provided temporary legal status in Mexico and will, as a result, be able to work and access services in Mexico.” DHS also said that family units would not be separated for purposes of enrollment in the program. DHS said it would observe “non-refoulement” principles and that no individual who demonstrates a “reasonable possibility of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” or a “reasonable possibility of torture in Mexico” will be returned to Mexico involuntarily.

According to reports, the policy is expected to be re-implemented on December 6, 2021.

Details:

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4. Labor Dept. Proposes Revising Adverse Effect Wage Rate Methodology for H-2A Non-Range Occupations

The Department of Labor (DOL) is proposing revisions to the methodology used to determine the Adverse Effect Wage Rates (AEWRs) for non-range agricultural occupations in the H-2A temporary visa program. DOL said the proposed methodology “will strike a reasonable balance between the statute’s competing goals of providing employers with an adequate legal supply of agricultural labor and protecting the wages and working conditions of U.S. workers similarly employed.”

DOL proposes to determine AEWRs using wage data reported by the U.S. Department of Agriculture’s Farm Labor Survey (FLS) and DOL’s Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) survey. For the six occupations comprising the field and livestock worker (combined) category within the FLS, which DOL said constitute the majority of H-2A job opportunities, the agency proposes to set a single AEWR using the annual average hourly wage for field and livestock workers (combined) for the state or region, as determined by the FLS. For all other job opportunities, and in circumstances where the FLS does not report wage data for the field and livestock worker occupations, DOL proposes to use OEWS wage data to set the AEWR at the statewide annual average hourly wage for the occupational classification, or the national annual average hourly wage if statewide data is unavailable.

Details:

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5. Travel Bans Imposed Quickly in Response to New ‘Omicron’ Coronavirus Variant

In a rapidly developing situation, President Biden said that most travelers (excluding U.S. citizens and lawful permanent residents) who have been in any of eight countries in southern Africa for the prior 14 days will be barred from entry into the United States as of November 29, 2021. The countries include South Africa, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. He said this was in response to concerns and unknowns about a new coronavirus variant, called Omicron (B.1.1.529), which appears to be rapidly spreading in South Africa and present in other countries.

The Biden administration indicated that more countries could be added to the restricted list if warranted. Several other countries also issued similar travel bans and restrictions, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. The variant, which is being studied to determine its contagiousness, severity, and ability to circumvent immunity, has been detected in several countries in addition to Africa, including Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany.

Meanwhile, as of November 27, 2021, the Department of State issued a Level 4 Travel Health Notice for South Africa: “Do not travel to South Africa due to COVID-19.”

Details:

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6. USCIS Will Issue Refunds for Certain U Petitioners Who Submitted Work Authorization Applications; Some Rejected Applicants Can Resubmit

U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2021, that it mistakenly rejected certain Forms I-765, Application for Employment Authorization, from petitioners for U nonimmigrant status that were filed without a fee (or request for fee waiver) from June 14, 2021, through September 29, 2021. USCIS said it also mistakenly accepted fees where certain petitioners for U nonimmigrant status unnecessarily submitted fees with their I-765 applications.

USCIS expects to issue refunds by March 22, 2022. Individuals who filed an initial bona-fide-determination-related Form I-765 under the (c)(14) eligibility category from June 14 through September 29, 2021, whose Form I-765 was rejected for lack of fee, and who have not refiled, may resubmit Form I-765 without a fee, USCIS said.

Details:

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7. USCIS Incorporates General Adjudications Guidance Into Policy Manual

U.S. Citizenship and Immigration Services (USCIS) announced on November 23, 2021, that it is incorporating existing guidance from the Adjudicator’s Field Manual (AFM) into the USCIS Policy Manual. In general, USCIS said, the update does not make major substantive changes but simply consolidates and incorporates existing AFM guidance on general adjudication topics into the Policy Manual, streamlines USCIS immigration policy, and removes obsolete information.

Among other things, USCIS said the update “explains how officers should handle cases involving unreliable evidence, including consulting the Department of State’s Reciprocity Table, providing information on voluntary DNA collection options, and referring certain cases for in-person interviews. The update also clarifies “that when a petitioner, beneficiary, or authorized representative requests a copy of a signed sworn statement taken during an interview, officers provide a copy of the statement to the affiant (the person making the statement) at the conclusion of the interview where the statement was taken.”

Details:

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8. Build Back Better Act, Passed in House, Includes Immigration Provisions; Senate’s Next

The House of Representatives passed the $1.75 trillion “Build Back Better Act” budget reconciliation bill, 220-213, on November 19, 2021. It includes $100 billion toward immigration measures, including provisions paving the way for employees and others waiting in backlogs, and increases in some immigration-related fees. It also would provide for up to 10 years of work authorization and protection from removal for undocumented people who have been living in the United States since before 2011, and $2.8 billion for the Department of Homeland Security to reduce processing backlogs. The House bill would also recapture more than 200,000 unused green cards that would otherwise expire each year.

In addition, it would provide for diversity visas for those refused a visa, prevented from seeking admission, or denied admission to the United States solely because of certain executive orders and limitations on visa processing, visa issuance, travel and other effects associated with the COVID-19 pandemic.

The Senate will take up the bill next, likely in December. It remains to be seen whether the bill will become law in its current version or will be revised or defeated. Among various factors, Senate Parliamentarian Elizabeth MacDonough earlier rejected several previous immigration-related provisions in the draft bill, such as a path to citizenship for undocumented immigrants, but observers believe some provisions may survive her scrutiny, such as one that would recover roughly 400,000 currently unused green cards.

Below are selected highlights of the House-passed version of the “Build Back Better Act”:

Green Card Provisions for Immigrants Waiting in Backlogs

The House bill’s provisions would allow an employee waiting for more than two years in the backlog of approved legal immigration applications to pay a supplemental fee of $5,000 and file for adjustment of status without waiting for a priority date to become available. Those with approved green card applications awaiting visa availability could pay $1,500 to essentially jump the queue and file for adjustment.

Work Permits

As noted above, the House bill would allow about seven million undocumented immigrants living in the United States since before 2011 to stay in the United States through parole, and to be eligible for work permits valid for five years (renewable once), authorization to travel, and driver’s licenses if they file an application and pay a fee. They could also apply for health insurance under the Affordable Care Act. They would need to pass background checks.

Fee Increases

Examples of supplemental immigration-related fees that would be imposed by the House bill, if passed, include:

  • $100 for certain family-sponsored immigrant visa petitions (Forms I-130)
  • $800 for each employment-based immigrant visa petition (Forms I-140)
  • $15,000 for each employment-based fifth preference petition (Forms I-526)

Details:

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9. USCIS Conducts Third Random Selection From Previously Submitted FY 2022 H-1B Cap Registrations

U.S. Citizenship and Immigration Services (USCIS) announced that on November 19, 2021, it selected additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. This follows a second random selection in July 2021, after the initial selection in March.

USCIS said the petition filing period will begin November 22, 2021, and close on February 23, 2022. Those with selected registrations will receive a selection notice in their myUSCIS accounts with details about when and where to file.

Details:

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10. New Work Authorization Extensions Affect Form I-9 Completion for Certain Employees

Effective November 12, 2021, U.S. Citizenship and Immigration Services (USCIS) automatically extended work authorization for L-2 nonimmigrants who are the dependent spouses of L-1 nonimmigrants, and E nonimmigrants who are the dependent spouses of E-1, E-2, and E-3 nonimmigrants. USCIS also automatically extended work authorization for certain H-4 nonimmigrants who are dependent spouses of H-1B nonimmigrants.

Such individuals may receive automatic extensions of their employment authorization documents.

Details:

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11. China-Mainland Born EB-5 Non-Regional Center Visa Categories are Current for December

The Department of State’s Visa Bulletin for December 2021 notes that China-mainland born EB-5 (C5 and T5) non-regional center visa categories (i.e., “direct” EB-5 investors) are “Current” for December. Both the filing date and final action date are “Current,” meaning that in December, qualified Chinese EB-5 applicants in the visa phase can get green cards regardless of their priority date.

If China-mainland-born number use were to increase at a level that could potentially jeopardize visa availability under the overall FY 2022 employment-based fifth preference annual limit, it would then be necessary to once again impose a final action date, the bulletin says.

The bulletin also notes that:

  • Final action dates for the EB-5 (I5 and R5) regional center categories are “Unavailable” for December, but if legislative action extends this category for December, the final action dates would immediately become “Current” for December for all countries except China-mainland born I5 and R5, which would be subject to a November 22, 2015, final action date.
  • The non-minister special immigrant program expires on December 3, 2021. No SR green cards may be issued overseas or final action taken on related adjustment of status cases after that date. Visas issued before this date will have a validity date of December 2, 2021, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight, December 2, 2021. The final action date for this category is “Current” for December for all countries except for El Salvador, Guatemala, Honduras, and Mexico, which are subject to specific final action dates for December. If there is no legislative action extending this category for fiscal year 2022, the final action date would immediately become “Unavailable” for December for all countries effective December 3, 2021.

Details:

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12. ESTA Application Revisions to Include Mandatory Social Media Collection; DHS Seeks Public Comment

The Department of Homeland Security issued a 60-day notice and request for comments on revisions to the Electronic System for Travel Authorization (ESTA) for Visa Waiver Program travelers. Specifically, U.S. Customs and Border Protection is amending the ESTA application to change social media collection from optional to mandatory. CBP also will begin collecting biometric data for identity confirmation on ESTA applications. ESTA applicants will be prompted to take a selfie or “live” photo “to conduct a ‘liveness’ test to determine if the ESTA application is interfacing with a physically present human being and not an inanimate object, or if it is a photo of someone other than the lawful passport holder.” Respondents will be able to scan their passport biographic page to submit biographic information, including passport photo.

CBP will also implement the ESTA mobile application for Visa Waiver Program travelers. The mobile app will collect biometric data.

Details:

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13. Major Settlement Changes USCIS’ Work Authorization Policy for Certain H-4, E, and L Nonimmigrant Dependent Spouses

Following recent litigation, U.S. Citizenship and Immigration Services (USCIS) announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met. Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes, USCIS said.

In addition, USCIS will consider E and L dependent spouses to be employment authorized incident to their valid E or L nonimmigrant status, with a few exceptions.

USCIS is also rescinding the 2002 Immigration and Naturalization Service memorandum, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Abroad for L Blanket Petition.”

USCIS’ actions followed a settlement in Shergill v. Mayorkas. The settlement provided structural changes for nonimmigrant H-4 and L-2 spouses suffering from long-delayed processing times for work authorization applications. Also as a result of this settlement, as noted above, USCIS will now recognize that L-2 spouses are employment authorized incident to L-2 status. This means that spouses of transferred executives and managers no longer need to apply for work permits before working or starting a business in the United States.

Details:

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14. DHS Announces Countries Eligible for H-2A and H-2B Visa Programs

The Department of Homeland Security, in consultation with the Department of State, announced the countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) visa programs.

The Secretary of Homeland Security, with the concurrence of the secretary of state, has decided to:

  • Add Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for the H-2A program), Haiti, Mauritius, and Saint Lucia to the list of countries eligible to participate in the H-2A and H-2B programs; and
  • No longer designate Moldova as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program. Moldova’s eligibility for the H-2A program remains effective until January 18, 2022.

Except for Moldova, the designations took effect November 10, 2021, and will remain in effect for one year, until November 10, 2022.

U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions for nationals of countries not on the list on a case-by-case basis if doing so is determined to be in the interest of the United States.

Details:

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15. DHS Announces Fee Exemptions, Streamlined Processing for Afghan Nationals Resettling in the United States

The Department of Homeland Security (DHS) announced on November 8, 2021, that it will exempt filing fees and streamline application processing for Afghan nationals paroled into the United States for humanitarian reasons on or after July 30, 2021. DHS said these actions “will help facilitate their resettlement in the U.S. by streamlining the processing of requests for work authorization, Green Cards, and associated services.”

DHS is the lead federal agency coordinating Operation Allies Welcome, the ongoing all-of-government effort to resettle Afghans who fled their country following the Taliban takeover, including those who worked on behalf of the United States. Approximately 70,000 Afghans have arrived in the United States as part of Operation Allies Welcome, DHS said. Following the “biggest airlift in U.S. history,” DHS paroled many Afghan nationals, on a case-by-case basis, into the United States for urgent humanitarian reasons. DHS said that parolees may apply for work authorization using Form I-765, Application for Employment Authorization, on the basis of their parole. Afghan nationals can also apply for immigration benefits such as Afghan special immigrant status, lawful permanent residence, and asylum, the agency noted.

Details:

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16. EOIR Directs Public to Website for Updates in Response to COVID-19 Pandemic

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced that it is discontinuing issuance of formal documents reporting COVID-19 pandemic-related adjustments and protocols, and that its website will now be “the principal method of communication with the public” regarding such updates.

Details:

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17. New USCIS Lockbox Facility in Illinois, More Filing Location Changes Planned for 2022

U.S. Citizenship and Immigration Services (USCIS) plans to open a new lockbox facility in Elgin, Illinois, next year. The agency also has consolidated filing locations for certain employment-based forms to a single lockbox location. In 2022, USCIS plans more filing location changes, including moving the lockbox facility in Arizona from Phoenix to Tempe.

Details:

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18. ABIL Global: Canada

This article discusses recent developments in COVID-19-related border measures.

The government of Canada announced on November 26, 2021, that as a precautionary measure due to concerns about the new “Omicron” variant of concern, until January 31, 2022, Canada is implementing enhanced border measures for certain travelers.

Also, on November 19, 2021, the government of Canada announced upcoming adjustments to Canada’s border measures. In a press release, the government of Canada indicated that it will continue to prioritize the health and safety of Canadians. As vaccination levels, case counts, and hospitalization rates evolve, Canada will continue to consider further targeted measures at the borders—and when to lift or adjust them—to keep Canadians safe. As the pandemic situation remains fluid, travelers should check for the latest requirements before traveling.

According to the November 19 announcement, as of November 30, 2021, fully vaccinated Canadian travelers will no longer be subject to testing requirements for trips outside of the country for less than 72 hours; the list of accepted vaccines will expand to include Sinopharm, Sinovac, and COVAXIN; and vaccination will be required for travel within and out of Canada.

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada.

Below is a summary of developments:

What is changing now?

As noted above, due to concerns about the new variant, additional restrictions are being imposed on certain travelers. According to the November 26 press release, until January 31, 2022, Canada is implementing enhanced border measures for all travelers who have been in the Southern Africa region—including South Africa, Eswatini, Lesotho, Botswana, Zimbabwe, Mozambique, and Namibia—within the last 14 days before arriving in Canada. Foreign nationals who have traveled in any of these countries within the previous 14 days will not be permitted entry into Canada. They will be directed to be tested and to quarantine while they await their test results.

Canadian citizens, permanent residents, and people with status under the Indian Act, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, who have been in these countries in the previous 14 days will be subject to enhanced testing, screening, and quarantine measures. These individuals will be required to obtain, within 72 hours of departure, a valid negative COVID-19 molecular test in a third country before continuing their journey to Canada. Upon arrival to Canada, regardless of their vaccination status or having had a previous history of testing positive for COVID-19, they will subject to immediate arrival testing. All travelers will also be required to complete a test on day 8 after arrival and quarantine for 14 days. They must also have a suitable quarantine plan.

Short Trips

Effective November 30, 2021, full vaccinated individuals with right of entry to Canada who depart and re-enter the country within 72 hours of leaving Canada do not need to present a pre-entry molecular test. This exemption is only for trips originating in Canada taken by fully vaccinated Canadian citizens, permanent residents, or individuals registered under the Indian Act, who depart and re-enter by land or by air and can demonstrate that they have been away from Canada for less than 72 hours. This exemption extends to accompanying children under 12 and individuals with medical contraindications to vaccination.

For fully vaccinated travelers with right of entry into Canada who are traveling by air, the 72-hour period runs from the initially scheduled departure time for their flight leaving Canada to the scheduled departure time for their return flight to Canada. Travelers are responsible for maintaining proof of the 72-hour period to show airline/rail companies and border officials as required (e.g., boarding pass, travel itinerary).

Vaccination Status

Previously, to be considered fully vaccinated, travelers must have received two doses or a combination of the Pfizer, Moderna, or AstraZeneca/COVISHIELD vaccines, or a single dose of the Janssen (Johnson & Johnson) vaccine, at least 14 days before their entry to Canada. As of November 30, 2021, Canada expanded the list of COVID-19 vaccines that travelers can receive to be considered fully vaccinated for the purpose of travel to Canada. The list now includes Sinopharm, Sinovac, and COVAXIN, matching the World Health Organization Emergency Use Listing.

Travelers can receive their vaccines in any country, and must upload their proof of vaccination in English or French into ArriveCAN when traveling to Canada. If the proof of vaccination is not in English or French, travelers must provide a certified translation in English or French.

Travel Within and Out of Canada

Starting November 30, 2021, vaccination is required for travel via air or rail within and out of Canada. A valid COVID-19 molecular test is no longer accepted as an alternative to vaccination unless travelers are eligible for one of the limited exemptions, such as a medical inability to be vaccinated. Travelers should contact their airline or railway company to obtain the necessary form and submit it in accordance with their carrier’s approval process.

While Canadian citizens, permanent residents, and persons registered under the Indian Act can still enter Canada if they are unvaccinated or partially vaccinated, they are not permitted to travel beyond their point of entry within Canada on a connecting flight or by rail. These travelers should plan their return accordingly by selecting a Canadian airport that is closest to their final destination, and expect to be subject to testing and quarantine.

New ArriveCAN Requirements for Essential Travelers

As of November 30, 2021, all exempt essential service providers must identify their vaccination status in ArriveCAN, regardless of whether or not they are allowed to enter as unvaccinated.

If an exempt essential traveler previously created a reusable ArriveCAN receipt, they must either download the latest version of the free ArriveCAN mobile app or sign in to the web version, and re-submit all of their information, including the newly required information on proof of vaccination, to get a new exempt reusable ArriveCAN receipt. Once an exempt traveler creates a new reusable receipt, the receipt can be used for subsequent trips.

What will change on January 15, 2022?

The government of Canada also announced that as of January 15, 2022, certain groups of travelers who are currently exempt from entry requirements will only be allowed to enter the country if they are fully vaccinated with one of the vaccines approved for entry into Canada. These groups include:

  • Individuals traveling to reunite with family (unvaccinated children under 18 years of age will retain exemption if traveling to reunite with an immediate or extended family member who is a Canadian, permanent resident, or person registered under the Indian Act);
  • International students who are 18 years old and older;
  • Professional and amateur athletes;
  • Individuals with a valid work permit, including temporary foreign workers (outside of those in agriculture and food processing); and
  • Essential service providers, including truck drivers.

After January 15, 2022, unvaccinated or partially vaccinated foreign nationals will only be allowed to enter Canada if they meet the criteria for limited exceptions, which apply to certain groups such as agricultural and food processing workers, marine crew members, those entering on compassionate grounds, new permanent residents, resettling refugees, and some children under the age of 18. Exempt unvaccinated travelers will continue to be subject to testing, quarantine, and other entry requirements. Non-exempt unvaccinated or partially vaccinated foreign nationals will be prohibited entry into Canada.

What requirements are still in place?

For trips out of the country longer than 72 hours, all travelers eligible to enter Canada must complete the mandatory pre-entry molecular COVID-19 test. Antigen tests are not accepted. Travelers who have already had COVID-19 and recovered can provide proof of a positive COVID-19 molecular test taken at least 14 days and no more than 180 days before the initial scheduled departure time of their aircraft, or their entry into Canada by water or land. If arriving by air, they must provide proof of their test result to the airline before boarding their flight to Canada.

As has been the case since August 9, 2021, fully vaccinated travelers do not need to take a test on arrival unless they are randomly selected to complete a day 1 COVID-19 molecular test. All travelers who are randomly selected for the border testing surveillance program must complete the mandatory arrival test. However, they do not have to quarantine while awaiting the result.

Fully vaccinated travelers must also be asymptomatic, have a paper or digital copy of their vaccination documentation in English or French (or certified translation, along with the original), and provide COVID-19-related information electronically through the ArriveCAN app before arrival in Canada. They must still present a suitable quarantine plan, and must be prepared to quarantine in case it is determined at the border that they do not meet all of the conditions required to be exempt from quarantine. As with all other exempt travelers, they must follow public health measures in place, such as wearing a mask when in public, keeping a copy of their vaccine and test results, and keeping a list of close contacts for 14 days after entry to Canada.

Details:

ArriveCAN, https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19/arrivecan.html

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New Publications and Items of Interest

Webinar on H-2B filing. The Department of Labor’s Office of Foreign Labor Certification (OFLC) invites stakeholders to a webinar on best practices and helpful tips for preparing the H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices). Topics will include regulatory timeframes and filing requirements for H-2B applications with a start date of need of April 1, 2022, or later; procedures OFLC uses to randomly select H-2B applications for review and processing; recent enhancements to the Foreign Labor Application Gateway (FLAG) system; and helpful hints and reminders to avoid deficiencies during the application process. The webinar will be held Tuesday, December 7, 2021, from 2 to 3 p.m. ET. Announcement (scroll down to November 29, 2021):
https://www.dol.gov/agencies/eta/foreign-labor;
Meeting link: https://usdol.webex.com/webappng/sites/usdol/meeting/download/7aa105bc26df442d8eb30c56b4e0174f?siteurl=usdol&MTID=m799336e30be63f0c7567f2d5bd7ef01a

Information for Afghans. U.S. Citizenship and Immigration Services has released a webpage with links to information for Afghan nationals, including Afghan parolees working in the United States, information for Afghans relocated to the United States, special immigrant visas, asylum, changes of address, finding legal services, humanitarian parole, refugees, family-based immigration petitions, information sheets for Afghan parolees departing safe havens, Afghan parolee vaccination status attestation, and additional information. The information notes that for all Afghan parolees seeking to work, USCIS must approve their Form I-765, Application for Employment Authorization, before they can work legally in the United States. https://www.uscis.gov/humanitarian/information-for-afghans

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:

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ABIL Member / Firm News

News from Foster LLP:·         Avalyn Langemeier presented “U.S. Immigration: Recap of 2021 and Strategic Planning for 2022,” at the HR Houston November General Meeting on November 18, 2021. She discussed immigration issues in 2021 during the pandemic, including challenges related to travel, remote work, work authorization, government processing delays, and Form I-9 compliance. Based on lessons learned, this session helped the audience identify potential immigration issues affecting their businesses so they can prepare an immigration plan and strategy for 2022. https://www.hrhouston.org/events/EventDetails.aspx?id=1560064&group= ·         Brenda Hicks and Cody Wallace will discuss ongoing developments in global immigration laws and procedures on a worldwide scale and the effects they may have on the relocation of employees. The webinar will be held Wednesday, December 1, 2021. Click here to register: https://register.gotowebinar.com/register/916151990262688016 ·         Helene Dang will present “Managing Immigration Status Over the Long Haul Under Pandemic Restrictions” in a webinar with Worldwide ERC on December 2, 2021. She will discuss some immigration-related changes and effects of our collective pandemic experience and considerations for employers and employees to manage and maintain legal immigration work status in the long term. https://www.worldwideerc.org/webinar/managing-immigration-status-over-the-long-haul-under-pandemic-restrictions

Avalyn Langemeier and Liliana Kottwitz of Foster LLP presented a webinar, “Thinking Outside the Box: O-1 and P Visas, TPS and DACA,” on November 10, 2021. The webinar provided human resources professionals an overview of the O-1 visa category for individuals of extraordinary ability and P visas for entertainers and athletes. HR professionals also gained insight into Temporary Protected Status and Deferred Action for Childhood Arrivals for eligible individuals.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) authored “Action Needed in Ga. and Congress on Immigration Relief,” published by the Atlanta Journal-Constitution.

Cyrus Mehta and Kaitlyn Box‘s blog, “The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers,” was praised by LexBlog, which said they “make a convincing case” against recent travel bans, “expertly lay out the numerous flaws and hypocrisies inherent to these types of travel bans and illustrate the ways in which they defy scientific reality.” LexBlog said the blog is “an incredibly well-constructed takedown of these ill-conceived travel bans and I cannot commend Mehta and Box enough for their thoroughness.” LexBlog’s comments are at https://www.lexblog.com/2021/12/03/best-of-law-blogging-omicron-more-omicron-and-e-scooters/. The blog is at .

Mr. Mehta authored a new blog post, “The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged.” http://blog.cyrusmehta.com/2021/11/the-legal-basis-underpinning-the-new-automatic-extension-of-work-authorization-for-h-4-l-2-and-e-2-spouses-and-why-it-must-still-be-challenged.html

Mr. Mehta was quoted by the Economic Times on the 9% drop in H-1B holders in the United States. He said the drop was “clearly attributed to the Covid travel bans and the inability of nonimmigrants to get visas and come to the U.S. under approved H-1B petitions.” He said another way of looking at it is that “many in the U.S. who have been in H-1B status may have adjusted to permanent residence over the past year. Also, many who have pending adjustment applications, and have not yet received the green card, may have decided to remain in the U.S. as pending adjustment applicants with work permits rather than remain in H-1B status. Pending adjustment applicants find it easier to remain without an H-1B and have only a work permit as they can exercise job portability more easily.” https://economictimes.indiatimes.com/nri/migrate/9-drop-in-h-1b-visa-holders-in-the-us-highest-in-a-decade/articleshow/88050668.cms

Mr. Mehta was quoted by India West in “USCIS Reaches Settlement With H-4 Workers, Allowing Automatic Renewal of Employment Authorization for Some.” He tweeted, “USCIS needs to be sued again. H-4s who file EAD renewals concurrently with an I-539 extension may receive only a brief auto-extension, just to the end of their current I-94 date, but most existing EADs end with the current I-94 date.”

Wolfsdorf Rosenthal LLP has published several new blog posts: “What Doees the December 2021 Visa Bulletin Mean for New ‘Direct’ EB-5 Investors?”; “Immigration Update”; “Good News: USCIS Announces Plans to Ease Work Authorization Process for Certain E, L, and H-4 Spouses”; “White Paper: Making Travel Plans? Here’s the Short-Term Outlook”; “Success Story: EB-1A Approved in Just a Few Days!”; and “Direct EB-5 Due Diligence: Buyer Beware (and Immigration Attorneys Be Cautious). https://wolfsdorf.com/news/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in two articles:

  • “Democrats Get Ready to Deliver Their ‘Plan C’ With a Third Immigration Proposal to a Key Senate Figure,” Nov. 29, 2021. Mr. Yale-Loehr said the social spending budget bill approved by the House of Representatives “includes a series of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States. 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 recapture 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/democratas-senado-se-alistan-entregar-plan-c-de-inmigracion-a-parlamentarian (Spanish, with English translation available)
  • “The Deadline to Comment on the New Regulation for DACA Published by the Government is Over,” Nov. 29, 2021. Mr. Yale-Loehr said, “The proposed rule would not make major changes to the existing deferred action program for children. Instead, the 205-page rule is an effort to bulletproof the existing program from litigation.” He recalled that in July, “a federal district judge in Texas ruled that the DACA program, initiated in 2012 by then-President Obama through executive action, violated the Administrative Procedure Act (APA).” He noted that the Department of Homeland Security’s (DHS) proposed rule “becomes more important now that the Senate parliamentarian has twice ruled that legalization provisions for DACA recipients cannot be included in the budget reconciliation bill. While Democrats will try to find other ways to provide a path of legalization for Dreamers, the proposed rule could be a temporary safety net if the legislation fails.” After the deadline for public comment, DHS will need to review them and issue a final rule. “The process could take several months before this rule takes effect,” he said. https://www.univision.com/noticias/inmigracion/finaliza-plazo-comentar-nuevo-reglamento-daca-publicado-por-gobierno (Spanish, with English translation available)

Mr. Yale-Loehr authored a new blog post, “Breaking Down the Build Back Better Act,” published by Global Detroit. https://globaldetroitmi.org/prof-stephen-yale-loehr-breaking-down-the-build-back-better-act/

Mr. Yale-Loehr was interviewed on National Public Radio’s The World about the immigration provisions in the social spending bill. The interview is at https://theworld.org/media/2021-11-11/latest-immigration-plan-congress-falling-short

Mr. Yale-Loehr was quoted by Univision in “Temporary Residence and Travel Permits: Immigration Measures Approved in Biden’s Social Plan in the House.” He said that “[t]he 2,135-page budget bill includes a number of important immigration provisions, including up to 10 years of work authorization and protection against deportation for undocumented people living in the United States 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-based and family-sponsored green cards that have not been used and that otherwise would expire at the end of each year. If enacted as is, the House bill would not offer a path to legalization for the roughly 10 million noncitizens who lack immigration status. However, the immigration provisions of the House bill would still constitute the most significant immigration changes in decades and would provide a beginning to fix our broken immigration system.” https://www.univision.com/noticias/inmigracion/residencia-temporal-permisos-de-viaje-claves-plan-migratorio-aprobado-camara-representantes-presupuesto (Spanish, with English translation available)

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Government Agency Links

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

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

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

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