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ABIL Global Update • October 2024

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Headlines:

1. BELGIUM – Each region now has its own law regarding work authorization and work permits.

2. CANADA – The Canadian government has acted to further limit the number of temporary residents in Canada.

3. SCHENGEN AREA – The Entry/Exit System (EES) will begin operations on November 10, 2024.

4. UNITED KINGDOM – On September 10, 2024, the Home Office released details of the full rollout of the Electronic Travel Authorisation scheme.

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

ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – October 2024

Details:

1. BELGIUM

Each region now has its own law regarding work authorization and work permits.

In Belgium, the authority to issue work authorizations and work permits to employees and professional cards to the self-employed is regional. There are three regions in Belgium: Flanders, Brussels, and Wallonia. Each region now has its own legislation regarding work authorizations/work permits:

  • The Flanders law took effect January 1, 2019;
  • The Wallonia law took effect June 1, 2019, but was updated recently as of September 1, 2024;
  • The Brussels region has implemented a new law effective October 1, 2024. The aim is to facilitate the employment of foreign nationals, but there is also an increased focus on compliance.

The current salary and professional qualification eligibility requirements for “fast track” (no resident labor test is required) permits for highly skilled employees, in particular the standard highly skilled permit and the Blue Card, are summarized below:

Highly Skilled Permit

Salary/QualificationsFlanders RegionBrussels RegionWallonia Region
Salary threshold (amounts for 2024)Annual gross salary threshold

– General: 46,632.00 €

– Exception:
37,305.60 € (80%) for locally employed employees < 30 years, nurses, and teachers

Monthly gross base salary threshold

3,591.12 €

Annual gross salary threshold

– General: 50,310.00 €

– Exception:
40,248.00 € (80%) for employees < 30 years

Professional qualificationsHigher education degreeHigher education degreeAt least 1 of 3 requirements below:

– Higher education degree

– ICT manager or ICT specialist

– At least 3 years of relevant professional experience during 7 years preceding the application

 

Blue Card

Salary/QualificationsFlanders regionBrussels regionWallonia region
Salary threshold (amounts for 2024)Annual gross salary threshold:

60,621.60 €

Monthly gross base salary threshold

4,604.00 €

Annual gross salary threshold

– General: 65,053.00 €

– Exception:
52,042.00 € (80%) for higher education degree < 3 years old

Professional qualifications– Higher education degree, or

– At least 3 years of relevant professional experience during 7 years preceding the application in/for function as ICT manager (ISCO-08 code 133) or ICT specialist (ISCO-08 code 25)

– Higher education degree, or

– At least 3 years of relevant professional experience during 7 years preceding the application in/for function as ICT manager or ICT specialist

– Higher education degree, or

– At least 3 years of relevant professional experience during 7 years preceding the application in/for function as ICT manager or ICT specialist

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2. CANADA

The Canadian government has acted to further limit the number of temporary residents in Canada.

As the Canadian government continues its drive to reduce the number of temporary residents in Canada amid continued high costs of living, continued housing unaffordability, and increasing unemployment, particularly among youth, it has announced new measures to do so. The government target is to reduce the number of temporary residents from 6.5% of Canada’s total population to 5%.

Caps on International Students

As part of the overall plan, the Canadian government is clearly reducing the number of international students in Canada. It implemented a number of measures earlier this year to do so. It introduced a cap to be distributed across the provinces and territories based on their population sizes. It also implemented a measure requiring study permit applicants to have more funds, at least $20,635, available to meet the cost of living in Canada. Recently, the government announced that it intends to reduce the number of study permits issued to 437,000 in 2025.

The government will allocate 12% of study permit spaces to master’s and doctoral students. Master’s and doctoral students will now also be required to submit a provincial or territorial attestation letter when applying.

Changes to Canadian Post-Graduation Work Permits

An announcement earlier this year confirmed that foreign students who graduate from a program under a Public College-Private Partnership are not eligible for Post-Graduation Work Permits (PGWPs). The new announcement will require those who wish to apply for PGWPs to complete a designated English or French language proficiency test, which includes CELPIP, IELTS, PTE Core, TEF Canada, or TCF Canada, and achieve a minimum level of language proficiency. Graduates of universities will need to achieve a Canadian Language Benchmark (CLB) level of 7, which is roughly equivalent to an adequate intermediate level. Graduates of colleges will need to achieve a CLB level of 5, which is roughly equivalent to an initial intermediate level. This new requirement comes into effect November 1, 2024.

To help address labor shortages, particularly in the skilled trades, the government has announced that graduates of public colleges in fields where there are long-term shortages will now be eligible for PGWPs of up to three years.

Open Work Permits for Spouses or Common-Law Partners of Workers

Eligibility of spouses of foreign workers to work in Canada will be limited to those who are working in management or professional occupations or in sectors with labor shortages. Details have not been provided yet, but this could have potentially far-reaching consequences, with many foreign workers choosing to come to Canada to work only because they knew their spouses would be allowed to work as well. As they say, “the devil is in the details.” It is possible that eligibility could be limited to training, education, experience and responsibilities (TEER) category 0 (managerial) or TEER 1 (usually requiring a university degree) occupations, but until we receive details from the government, it is difficult to know how significant this initiative will be and how it might affect employers and families. It is also unknown which sectors will be designated as those with labor shortages, but occupations recently being targeted for the purpose of permanent residence are likely to be included, such as health care; science, technology, engineering, and mathematics; trade; transport; and agriculture and agri-food.

Open Work Permits for Spouses or Common-Law Partners of Students

Earlier this year, the Canadian government limited the eligibility of open work permits for spouses of international students to those in master’s and doctoral programs only. The government has now announced a further limitation. Specifically, open work permits will now only be available to spouses of international students enrolled in master’s and doctoral programs that are at least 16 months in duration. Spouses of students in master’s degree programs that are only 12 months in duration will no longer qualify for an open work permit.

An Era of Fewer Immigrants

After record temporary and permanent resident levels in 2022 and 2023, the government is clearly focused on reducing the number of temporary residents in Canada. To achieve this, clearly fewer temporary residents, whether foreign students or foreign workers, will be admitted. September’s announcements will certainly have a cooling effect on the popularity of Canada’s foreign student program and potentially on the ability of companies to attract foreign talent to Canada. It is unlikely that the permanent resident targets will be reduced significantly when immigration levels are announced on November 1, since another reason to reduce the number of temporary residents in Canada is to ensure that they are able to transition to permanent resident status. Unfortunately, though, some foreign students and foreign workers already in Canada will not have a path to permanent residence and will likely elect to leave Canada. Over the next few years, we can expect fewer overall numbers of temporary residents in Canada.

The government’s policies will make it more difficult for many people to come to Canada and for many people to stay in Canada. Many thousands of temporary residents and employers will be affected by these measures.

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3. SCHENGEN AREA

The Entry/Exit System (EES) will begin operations on November 10, 2024.

European Union (EU) Commissioner Ylva Johansson officially announced that the Entry/Exit System (EES) will begin operations on November 10, 2024. This system, a key part of the EU’s strategy to strengthen its borders, will begin tracking the entry and exit of non-EU nationals visiting the Schengen Area starting on that date.

The EES is designed to replace the traditional method of manually stamping passports with a more advanced digital system. It will collect and store biometric data, such as fingerprints and facial images, along with details of the traveler’s entry and exit, to better monitor and manage the flow of visitors. This new system aims to enhance border security, prevent illegal stays, and streamline the border-crossing process.

The launch of the EES is just the beginning of the EU’s broader border management transformation. Following closely, the next major step will be the introduction of the European Travel Information and Authorization System (ETIAS), which is scheduled to go live in 2025.

ETIAS will require visa-exempt non-EU nationals to obtain travel authorization before entering the Schengen Area.

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4. UNITED KINGDOM

On September 10, 2024, the Home Office released details of the full rollout of the Electronic Travel Authorisation (ETA) scheme.

Nationals of non-European Union (EU)/European Economic Area (EEA) countries (including the United States, Canada, Australia, and New Zealand) who want to visit the United Kingdom (UK) without a visa will need an ETA starting on January 8, 2025. Nationals of EU and EEA countries plus Switzerland—but not Ireland—will need an ETA starting on April 2, 2025.

What is the ETA scheme?

The UK is implementing a U.S.-style electronic pre-travel authorization scheme of its own. The ETA will require non-visa nationals (those who do not require a visa before travelling to the UK as a visitor, and so are not on the visa national list) to apply for electronic pre-travel authorization.

Non-visa nationals will need an ETA if they are entering as a visitor and do not have a visa. If they have a Skilled Worker visa or a family visa, they will not need to apply for an ETA. For UK employers, the biggest impact will be on people entering the UK as business visitors.

The ETA started in October 2023 for Qatari nationals before extending to nationals of Bahrain, Jordan (although a new rule change means Jordanians must apply for a visa to visit the UK), Kuwait, Oman, Saudi Arabia, and the United Arab Emirates in February 2024.

Timing of the Full Rollout

It has been confirmed that the ETA will be rolled out to the remaining applicable countries as follows:

  • On or after January 8, 2025 (applications for an ETA can be submitted starting on November 27, 2024) for all applicable non-EU/EEA countries (the United States, Australia, Canada, and New Zealand; Antigua and Barbuda; Argentina; Barbados; Belize; Botswana; Brazil; Brunei; Chile; Colombia; Costa Rica; Grenada; Guatemala; Guyana; Hong Kong Special Administrative Region (including British National (Overseas)); Israel; Japan; Kiribati; Macao Special Administrative Region; Malaysia; Maldives; Marshall Islands; Mauritius; Mexico; Federated States of Micronesia; Nauru; Nicaragua; Palau; Panama; Papua New Guinea; Paraguay; Peru; St. Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Samoa; Seychelles; Singapore; Solomon Islands; South Korea; Taiwan; the Bahamas; Tonga; Trinidad and Tobago; Tuvalu; and Uruguay.
  • On or after April 2, 2025 (applications for an ETA can be submitted starting on March 5, 2025), all applicable EU and EEA countries plus Switzerland—but not Ireland—including Andorra; Austria; Belgium; Bulgaria; Croatia; Cyprus; Czechia (Czech Republic); Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Italy; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; Netherlands; Norway; Poland; Portugal; Romania; San Marino; Slovakia; Slovenia; Spain; Sweden; Switzerland; and Vatican City.

How can an ETA be refused and what does it mean?

For most people, applying for an ETA will be nothing more than an administrative hurdle—much like submitting an application through the Electronic System for Travel Authorization before traveling to the United States. But for some it will cause serious difficulties and mean that they may not be able to travel to the UK.

There are various “suitability” requirements when applying for an ETA, including, for example, whether the applicant has a criminal conviction, has previously overstayed the period of admission on a UK visa, or has previously had a UK visitor visa application refused. To date, non-visa nationals may have been granted entry to the UK as a visitor despite a criminal conviction. The ETA will change that because criminal convictions will need to be declared. If the ETA is refused because the applicant has a criminal conviction, they will need to apply for a visitor visa before traveling to the UK. Such an application may still be refused owing to the same/similar criminality rules.

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5. New Publications and Items of Interest

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

Join a panel of experts from the Cornell Law School immigration law and policy research program to learn what immigration laws and policies might change, both in the lame-duck session after the election and in 2025. The free webinar will be on Wednesday, November 20, 2024, from 1-2 p.m. ET. To register, go to https://ecornell.cornell.edu/keynotes/overview/K112024/. If you can’t attend the webinar live, you can register to get the recording afterwards. The webinar is sponsored by the Cornell Migrations Initiative, the Cornell Population Center, the Cornell Jeb E. Brooks School of Public Policy, Catholic Charities Tompkins/Tioga Immigrant Services Program, and the Cornell Law School Migration and Human Rights Program.

Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Loan Huynh was quoted by Bloomberg Law in Foreign Farmworker Safeguards in Doubt as DOL Tests Its Power. Parts of the regulations will offer clarity to employers navigating the H-2A program, such as provisions addressing withholding of worker documents, but the limited geographic scope of the injunction in Kansas v. DOL will likely lead to more confusion among agricultural employers, she said: “I would advise my employers that they need to follow the rule until we get guidance from the Department of Labor otherwise.”

Klasko Immigration Law Partners, LLP, has published several client alerts: DHS Implements ‘Keeping Families Together’ Parole-in-Place Program, Texas Files Complaint and H-4 Spousal Work Authorization Wins Against Legal Challenge.

Alison Li, of Klasko Immigration Law Partners, LLP, has authored a blog post: Complex Issues Encountered to Remove Conditions on an EB-5 Green Card.

Charles Kuck and Stephen Yale-Loehr were quoted by Bloomberg Law in GOP States Sue to Overturn Biden Immigrant Parole Program. “The logic of the challenge, that single parent households and separating families is better for a state than keeping families together, is something that can only come out of the mind of a true nativist and hater of immigrants,” he said. Mr. Kuck and Mr. Yale-Loehr noted that parolees admitted under the program would be eligible for benefits, including Medicaid and Food Stamps. Mr. Yale-Loehr said that claims that the program exceeds agency authority echo challenges to the Deferred Action for Childhood Arrivals program.

Mr. Kuck was quoted by CNN in Elon Musk is One of Immigration’s Harshest Critics. He Once Described His Past Immigration Status as a “Gray Area.” Commenting on Elon Musk’s remark that his early immigration status in the United States was a “gray are,” Mr. Kuck said, “Actually, there are no gray areas in immigration.” Instead, he said, there are people who get caught for violations and people who don’t. “I will tell you, as somebody who’s done immigration law for 35 years, that a lot of immigrants leave their immigration history behind, right? They want to move on to their new life. But when you speak out against other people’s immigration journey, then yours becomes subject to scrutiny. … If you live in a glass house, you shouldn’t throw stones.”

Mr. Kuck was quoted by the Times of India in USCIS’ New Insignia Features the Statue of Liberty With the Tagline: Upholding America’s Promise. Mr. Kuck said, “You spent money and time on this? Why? It’s a LOGO! Just do your job and adjudicate the applications.”

Mr. Kuck authored a new blog post: How Will Trump Destroy the U.S. Legal Immigration System.

Mr. Kuck was a guest on Episode 7 of the Immigration Ain’t Easy podcast.

Cyrus D. Mehta & Partners PLLC announced its acquisition of Claudia Slovinsky and Associates, PLLC, significantly expanding and deepening its immigration law practice. Both law firms are renowned for providing exceptional legal representation in a wide range of immigration matters. They have developed equal expertise in addressing the needs of both corporations and individuals. Both firms are deeply committed to delivering the highest quality legal services to immigrants, their families, and employers. They believe in the importance of positive outcomes. As part of this transition, Cyrus D. Mehta & Partners is pleased to welcome Dominic Kong, a highly skilled and experienced immigration attorney with deep expertise in employment-based immigrant and nonimmigrant visa petitions. The firm also welcomes Reynaldo Pabon, who comes with law firm management experience and is joining as a management analyst to enhance workflow and technology.

Cyrus Mehta authored a new blog post: Making the Case of the Manager under the L-1A Visa Whose Subordinates Are AI Bots.

Mr. Mehta and Kaitlyn Box co-authored several blog posts: While the Dogs and Cats of Springfield, OH are Safe, the Haitian Immigrants Are Not; Parole in Place – A Means to an End or An End in and of Itself?; The Perils of Claiming the Foreign Earned Income Exclusion When Sponsoring an Immigrant on an Affidavit of Support; and Court Upholds Regulation Issuing Employment Authorization to H-4 Spouses Even After the Demise of Chevron Deference.

Mr. Mehta and Ms. Box were invited speakers at a Strafford Webinar, “Immigration Law After Loper Bright Decision: Anticipated Agency Impact, Ramification for Attorneys and Clients,” on September 26, 2024. The speakers discussed the ramifications of the Loper Bright decision on immigration law. Specifically, the speakers explored Loper Bright‘s impact on the interpretation of immigration statutes and policies and its impact on clients. A recording of the event is available.

Angelo Paparelli of Seyfarth Shaw LLP authored a blog post: Pound Wise, Penny Foolish—Federal Court Affirms Employer Choice of Immigration Filing Fees.

Mr. Yale-Loehr was quoted by Newsweek in Trump Has Pledged to Deport Some Legal Immigrants. Could He Do That? Mr. Yale-Loehr said, “In general, deportation is for people who lack immigration status. People here on parole or temporary protected status have a status, so they shouldn’t be put into deportation proceedings unless a separate ground of deportability (e.g., a criminal conviction) applies to them.”

Mr. Yale-Loehr co-authored an article, The New D3 Waiver Process: A Tool to Help Over One Million Dreamers, published in 29 Bender’s Immigration Bulletin 1585 (Sept. 15, 2024).

Mr. Yale-Loehr co-authored an op-ed,“Building Startups, Not Walls: High-Skilled Immigration Policy Changes in the US,” in The Well News, highlighting the International Entrepreneur Parole program.

Mr. Yale-Loehr spoke at a webinar, Preparing for Change: How a New Administration Could Impact DACA Recipients, on September 25, 2024. The webinar was sponsored by Immigrants Rising, Cornell Law School’s Path2Papers, and the Immigration Institute of the Bay Area. It was geared toward Deferred Action for Childhood Arrivals (DACA) recipients in the San Francisco Bay Area, but speakers also discussed how a Harris or Trump administration could impact immigration status and legal options for DACA recipients. The webinar explored a range of topics including family, humanitarian, and employment-based options, as well as mental health resources offered through Immigrants Rising.

Mr. Yale-Loehr was quoted by the Gothamist in President Biden Spares 20,000 New Yorkers From Deportation With Executive Action. Commenting on the new “Keeping Families Together” program, he predicted that “fewer people will get approved than originally thought.” Mr. Yale-Loehr said, “People may be hesitant to provide information to the government in case they are denied and then put into deportation proceedings.” Mr. Yale-Loehr pointed out that those who have criminal records, including felonies and certain misdemeanors, would be disqualified. The article notes that he co-authored a letter signed by more than 100 law professors arguing that the Biden action was constitutional.

Mr. Yale-Loehr was quoted by Newsday in New Immigration Court Cases Plummet on [Long Island], Across U.S. Since Biden Policy Change. He said the long-term legal viability of President Biden’s order restricting the eligibility for asylum of unauthorized migrants who cross the U.S. border remains undetermined. “Immigrants’ rights advocates are challenging the new restrictions as illegal, but it may be some time until a court decides their lawsuit,” he said.

Mr. Yale-Loehr was quoted by the Chicago Tribune (available by subscription) in Chicago Not Expecting Migrant Surge Ahead of DNC, City Official Says. Commenting on a drastic drop in the expected numbers of migrants to be bused from Texas to Chicago in time for the Democratic National Convention, which has been attributed to President Biden’s policy at the border of denying asylum to anyone crossing into the United States without authorization, Mr. Yale-Loehr said, “There just aren’t that many people to send.”

Mr. Yale-Loehr was quoted extensively by Newsweek in Growing Backlog in Immigration Courts Could Slow Trump’s Mass Deportations. Among other things, Mr. Yale-Loehr noted that the “average wait time right now for an asylum case in immigration court is about five years, so that causes a lot of problems. He noted that “[w]e have not funded the immigration court system adequately to be able to keep up with this increase.” Mr. Yale Loehr noted that “Trump said in the first administration that he wanted to deport more people and he didn’t really do that. You just cannot deport people without a hearing. Due process is embedded in the Constitution and it applies to everyone in the United States, not just U.S. citizens. So you can’t just round them up and send them across the border.” The article notes that Mr. Yale-Loehr co-wrote a report in 2023 that recommends sweeping changes. “You certainly could also have more judges at the border,” he suggested. “If you had people who came in and had their asylum claims judged at the border within the first couple of months and then quickly deported,” that “would not add to the backlog and people would have a decision more quickly.” He observed that people “have problems hanging on for that long, or they evaporate into the shadows. [So] even if they are ordered deported, nobody can find them.”

Mr. Yale-Loehr was quoted by the Chronicle of Philanthropy (registration required) in As Election Nears, Four Freedoms Fund Seeks $5 Million to Support Immigrants. Among other things, the article discusses Path2Papers, a nonprofit project at Cornell University Law School, which recently received $1.5 million from the Crankstart Foundation to offer free consultations to Deferred Action for Childhood Arrivals (DACA) recipients in the San Francisco, California, area who are seeking work visa options. The article notes that Path2Papers “has done more than 400 consultations, finding that more than half of DACA recipients it worked with may be eligible for a work visa.” “While that is a great start, it is a drop in the bucket compared to the over 500,000 DACA holders in the U.S.,” Mr. Yale-Loehr said. He also noted that courts consider immigration cases very complex to adjudicate.

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ABIL Immigration Insider • May 5, 2024

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In this issue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL-Immigration-Insider-May-2024

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

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

Details:

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

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

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

Details:

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

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

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

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

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

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

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

Details:

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6. DOS Issues Final Rule on Exchange Visitor Program Provisions

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

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

Details:

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9. DOS Announces New Exchange Visitor Program for Japan

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

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

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

Details:

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

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

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

Details:

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

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

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

Details:

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12. DOS Suspends Visa Services in Haiti

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

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

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

Details:

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

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

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

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

Details:

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14. Non-Minister Special Immigrant Religious Workers Category Extended

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

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

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

Details:

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

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

Details:

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

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

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

Details:

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17. New Audit Measures for EB-5 Regional Centers

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

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

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

Details:

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18. Employment Authorization Granted to Eligible Palestinians Under DED

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

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

Details:

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19. ABIL Global: Switzerland

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

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

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

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

Occupations With a Pronounced Shortage of Skilled Labor

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

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

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

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

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

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

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

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

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New Publications and Items of Interest

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

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

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

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

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

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

  • SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) offers a series of webinars and customized tutorials for prospective, new, or current user agencies. Pre-registration is not required.
  • OFLC CW-1 webinar materials: On March 26, 2024, the Office of Foreign Labor Certification (OFLC) conducted a webinar to provide an overview on common issues the National Processing Center has identified with CW-1 Applications for Temporary Employment Certification and offered filing tips that can minimize common application errors. The presentation materials are now located under the “Webinars” tab at the bottom of the CW-1 Program page at https://www.dol.gov/agencies/eta/foreign-labor/programs/cw-1.

Immigration agency X (formerly Twitter) accounts:

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

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

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ABIL Member / Firm News

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

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

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

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

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

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

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

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

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

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Government Agency Links

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

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

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

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ABIL Global Update • October 2023

/in /by

Headlines:

1. DIGITAL NOMADS: AN OVERVIEW – Where are we now? This article provides an update on digital nomads in several countries.

2. INDIA – In a developing and increasingly complex story, Canada’s Prime Minister has accused India’s government of involvement in the murder of a Sikh separatist leader in Canada. This has precipitated counter-moves by India.

3. ITALY – The Italian government has announced the number of foreign workers allowed in Italy for 2023-2025 and application periods for work permit applications. Also, non-European Union (EU) workers who have already worked abroad for Italian companies or companies participated in by Italian firms can obtain a work permit that will not be subject to yearly quotas.

4. UNITED KINGDOM – The government of the United Kingdom (UK) is implementing a full-scale digitalization project and seeks to enhance the efficiency of immigration procedures by harnessing advanced technology. Also, fines for employing someone unauthorized to work in the UK will increase next year.

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

ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – October 2023

Details:

1. DIGITAL NOMADS: AN OVERVIEW

ITALY

On March 28, 2022, Italy introduced in its law a visa for digital nomads and remote workers.

The law provides that the requirements and conditions for the issuance of these visas should have been established with a further decree that was to be issued within 30 days, i.e., by the end of April 2022, but until now no further actions have been taken and the program is on hold.

Digital nomads and remote workers are defined as “citizens of a third country who carry out highly qualified work activities through the use of technological tools that allow [them] to work remotely, autonomously, or for a company based outside Italy.” (See under Art. 6-quinquies (b) in Modificazioni apportate in sede di conversion al decreto-legge 27 gennaio 2022, n. 4.)

For these categories of workers, it is not necessary to apply for a work permit before applying for the visa. However, to be issued the visa, applicants must show proof of valid and comprehensive health insurance, covering all risks in Italy, and be committed to respecting all relevant tax and security obligations in Italy.

This permit seems applicable to both:

  • Nationals of a third country who are self-employed or employed for a non-resident company in the territory of the Italian State; and
  • Nationals of a third country who carry out their activities in Italy.

The new law has only established some general principles. Digital nomads:

  • Do not need to apply for a work permit in Italy before applying for the visa at the consulate; but
  • Must submit proof of comprehensive health insurance, covering all risks in Italy;
  • Most likely must prove they have performed the work for a significant amount of time, prove they meet a minimum income requirement, and submit (as requested for self-employment visas) their latest tax returns; and
  • Must comply with Italian tax and social security obligations.

Similar to the self-employment visa, almost total discretion on the issuance of the visas is left to Italian consulates. This will most likely create confusion, because each consulate may use different criteria to assess an application and grant or deny the visa.

MEXICO

Mexico currently does not have a specific “nomad visa” program. However, even before the COVID-19 pandemic, and currently, Mexico offers several types of visas that may be suitable for digital nomads or remote workers.

The temporary resident visa for non-lucrative activities is a perfect and suitable document for those foreigners who want to live in Mexico for up to four years continue working for their employer company located abroad. To obtain this visa, the applicant must provide proof of sufficient financial means to support themselves during their stay in Mexico.

A non-lucrative visa for Mexico is a type of visa that allows individuals to reside in Mexico for a period without engaging in any type of remunerative activity. This visa is intended for individuals who want to live in Mexico for an extended period for reasons such as retirement, remote work, or sabbatical, or to simply experience the culture and lifestyle of Mexico.

SPAIN

Aided by regulations promoting the start-up ecosystem, Spanish immigration authorities have been processing visas and residence permits related to international remote work since the Start-Up Act was implemented in late 2022.

A visa and residence permit for international remote workers regulated through the Start-Up Act allows holders to stay in Spain while carrying out work or professional activity remotely for companies located outside the national territory. Visas are processed through Spanish consulates and granted for a period of up to one year, while residence permits are processed in-country and can be granted for a period of up to three years.

In general, to qualify for this visa or residence permit, applicants must: (1) work for a company located outside Spain (with some exceptions for individuals who are self-employed); (2) work using exclusively computer, telematics and telecommunication media and systems; and (3) hold a university degree or have a minimum of three years of relevant experience in their field.

Such a permit-holder exercising an employment activity may only work for companies located outside the national territory. A permit-holder who is self-employed may undertake professional activity for a company located in Spain provided that the percentage of such work does not exceed 20% of the total professional activity.

Dependents of holders of a visa or residence permit for international remote work may obtain residence permits as dependents and be eligible to work in Spain.

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2. INDIA

Justin Trudeau, Canada’s Prime Minister, said the Canadian government had evidence that India’s government was involved in the murder of Hardeep Singh Nijjar, a Sikh separatist leader in Canada.

As a result, India has suspended visa services for Canadians until further notice, citing security reasons, and asked Canada to reduce its diplomatic presence in India. This involves about 40 diplomatic staff. The visa services suspension affects all Canadian nationals without valid visas, including students, tourists, and business visitors. The suspension also applies to Canadians in third countries who wish to apply for an Indian visa, and includes the Indian E-visa. The suspension does not apply to Canadian citizens who hold an Overseas Citizen of India card.

Canada, for its part, has not suspended visas for Indian nationals but said that it would “adjust” its diplomatic staffing in India after security-related threats.

On September 20, 2023, the government of India’s Ministry of External Affairs issued an advisory for Indian nationals and students in Canada. The advisory counsels “utmost caution” for all Indian nationals in Canada or contemplating travel there. It also notes that Indian nationals and students from India in Canada must “register with the High Commission of India in Ottawa or Consulates General of India in Toronto and Vancouver through their respective websites, or the MADAD portal madad.gov.in. Registration would enable the High Commission and the Consulates General to better connect with Indian citizens in Canada in the event of any emergency or untoward incident.”

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3. ITALY

The Italian government has announced the number of foreign workers allowed in Italy for 2023-2025 and application periods for work permit applications. Also, non-European Union (EU) workers who have already worked abroad for Italian companies or companies participated in by Italian firms can obtain a work permit that will not be subject to yearly quotas.

Foreign Workers

The Italian government has announced a cap of 450,000 on the number of workers from outside the European Economic Area (EEA) allowed in Italy for 2023–2025. The decree, dated September 27, 2023, was published in the Official Gazette on October 3, 2023. For the year 2023, 136,000 quotas are available.

Applications for subordinate permit applications for subordinate work reserved to citizens of countries that have cooperation agreements with Italy can be submitted starting at 9 a.m. December 2, 2023. Other subordinate permit applications can be submitted starting at 9 a.m. December 4, 2023, while seasonal work permit applications can be submitted starting at 9 a.m. December 12, 2023.

Quota Categories

The 136,000 quotas will be allocated among the following categories:

  • 82,550 for Seasonal Work in the sector of agriculture; hospitality and tourism industry reserved for certain nationalities
  • 53,450 (of which 52,770 are for subordinate work—work as an employee—and 680 are for self-employment)
  • In the sectors of freight transportation on behalf of third parties, building, hospitality and tourism, mechanics, telecommunications, food, shipbuilding, transportation of passengers by bus, fishing, hairdressing, electricians, and plumbers:
  • 2,000 for citizens of countries that promote media campaigns regarding the risks of involvement in irregular migration
  • 25,000 for the following nationalities: Albania, Algeria, Bangladesh, Bosnia-Herzegovina, South Korea, Ivory Coast, Egypt, El Salvador, Ethiopia, Philippines Gambia, Georgia, Ghana, Jordan, Japan, Guatemala, India, Kyrgyzstan, Kosovo, Mali, Morocco, Mauritius, Moldova, Montenegro, Niger, Nigeria, Pakistan, Peru, Republic of North Macedonia, Senegal, Serbia, Sri Lanka, Sudan, Tunisia, and Ukraine
  • 12,000 for citizens of countries with which Italy will have cooperation agreements
  • 100 quotas (employee/self-employee) for employed or self-employed work, reserved for foreign nationals who have Italian ancestry and reside in Venezuela
  • 200 quotas (employee/self-employee) for employed or self-employed work, reserved for stateless persons and refugees
  • 9,500 quotas for workers in family care and support services
  • 500 quotas for self-employment for:
  • Entrepreneurs intending to implement an investment plan of interest for the Italian economy, involving an investment of at least €500,000 and creating at least three new jobs in Italy
  • Freelancers/independent contractors who intend to practice regulated or controlled professions (i.e., individuals belonging to a professional association or enrolled in an official/public register) or professions that are not non-regulated but are considered representative at the national level and are included in the lists edited by the Public Administration
  • Holders of corporate offices or administrative/controlling positions (any of the following: Chairman, CEO, Member of Board of Directors, Auditor) in an Italian company, active for at least three years (requirements set in Visa Decree May 11, 2011 n.850)
  • Foreign citizens who intend to set up innovative start-up companies under certain conditions and who will have a self-employment relationship with the start-up
  • Internationally well-known and highest-repute artists, artists of recognized high professional qualification or artists who are hired by well-known Italian theaters, important public institutions, public television, or well-known national private television (requirements set in Visa Decree May 11, 2011 n.850)
  • Permit conversion for non-European Union (EU) nationals already in Italy/EU
  • 4,000 quotas for conversions of seasonal work permits to standard, non-seasonal work permits (as an employee).

Work Permits

Article 27 of Italian immigration law, which lists the exceptions to the quota system, has been modified to include this new category of workers. According to this amendment, workers who meet the specified requirements can be employed in Italy by the same companies or entities for which they have worked abroad without having to compete for a “quota” set by the decreto flussi (flow decree), which sets the numerical limits (quotas) for foreign workers entering the country. This measure aims to simplify the entry and employment of foreign workers who already have a work connection with Italian companies.

A new subparagraph (i-bis) is to be introduced to paragraph 1 of Article 27. According to this, workers who have been employed for at least 12 months within the 48 months preceding the application, by companies headquartered in Italy or companies participated in by Italian firms, can be employed at the locations of the same companies or entities in Italy.

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4. UNITED KINGDOM

The government of the United Kingdom (UK) is implementing a full-scale digitalization project and seeks to enhance the efficiency of immigration procedures by harnessing advanced technology. Also, fines for employing someone unauthorized to work in the UK will increase next year.

Digitalization and Immigration-Related Technology

Technological developments in the UK are intended to expedite the submission and processing of visa applications and other immigration-related paperwork and modernize border operations by automating digital border processes. This initiative aims to enable Border Force and UK Visas and Immigration personnel to streamline current workflows, concentrating their resources on application categories that demand more time and effort due to their intricate legal aspects. The digital transformation of the UK immigration system is intended to bring the border management system and broader government in line with the demands of the 21st century.

Transition to Digital Immigration Status

By late 2024, the UK government intends to fully transition to a digital system for managing immigration status. This will enable individuals to apply for and verify their immigration status and cross borders without the need for physical travel vignettes or Biometric Residence Permits (BRPs). Some migrants have already begun receiving digital status as the default option. All BRPs are set to expire by December 31, 2024, in anticipation of these forthcoming changes.

Electronic Travel Authorisation Scheme

In March 2023, the government introduced the Electronic Travel Authorisation (ETA) scheme. Under this program, travelers from countries currently exempt from the requirement to apply for prior UK visa clearance before visiting the UK must obtain an ETA before their journey. The primary goals of the ETA scheme are to enhance border security in the UK and streamline the travel process. The ETA scheme will be slowly introduced, first with selected Middle Eastern nationals. Beginning November 15, 2023, Qatar nationals traveling to the UK will require an ETA. Nationals of the following countries traveling to the UK will need an ETA beginning February 22, 2024:

  • Bahrain
  • Jordan
  • Kuwait
  • Oman
  • Saudi Arabia
  • United Arab Emirates

More countries on the non-visa national list (those countries whose nationals do not require prior UK visa clearance before visiting the UK) will be added to the ETA scheme, with the aim for it to be fully in place by the end of 2024 for all relevant non-visa nationals traveling to the UK. As details of the ETA are still to be finalized for non-Gulf countries, multinational corporations with frequent business travel should stay vigilant for updates and make necessary preparations for its implementation.

Sponsorship System Reforms

In response to calls for a simplified sponsorship system following Brexit, the Home Office unveiled a sponsorship roadmap in August 2021. This roadmap outlines proposed changes to the current process of hiring foreign nationals to make it more straightforward and efficient. The plan includes:

  • Various IT improvements;
  • Enhancements in customer service;
  • Modifications to compliance procedures; and
  • Strategies for engaging stakeholders.

These reforms aim to create a more user-friendly system that reduces the time required to sponsor a migrant worker. The IT transformation will be implemented in three phases, with the Home Office anticipating full operational capability by Q1 2024. All sponsors are expected to transition to the new system by this deadline.

Online Verification of Right to Work and Rent

As of April 2022, employers and landlords are now legally obligated to conduct online checks to verify an individual’s right to work and rent status for most migrants. With limited exceptions, manual right-to-work verification for these individuals is no longer permitted. The Home Office has also introduced a digital service allowing British and Irish nationals to confirm their right to work and rent status online. Employers and landlords can opt to use an Identity Service Provider (IDSP) for these checks. However, manual checks of physical identity documents are still permitted for British and Irish nationals.

Employer Fines Increasing Next Year

The UK government announced that employer fines (also known as civil penalties) for employing someone without permission to work in the UK will increase next year. Below are some details:

  • Tripling of fines. The fine for a first breach by a UK employer will increase from £15,000 to £45,000 per worker. For repeat breaches, the fine will increase from £20,000 to £60,000 per worker.
  • Increased need for compliance. Full compliance with right-to-work checks is already a necessity for all staff working in the UK. These increased fees add an extra incentive for employers to ensure they have the correct prevention measures in place, including in relation to right-to-work checks and, for those sponsoring workers from overseas, sponsor license compliance.
  • More Home Office vigilance possible. The government announcement noted that later this year, “the Home Office will consult on options to strengthen action against licensed businesses who are employing illegal workers.” It is unclear what that will entail. It might, for example, mean that more compliance visits are made or increased information-sharing occurs between government departments. Stay tuned.

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5. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has published a new blog post: Canada’s Tech Talent Strategy: A Creative Option for U.S. Employers?

Cyrus Mehta authored several new blog posts: Shaping Immigration Policy Through EADs; Although the October 2023 Visa Bulletin is Disappointing, the Administration Still Has the Option to Advance the Dates for Filing in the Next Visa Bulletin; and To What Extent Can Immigration Practitioners Ethically Rely on ChatGPT to Aid Their Practice?

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: Shaping Immigration Policy Through EADs, NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them, and USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ After Using Filing Date to Protect Age of the Child.

Mr. Mehta and Jessica Paszko co-authored several new blog posts: ICE Imposes Guardrails On Use of Red Notices Against Noncitizens in Removal Proceedings and Changes in Work From Home Policies After Labor Certification Has Been Filed.

Mr. Mehta was quoted in the Times of India on India’s visa suspension for Canadians: India’s Visa Suspension Will Have Limited Impact on Biz.

Angelo Paparelli was quoted by Law 360 in “Immigration Attys Soothe Client Fears Amid Shutdown Threat” (available with registration). Under a shutdown, Mr. Paparelli noted, the Department of Labor would stop processing labor certifications for temporary and seasonal workers through the H-2A and H-2B visa programs. Those certification decisions tend to be accelerated because of the temporary nature of the programs, so a shutdown would put at risk the ability of those programs to function as intended, he said. That would hurt agricultural employers in particular, who rely heavily on the H-2A program for farmworkers, as well as other employers who rely on H-2B workers for seasonal work. “The whole process is sort of like … a train with different cars on it. And if one of the early cars starts to buckle, it derails the rest of the system,” Mr. Paparelli said. “I am not Blanche DuBois and I don’t like to rely on the kindness of strangers,” he said, referring to the fictional character in “A Streetcar Named Desire” and her final line in the 1947 play. “And so I basically would recommend people filing as early as they can.”

WR Immigration has published a new installment in its “Chatting with Charlie” series. WR Immigration Director of Visa Consulting Charlie Oppenheim, Partners Dan Maranci and Kimberley Best Robidoux, and Senior Attorney Laura Bloniarz discuss the latest insights on the October Visa Bulletin and fiscal year 2024 visa availability, and provide information regarding the new I-9 process.

WR Immigration has published a new blog post: USCIS Policy Updates on CSPA Age Calculation & ‘Sought to Acquire’ Requirement under CSPA on Adjustment of Status Cases—Confusion and Heartbreak for Consular Processing Applicants.

WR Immigration Associate Kristen Tully has been selected by Super Lawyers as a 2023 Massachusetts Rising Star.

Stephen Yale-Loehr co-authored an op-ed in The Hill, Blue States’ Plans for Migrant Workers Can Include or Exclude Biden.

Mr. Yale-Loehr was quoted in the New York Times in Help! I Was Denied Boarding on a Cruise, and I Wasn’t the Only One. Mr. Yale-Loehr said, “Even a green card holder is not guaranteed re-entry into the United States. If there’s nothing in the person’s immigration history to indicate that they are inadmissible for other reasons, then they should be allowed on the cruise ship.”

Mr. Yale-Loehr was interviewed in a podcast about the New York migrant surge. Mr. Yale-Loehr discussed how local and federal leaders can work to manage the New York migrant surge and support individuals seeking refuge in the United States. He also discussed changes in migrant demographics, immigration statuses, complications of the U.S. immigration system, legal protections for migrants, labor shortages and work training programs, and funding for resources to address the migrant surge.

Mr. Yale-Loehr was quoted by Newsday in Venezuelan Migrants, Once Granted Federal TPS Protection, Could Seek Shelter on Long Island, in Other Counties. He noted that those with TPS can receive some public benefits but not others.

Mr. Yale-Loehr was quoted in the Christian Science Monitor in New York’s Immigrant Spirit Tested by Influx of Asylum-Seekers.

Mr. Yale-Loehr was quoted in the Gothamist about work permits for Venezuelans in the United States: Next Step for Venezuelan Migrants in NYC: Navigating the Bureaucracy.

Mr. Yale-Loehr was quoted in the New York Times in New York Considers State Work Permits for Migrants as Influx Worsens.

Mr. Yale-Loehr was quoted in the New York Daily News in =NY looking at ‘unprecedented’ plan to give migrants state work permits, Hochul says.

Mr. Yale-Loehr was quoted in a Financial Times podcast about a prominent Russian banker who received asylum in the United States: The Russian Banker, Part 3: Asylum.

Mr. Yale-Loehr was quoted in a Politifact article about critics of U.S. President Biden’s immigration policies: Who is responsible for helping migrants in Chicago and New York City? Leaders say Biden can do more?

Mr. Yale-Loehr was quoted in a Raw Story article about a federal judge declaring DACA illegal: ‘Dreamers’ deferred: Democrats are blowing the immigration debate and hurting kids by hiding.

Mr. Yale-Loehr was quoted by New York Daily news in NYC Mayor Adams Again Urges Feds to ‘Stand Up,’ Accelerate Work Permits for Migrants Amid Crisis. Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services was gutted under former President Donald Trump and has worked to catch up under President Biden. He noted that the 150-day delay between asylum applications and work permit requests cannot be changed without an act of Congress, a step considered highly unlikely in the Republican-controlled House of Representatives. The federal government reported that it is processing 80 percent of asylum-seekers’ work authorization submissions within two months, he said.

Mr. Yale-Loehr was quoted by the Albany Times-Union in Asylum Cases Lag As Migrants Lack Required Casework. He noted a lack of clarity around the intersection of homelessness and migrants in the law. But he said one thing was clear: “There are a lot of issues that need to be resolved and so far there does not seem to be any coordination between state and local authorities to figure this out.”

Mr. Yale-Loehr was quoted by Politico in ‘There Is No More Room in Mexico’: Mayor Adams Takes Mexico. Mr. Yale-Loehr said, “A single trip by a politician will not dampen the flow. Mayor Adams would do better to work cooperating with the Biden administration on this complex issue, rather than striking out on his own foreign policy pursuits.”

Mr. Yale-Loehr co-authored a white paper, Immigration Reform: A Path Forward, published by Cornell University Law School’s Immigration Law and Policy Program. The white paper sets forth three sets of proposals: (1) strengthening border security; (2) implementing targeted measures to better align the U.S. immigration system with economic imperatives; and (3) offering deportation protection to DREAMers. “Individually and collectively, the proposals offer a path forward that addresses our most urgent needs, structured in ways to maximize the bipartisan support required for enactment,” the white paper says.

Mr. Yale-Loehr was quoted by Inc. in How Business Leaders Can Prepare to Hire Asylum Seekers—and Why They’re Pushing for More. The article notes that in August, more than 120 business executives from JPMorgan Chase, Macy’s, Paramount Global, and others signed an open letter to President Biden and Congress urging more federal support and expedited work permits for asylum seekers. Mr. Yale-Loehr said that especially hard-hit industries, including construction, farming, and home health care, could benefit from the added workers. He noted that there are steps migrants need to take before they start legally working, and obstacles to navigate. Asylum seekers may not speak English or may want a lawyer’s assistance to file the work permit application, for example.

Mr. Yale-Loehr was quoted by El Pais in A Three-Month Wait: New U.S. Immigration Plan Marred by Secrecy and Uncertainty. The article notes that a new U.S. immigration program known as Movibilidad Segura, or Safe Mobility, pursues “the expansion of legal routes to the United States or other countries for refugees and migrants in South and Central America,” according to its official website. “The United States launched the program in June with the aim of “reducing irregular migration,” and established migration offices in Colombia, Costa Rica and Guatemala. However, three months after its launch, less than 1% of the nearly 29,000 applicants in Colombia have passed through the U.S. Refugee Admissions Program (USRAP), according to official data. The lack of information and the secrecy surrounding the project have experts consulted by El Pais perplexed,” the article notes. Migrants interviewed by El Pais explained that they had to sign a confidentiality agreement stating that they “cannot comment on their process.” Mr. Yale-Loehr termed this procedure “unprecedented” and “unusual.” He explained that signing non-disclosure clauses does not form part of the refugee process in the United States and is not required for an interview at a U.S. embassy or consulate. “It must be a new procedure, which I haven’t heard of before,” he said. When the U.S. government launched Safe Mobility in Colombia, El Pais noted, it announced that it would be conducting “a six-month pilot period.” Midway through, it said it plans to extend it but declined to give a specific timeline. With so much uncertainty, Mr. Yale-Loehr said he understands the frustration surrounding the scheme: “It’s had a very slow start.” He said he believes that the future of Safe Mobility remains unknown: “It has not failed yet, but it has not been a success either.”

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ABIL Immigration Insider • May 7, 2023

/in /by

In this issue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – May 2023

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

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

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

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

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

Details:

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

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

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

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

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

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

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2. ICE Extends Form I-9 Requirement Flexibility

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

Details:

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

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

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

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

Details:

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

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

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

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

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

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

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

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

Details:

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

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

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

Details:

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

CDC statement (May 5, 2023)

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

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

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

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

Details:

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

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

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

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

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

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

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

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

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

Details:

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

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

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

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

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

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

Details:

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

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

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

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

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

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

Details:

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

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11. DHS Changes Parole Process for Haitians, Cubans

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

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

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

Details:

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

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12. DOS Suspends Visa Services in Sudan

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

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

Details:

  • DOS notice (Apr. 24, 2023)

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13. CBP Requests Comments on Trusted Traveler Information Collection

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

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

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

Comments must be submitted by May 30, 2023.

Details:

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

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

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

Details:

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

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

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

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

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

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

Details:

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

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24. ABIL Global: European Union, Belgium

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

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

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

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

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

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

New Rules for Trainees and Volunteers

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

Trainees

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

There are some important changes compared to the previous regulations:

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

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

Volunteers

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

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New Publications and Items of Interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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Government Agency Links

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

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

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

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ABIL Global Update • October 2022

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In this issue:

1. EMPLOYMENT OPTIONS FOR STUDENTS AFTER GRADUATION: AN OVERVIEW – This article provides an overview of employment options for students after graduation in several countries.

2. CANADA – Canada is transitioning to 100 percent online applications for most permanent residence programs by the end of October 2022. Also, according to unofficial reports, Canada may drop some COVID-19 vaccine-related restrictions for travelers by the end of October 2022.

3. PERU – This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.

4. RUSSIA – Citizens of Ukraine can remain indefinitely if they meet certain requirements.

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

6. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – October 2022

1. EMPLOYMENT OPTIONS FOR STUDENTS AFTER GRADUATION: AN OVERVIEW

This article provides an overview of employment options for students after graduation in several countries.

Canada

The Post-Graduation Work Permit Program (PGWPP) allows students who have graduated from eligible Canadian designated learning institutions (DLIs) to obtain an open Canadian work permit to gain Canadian work experience.

Skilled Canadian work experience in National Occupational Classification (NOC) skill type 0 or skill level A or B that is gained through the PGWPP helps graduates possibly qualify for Canadian permanent residence in Canada through the Canadian Experience Class (CEC) within Canada’s Express Entry program.

A post-graduation work permit may be issued based on the length of the study program for a minimum of eight months up to a maximum of three years. Applicants must apply for a post-graduation work permit (PGWP) within 180 days of obtaining written confirmation, such as an official letter or transcript, from the DLI where they studied indicating that they have met the requirements for completing their program of study. An applicant can receive only one post-graduation work permit in a lifetime (non-renewable).

Students are not eligible for a post-graduation work permit for completing:

  • An English as a second language or French as a second language course or program of study
  • General interest or self-improvement courses
  • A course or program of study at a private career college

More information on the PGWPP is at

Italy

Students who are holding a valid study residence permit (permesso di soggiorno per studio) can work in Italy up to 20 hours per week, up to 1040 hours per year. However, those who want to work in Italy full-time or remain in Italy after the expiration of their permit must convert the study permit into a permit for employment or self-employment.

Who can apply for permit conversion?

  • Holders of a valid study residence permit who get a full-time job offer can apply for conversion into a residence permit for subordinate work (permesso di soggiorno lavoro subordinato).
  • Holders of a valid study residence permit meeting the requirements for self-employment in Italy can apply for conversion into a residence permit for self-employment (permesso di soggiorno lavoro autonomo).

When should the student apply?

A student must apply for the conversion while the residence permit for study is still valid, and:

  • The student should apply after the publication of the annual Decreto flussi, which determines the numbers of work permits reserved for a certain category of applicants (“quotas” are normally released every year between December and February. Quotas are allocated on a first-come, first-served basis); or
  • Those who hold an accredited Italian degree or a postgraduate degree can apply at any time regardless of the quota limitation.

What if the student needs more time for job-searching in Italy?

Those who hold an accredited undergraduate/graduate degree, PhD, university master’s degree, first/second-level academic degree, or Higher Technical Institute diploma can register as unemployed and apply for a permit for the purpose of job searching or entrepreneurship (Permesso di soggiorno per ricerca lavoro o imprenditorialita’ degli studenti). This kind of permit allows students to legally live in Italy after their graduation while searching for a job or to start a business for up to one year.

For further information, see https://www.mazzeschi.it/convert-residence-permit-from-study-to-work-purpose-faqs/

Turkey

Turkey is not an inbound country for students from a large number of countries, and there are no special work authorization categories for graduating students. They must independently qualify for a work permit in a similar manner to any other foreigner who graduated from an educational institution abroad.

Article 43 of the Regulations on the Law on International Workforce further restricts under what circumstances a foreign student in a Turkish educational institution may apply for a work permit.

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2. CANADA

Canada is transitioning to 100 percent online applications for most permanent residence programs by the end of October 2022. Also, according to unofficial reports, Canada may drop some COVID-19 vaccine-related restrictions for travelers by the end of October 2022.

Online Applications

On September 1, 2022, the Government of Canada announced its decision to strive toward a digitalized immigration system, as committed to in January 2022, by transitioning to 100 percent mandatory online applications for most permanent residence programs by the end of October 2022.

The Honourable Sean Fraser, Minister of Immigration, Refugees and Citizenship, said this shift is intended to expedite processing times, reduce backlogs, and improve client experiences. The Minister said, “By adding resources where they are needed and leveraging technology to make processing faster and applying easier for our clients, we can give newcomers and new citizens the welcoming experience they deserve.”

In addition, starting this fall, Immigration, Refugees and Citizenship Canada (IRCC) plans to further improve the online processing times tool to provide applicants with more accurate estimates of timeframes for application processing.

Below are highlights of these developments.

What has changed as of September 23, 2022?

Permanent residence applications. Since March 31, 2021, some applicants have been able to apply for permanent residence online via the new individual PR Portal. In September 2021, authorized representatives, such as lawyers, were able to submit PR applications online on behalf of clients via the new PR Representative Portal. However, as of September 23, 2022, most permanent residence program applicants must apply for permanent immigration programs through the PR Representative Portal/Permanent Residence Portal. The portal then sends an immediate confirmation to applicants when their applications have been successfully submitted. IRCC has confirmed that any permanent residence application that is not submitted online after the transition dates for particular categories will be returned to applicants.

Affected permanent residence programs. Those in the following permanent residence categories must submit their applications online via the portal:

  • Provincial nominee program (non-Express Entry)
  • Québec-selected skilled workers
  • Sponsoring a spouse or partner, dependent child, or eligible relative
  • Sponsoring an orphaned sibling, niece or nephew, or grandchild
  • Adopting a child through the immigration process
  • Rural and Northern Immigration Pilot

Throughout October, beginning on October 7, 2022, the digitization of permanent residence applications will expand to other categories:

  • Québec-selected investors
  • Québec-selected entrepreneurs
  • Self-employed people (Québec)
  • Agri-food pilot
  • Start-up visa
  • Temporary resident permit holders applying for permanent residence
  • Home Support Worker Pilot
  • Home Child Care Provider Pilot
  • Humanitarian and compassionate grounds
  • Self-employed people (federal)
  • Atlantic Immigration Program

Who is exempt?

Applicants already in Canada. To reduce wait times for applications and increase processing capacity, permanent and temporary residence applicants who are already in Canada and meet certain criteria regarding the immigration medical exam requirement will be exempt from the requirement to submit their application online, as well as those who meet specific criteria from the immigration medical examination requirement.

Applicants who require accommodations. The exemption also extends to applicants who require special accommodations, including for individuals with disabilities. Such applicants can contact IRCC to request an alternative format to submit their permanent residence applications.

Conclusion

By the end of October 2022, IRCC’s transition to 100 percent digital applications for most permanent residence programs will be complete. This announcement represents the Government of Canada’s commitment to a modernized and digitized immigration system, as well as its objective of improving client service.

Given that the online PR portals are still evolving, and technical problems with the portals continue to persist on a daily basis, there will be challenges ahead. However, ultimately digitization will hopefully contribute to improved processing times and facilitate the process for applicants, reducing the need to produce original documents and signatures.

Vaccine Restrictions at the Canada-U.S. Border

According to unofficial reports, by the end of September, Canada may drop its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. That border crossing handles more than 40,000 travelers each day, including commuters, truck drivers, and tourists. Canada may also end COVID-19 vaccine requirements for airport arrivals and no longer require filling out the ArriveCan app. Currently, all travelers in Canada must be fully vaccinated to travel by most air, rail, or passenger vessels. In addition, some provinces or individual businesses may continue to limit discretionary activities, such as visits to restaurants, bars, gyms, and retail shops, to individuals who can provide proof of COVID-19 vaccination.

It is unclear whether the United States will also drop similar land-border vaccine requirements. At present, all nonimmigrant, non-U.S. citizen air travelers to the United States must be fully vaccinated and provide proof of vaccination status before boarding an airplane to the United States. Fully vaccinated foreign nationals may enter the United States at land ports of entry (POEs) and ferry terminals. Fully vaccinated travelers do not need to provide a pre-entry COVID-19 test result to enter the United States by air, land, or sea. Fully vaccinated foreign travelers can travel to the United States across the Northern and Southwest borders with Canada (and Mexico). U.S. citizens and lawful permanent residents do not need to provide proof of vaccination status at land POEs and ferry terminals.

A group of Canadian legislators and border-area mayors from both countries published a letter on September 20, 2022, to Prime Minister Justin Trudeau and President Joe Biden asking them to remove the border restrictions.

Details:

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3. PERU

This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.

Concerts and artistic events are now being held again globally, after COVID-19 pandemic-related restrictions. It is once again time to consider the Artist visa for foreigners coming to perform artistic activities in Peruvian territory.

Strictly speaking, according to the law, the appropriate migratory status to authorize foreigners to perform artistic activities in Peru is called “Temporary-Artistic.” This status allows the foreigner to carry out paid or lucrative activities linked to artistic, cultural, or other similar pursuits, by virtue of a contract executed in accordance with current Peruvian legislation. This contract must be signed before the artist enters the country. It extends to the artist’s entourage.

The process must begin in MIGRACIONES’ offices in Lima before the artist and entourage enter. Once the file is approved, within 30 business days according to MIGRACIONES’ regulations (it takes longer nowadays in reality), the applicant and team go to the Peruvian consulate abroad chosen by them, where the visas are stamped in their passports.

Qualifications for this migratory status include:

  • Their entry must not represent a risk to national security, internal order, or public order.
  • Applicants must remain abroad until they obtain their visas granted by MIGRACIONES at the Peruvian consulate chosen abroad and indicated in their file.
  • There must be a signed definitive contract executed according to current regulations to support the visa of the artist and entourage.
  • Competent authorities must verify that the foreign persons will only carry out what is established in their contract.

This visa is valid for a single entry with a maximum of 90 calendar days of stay, and is not renewable.

The administrative procedure for the Temporary-Artistic Visa Application with Consular Phase is the one through which the artistic migratory status/visa will be granted. The visa, approved by MIGRACIONES, will be authorized at the corresponding Peruvian consulate at the discretion of the Peruvian state.

Required documents and requisites to be complied with to obtain this kind of visa are indicated in the MIGRACIONES’ T.U.P.A. See https://www.gob.pe/institucion/migraciones/informes-publicaciones/2770424-texto-unico-de-procedimientos-administrativos-tupa

For the approval of the visa procedure, MIGRACIONES can verify compliance with the conditions established in the related regulations applicable to migratory status. Application requests must be made for each artist/person, not as a group. Any document in a foreign language (not Spanish) must be officially translated in Peru and be apostilled or contain the corresponding legalization chain, if applicable.

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4. RUSSIA

Citizens of Ukraine can remain indefinitely if they meet certain requirements.  

By Presidential Order No. 585 of August 27, 2022, valid until further notice, citizens of Ukraine who temporarily reside in the territory of the Russian Federation can remain without limit, provided they complete fingerprinting, photographing, and medical examination within legally set deadlines.

Ukrainian citizens can perform work activities in the Russian Federation without work permits regardless of the stated purpose on migration cards. Employers must submit notifications about signing of labor agreements within three business days to the territorial division of the Ministry of Internal Affairs in the region where the foreign citizens will be employed.

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5. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

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

The latest published media releases include:

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

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6. ABIL Member / Firm News

Klasko Immigration Law Partners announced:

  • Ronald Klasko, William A. Stock (https://www.abil.com/abil-lawyers/william-stock/), and Elise A. Fialkowski are included in the 29th edition of The Best Lawyers in America in the area of immigration law.
  • Natalia Gouz, Michele Madera, Maria Mihaylova, and Karuna Simbeck are recognized in the 2023 Edition of Best Lawyers: Ones to Watch for their outstanding professional excellence in immigration law.

Klasko Immigration Law Partners released a new podcast in the “Statutes of Liberty” series. In “Episode 30: EB-5 Litigation Victory,” Mr. Klasko and Dan Lundy talk with Anu Nair about a major litigation victory on which they were co-counsel. Klasko ILP said the litigation “is significant because USCIS had put restrictions on the EB-5 regional center program that went beyond what Congress intended when it reinstated the program in March 2022, which would have killed the program for years.” Ms. Nair asks Mr. Klasko and Dan Lundy to explain the importance and the details of the settlement and what it means for regional centers and investors moving forward. https://www.klaskolaw.com/news-events/statutes-liberty-immigration-podcast/

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) authored “DACA Immigrants Could Hep Solve Georgia’s Workforce Shortage,” which was published by Global Atlanta as part of its annual advertising partnership with Kuck Baxter Immigration. https://www.globalatlanta.com/daca-immigrants-could-help-solve-georgias-workforce-shortage/

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) led and spoke on an American Immigration Lawyers Association panel webinar, “2022 H-1B RFE Trends and Strategies for Winning,” on August 4, 2022. Mr. Loughran and his co-panelists described how despite rates of H-1B Requests for Evidence (RFEs) decreasing during the Biden administration, immigration practitioners continue to receive RFEs from USCIS on H-1B amendments, extensions, and change of employer petitions. The panel of experts discussed the RFEs they are seeing and imparted RFE-response strategies, tips, and tricks that have been successful. https://agora.aila.org/store/products/view/2022-h1b-rfe-trends-and-strategies-for-winning

Chairman Charles Foster and Partners Avalyn Langemeier, Corina Farias, Delisa Bressler, Dorothee Mitchell, Helene Dang, John Meyer, José Pérez, Nestor Rosin, and Mr. Loughran, of Foster LLP, have been recognized in the Lawdragon 500 Leading Corporate Employment Lawyers of America guide.

Foster LLP announced that Elizabeth LaRocca has joined Foster as a Partner in Foster’s expanding Dallas office. Dana Delott also has joined the Dallas office as a Senior Attorney. Both concentrate their practices in business immigration law. https://www.fosterglobal.com/blog/foster-llp-welcomes-elizabeth-larocca-and-dana-delott/

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) and Kaitlyn Box co-authored a new blog posting: “Asylum Seekers Are Legally in the U.S. Notwithstanding the Political Stunts of Governors Abbott and DeSantis.”

Mr. Mehta and Jessica Paszko co-authored a new blog posting: “Solutions for the Family Member Who Did Not Get the Employment Based Green Card with the Principal Family Member on September 30, 2022.”

Mr. Mehta has authored several new blog postings: “Will USCIS Waste Precious Employment Based Green Cards as it Announces Push to Use as Many as Possible by September 30?,” ; and “The Legal Basis for DACA As Expressed in the Final Rule,” http://blog.cyrusmehta.com/2022/08/the-legal-basis-for-daca-as-expressed-in-the-final-rule.html

Bernard Wolfsdorf (https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) was quoted by Bloomberg in “Controversial U.S. Visa Draws Rich From China to India After Reset.” Mr. Wolfsdorf said his firm, Wolfsdorf Rosenthal LLP, has been working overtime and hiring new staff to adjust to demand from countries like India, which has eclipsed the number of petitions filed from China. Drawing such investors could help prevent a brain drain because many wealthy emigrants’ children study at top U.S. schools, he said. https://bloom.bg/3Sxd0M8

Wolfsdorf Rosenthal LLP has published a new blog posting: “Demystifying the Complicated October 2022 Visa Bulletin—What Does It Mean for EB-5 Investors?” https://wolfsdorf.com/demystifying-the-complicated-october-2022-visa-bulletin-what-does-it-mean-for-eb-5-investors/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by Univision in “Will DACA Survive? Keys to the Ruling That Keeps the ‘Dreamers’ in Legal Limbo.” Mr. Yale-Loehr explained that the U.S. Court of Appeals for the Fifth Circuit “ruled that the challenge to the [Deferred Action for Childhood Arrivals (DACA)] program must come back for further review by a lower court” (the Southern District Court of Texas). He noted that the Fifth Circuit held “that the DACA program is illegal (upheld the 2021 Texas ruling), but remanded the case to the federal trial court (Texas) to determine if a new DACA rule issued this year by the Biden administration made any difference to the legality of the program.” He said the decision “prevents immigration officials from deporting DACA recipients until a final decision in the case,” and noted that the decision “protects existing DACA recipients” (about 700,000), who can “continue to renew their status. But the uncertainty about the fate of the program remains. Congress should enact a legislative solution.” https://www.univision.com/noticias/inmigracion/sobrevivira-daca-claves-tras-fallo-que-mantiene-vivo-parte-programa (in Spanish, with English translation available)

Mr. Yale-Loehr was featured by the “Rational Middle” podcast series in “Stephen Yale-Loehr and the Stories of Immigrants.” He discussed his work in immigration law and research on refugees in the United States. https://rationalmiddle.com/podcast/episode-143-stephen-yale-loehr-and-the-stories-of-immigrants/

Mr. Yale-Loehr, faculty director of the immigration law and policy research program at Cornell Law School, announced that the Law School has hired two postdoctoral research associates, Janine Prantl and Jacob Hamburger, and two distinguished visiting scholars, Charles Kamasaki and Randel Johnson, to expand on its research capabilities in this area. In 2021, Cornell Law School received a grant of $1.6 million from the Charles Koch Foundation for a two-year project to study ways to improve immigration law and policy. Mr. Yale-Loehr said, “Cornell Law School already had a strong immigration scholar base. Adding these four new people will make us even more preeminent in this important area.” https://www.lawschool.cornell.edu/news/cornell-law-school-welcomes-new-immigration-postdocs-and-scholars/

Mr. Yale-Loehr was quoted by the Gothamist in “For Asylum Seekers, Manhattan is Only Part of a Harrowing Journey.” Regarding asylum seekers who have come from Venezuela to New York City, Mr. Yale-Loehr said, “It is too soon to tell what percentage of Venezuelans will qualify for asylum. Because of backlogs in the asylum process, it could be years before we will know.” https://gothamist.com/news/for-asylum-seekers-manhattan-is-only-part-of-a-harrowing-journey

Mr. Yale-Loehr was quoted by the Daily Caller in “Will DeSantis Be Convicted for Kidnapping Over Martha’s Vineyard Flights? Experts Say It’s Unlikely.” Mr. Yale-Loehr said he thought claiming Republican governors were guilty of human trafficking for sending migrants out of state was “exaggeration,” adding that “illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law. The bottom line: It is a stretch to claim that Republican governors are violating human trafficking laws or laws that bar illegal transportation of migrants.” https://dailycaller.com/2022/09/20/desantis-human-trafficking-migrants/

Mr. Yale-Loehr was interviewed by NBC LatinX about migrants being transported from the southern United States to Martha’s Vineyard, Massachusetts. The six-minute video is at https://www.lx.com/social-justice/thousands-of-migrants-are-being-transported-north-to-democrat-led-cities/58045/

Mr. Yale-Loehr was quoted by the New York Daily News in “NYC Asks Feds to Fast-Track Work Papers for Migrants and Busing Crisis.” Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services was “decimated” under former President Donald Trump’s administration. “[The Biden administration is] making huge efforts to adjudicate work permit applications for asylum seekers more quickly. But it is going to take some time to improve the processing times because of the deep hole that the prior administration put them into,” he said.

Mr. Yale-Loehr was quoted by Yahoo News in “After 10 Years of DACA, Dreamers Still Live in Legal Limbo.” The article discusses a new Biden administration rule designed to fortify the Deferred Action for Childhood Arrivals Program (DACA). The article quotes an op-ed Mr. Yale-Loehr co-authored about the program, published in Slate: “Because the Biden administration chiefly focused on its battle with the courts, the new rule fails to adopt any substantive measures to expand or strengthen the DACA program. Most conspicuously, the government declined to extend the date that a young immigrant must have arrived in the United States to apply for DACA. … [It] effectively set an expiration date for DACA regardless of what the courts decide.” https://news.yahoo.com/after-10-years-of-daca-dreamers-still-live-in-legal-limbo-224145492.html

Mr. Yale-Loehr was quoted by Boundless in “With DACA Program Frozen in Time, Dreamers Await Court Ruling.” The article quotes an op-ed Mr. Yale-Loehr co-authored about the program, published in Slate: “By keeping the original eligibility date, the administration effectively set an expiration date for DACA regardless of what the courts decide.” https://www.boundless.com/blog/dreamers-await-court-ruling/

Mr. Yale-Loehr was quoted by Newsweek in “Did DeSantis and Abbott Break Law with Migrant ‘Stunt’? Experts Weigh In.” Mr. Yale-Loehr said the situation was unlikely to meet the grounds for a credible human trafficking case under either state or federal laws. “Each law varies, but many laws define human trafficking as recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. As such, I think it is an exaggeration to claim that governors in Republican states are engaging in human trafficking by sending migrants to other states. In most cases that I have heard about, migrants have been happy to accept bus or plane tickets, even if they don’t know where they are going.” Mr. Yale-Loehr argued that while federal law prohibiting illegal transportation of migrants presented theoretically steadier grounds for criminal prosecutions, the chances of even that sticking were vanishingly thin. “That presents a closer case than the human trafficking argument. Still, illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law. The bottom line is that it is an exaggeration to claim that Republican governors are violating human trafficking laws or violating laws that bar illegal transportation of migrants.” https://www.newsweek.com/did-desantis-abbott-break-law-migrant-stunt-experts-weigh-1743910

Mr. Yale-Loehr was interviewed on WRFI public radio about ways to fix the United States’ immigration system. https://www.wrfi.org/wrfiprograms/the-scene/stephen-yale-loehr/

Mr. Yale-Loehr co-authored an op-ed, published by Slate, “Joe Biden’s New DACA Rule Does Not Go Nearly Far Enough.” https://slate.com/news-and-politics/2022/08/joe-biden-new-daca-rule-not-enough.html

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ABIL Immigration Insider • May 1, 2022

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In this issue:

1. ICE Announces Extension of I-9 Flexibilities to October 31, 2022 – The extension relates to deferral of the physical presence requirements of the employment eligibility verification process for certain employees.

2. USCIS Stops Applying Certain EAD Provisions for Asylum Applicants – In response to a decision in Asylumworks v. Mayorkas, U.S. Citizenship and Immigration Services has stopped applying two rules.

3. OFLC Announces New Submission Process for H-2B Applications for Temporary Employment Certification – H-2B submissions must be initiated and submitted in a new form module.

4. DHS Reminds Public That Emergency Response Areas Are ‘Protected’ for Immigration Enforcement Purposes – “Protected areas” include “evacuation routes, sites used for sheltering or the distribution of emergency supplies, food or water, or registration sites for disaster-related assistance or the reunification of families and loved ones.”

5. DHS Provides Details on ‘Uniting for Ukraine’ Process – Under the new process, available immediately, the Department of Homeland Security will offer certain Ukrainian citizens and their immediate family members recently displaced by Russia’s invasion of Ukraine an opportunity to travel to the United States to seek humanitarian parole for up to two years. Qualifications include passing biometric and biographic vetting, having sufficient financial support in the United States, and meeting other eligibility requirements listed in the notice.

6. Federal Court Temporarily Blocks Early Title 42 Termination Actions, Schedules Hearing; Mayorkas Issues Memo on Security and Preparedness – A federal court in Louisiana issued a temporary restraining order to block early implementation of termination of Title 42. A 20-page memo from DHS Secretary Mayorkas includes details on the “whole-of-government plan” to prepare for and manage an anticipated increase in noncitizens at the southwest border when Title 42 is terminated, as well as background on the current situation.

7. DHS Announces TPS Registration Process for Sudan and Ukraine – The notices provide information about how to register for temporary protected status under each country’s designation and apply for an employment authorization document. The 18-month registration period ends on October 19, 2023.

8. Biden Administration Announces New Measures for Ukrainians – President Biden announced new measures for Ukrainians, including “Uniting for Ukraine,” which includes a new streamlined process to provide Ukrainian citizens with opportunities to come to the United States.

9. CBP Continues Vaccination Requirements at U.S. Borders With Canada, Mexico – U.S. Customs and Border Protection will continue to require non-U.S. travelers entering the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated against COVID-19 and provide related proof of vaccination upon request.

10. Foreign Student Measures Announced: Extension of SEVP Guidance, and Relief for Nonimmigrant Student Citizens of Sudan and Ukraine – Several measures related to foreign students were announced.

11. EOIR to Stop Holding Hearings in Pittsburgh – EOIR announced that it is no longer holding hearings in Pittsburgh.

12. State Dept., USCIS Announce Actions Related to Reauthorized EB-5 Regional Center Program; Visa Bulletin Revised to Include New Categories – The Department of State and U.S. Citizenship and Immigration Services announced several actions related to the reauthorized EB-5 regional center program.

13. DHS Designates Cameroon for TPS for 18 Months – Only individuals who were already residing in the United States as of April 14, 2022, will be eligible for temporary protected status under this designation. According to estimates, approximately 40,000 Cameroonians in the United States may qualify. This is the first time that the Department of Homeland Security has designated Cameroon for TPS.

14. USCIS Announces Online Filing for DACA Renewal Forms – Individuals who previously received deferred action under Deferred Action for Childhood Arrivals may now file renewal requests on Form I-821D, Consideration of Deferred Action for Childhood Arrivals, online. Such individuals must also file Form I-765, Application for Employment Authorization, and the I-765 Worksheet.

15. SEVP Asks Certain F-1 and M-1 Students to Verify Employment Data in SEVIS by May 16 – The Student and Exchange Visitor Program (SEVP) asked F-1 students previously on post-completion optional practical training and M-1 students previously on practical training to verify their employment data in the Student and Exchange Visitor Information System by contacting the SEVP Response Center by May 16, 2022.

16. DHS Proposes Procedures Regarding Debarment of Vessels Violating Longshore Work Rules – The Department of Homeland Security proposes to amend its regulations to set forth procedures regarding the debarment of certain vessels from entering U.S. ports. Affected vessels include those owned or chartered by an entity found to be in violation of certain laws and regulations relating to the performance of longshore work by nonimmigrant crew members.

17. ‘Jumpstart Act’ to Recapture Unused Visas Introduced in House – The bill would recapture approximately 400,000 family- and employment-based visas, create an accelerated path to adjustment of status for those already in the United States, and provide additional funds to USCIS to improve visa processing.

18. OFLC Reminds Employers Filing Form ETA-9142B to Submit Their Initiated Cases Before April 28 – H-2B submissions made after 6 p.m. ET on April 28, 2022, must be started and submitted in the new form module. Any initiated H-2B cases submitted prior to that date and time will be deleted and a new application using the upgraded module will need to be created.

19. EADs Extended for Certain Syria and Somalia TPS Beneficiaries – USCIS is issuing individual notices to certain Syrian and Somalian temporary protected status beneficiaries whose applications to renew their employment authorization documents remain pending.

20. South Sudan TPS Extended, Redesignated for 18 Months – USCIS announced the extension and redesignation of South Sudan for temporary protected status (TPS) for 18 months, from May 3, 2022, through November 3, 2023.

21. District Court Vacates Final Rule on Non-Range H-2A Adverse Effect Wage Rate Methodology – In United Farm Workers v. DOL, the district court vacated a 2020 final rule, “Adverse Effect Wage Rate [AEWR] Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,” remanding it to the Department of Labor for further rulemaking consistent with the court’s order.

22. USCIS Implements ‘Risk-Based’ Approach for Conditional Permanent Resident Interviews – Effective immediately, new criteria will guide USCIS officers on when to waive interviews for conditional permanent residents who filed a Form I-751, Petition to Remove Conditions on Residence.

23. ABIL Global: Canada – Canada has launched a new stream of immigration for Ukrainians.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – May 2022

1. ICE Announces Extension of I-9 Flexibilities to October 31, 2022

On April 25, 2022, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 flexibilities until October 31, 2022. The extension relates to deferral of the physical presence requirements of the employment eligibility verification process for certain employees, first announced on March 20, 2020, and updated periodically.

The requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in person applies only to those employees “who physically report to work at a company location on any regular, consistent, or predictable basis,” ICE said. Employees working exclusively remotely who were hired on or after April 1, 2021, are temporarily exempt from the physical inspection requirements.

Details:

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2. USCIS Stops Applying Certain EAD Provisions for Asylum Applicants

In response to a decision in Asylumworks v. Mayorkas, U.S. Citizenship and Immigration Services (USCIS) announced that effective February 8, 2022, the agency has stopped applying two rules:

  • The “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications” rule (also known as the “Timeline Repeal Rule”); and
  • The “Asylum Application, Interview, and Employment Authorization for Applicants” rule (also known as the “Asylum EAD rule”).

USCIS is applying the provisions governing asylum applications, interviews, and employment authorization eligibility in the (c)(8) category (based on pending asylum applications) that were in place before the above final rules took effect in August 2020. USCIS said that these changes apply to adjudications of Form I-765, Application for Employment Authorization, and Form I-589, Application for Asylum and for Withholding of Removal, that were pending with USCIS as of February 8, 2022, and to these forms that were received on or after that date.

Among other things, now that the Timeline Repeal Rule, which removed the 30-day timeline for deciding initial (c)(8) category employment authorization applications, has been vacated, generally USCIS must adjudicate initial Form I-765s based on pending asylum applications within 30 days, the agency acknowledged.

Selected highlights of the USCIS announcement include:

  • Until USCIS publishes revised forms, applicants should continue to use the current Forms I-765 and I-589 (dated 08/25/20). USCIS said that if an applicant submits responses to questions on these forms based on the vacated rules, it will not consider them when it decides the application.
  • Instead of having to wait 365 days to file a Form I-765 based on a pending asylum application, applicants may file 150 days after filing an asylum application. “You are not eligible to receive an Employment Authorization Document (EAD) until your asylum application has been pending for a total of 180 days,” USCIS said.
  • USCIS instructed those who are requesting either initial or renewal employment authorization based on a pending asylum application not to submit the $85 biometric services fee with the Form I-765, because it is no longer required. “If you submit the $85 biometric services fee, we may reject your application for overpayment,” USCIS said. Also, applicants no longer need to appear for a biometric services appointment (Application Support Center (ASC) appointment) specifically related to the Form I-765. However, applicants must appear for biometric services appointments related to an asylum application (Form I-589) or any other applications filed.
  • Applicants are no longer barred from receiving work authorization based on an asylum application if they entered or attempted to enter the United States between ports of entry. Therefore, applicants do not need to answer Questions 30b.–g. on Form I-765. “We no longer consider responses to these questions—which ask about the way you entered the United States and whether you were inspected, admitted, or paroled—when we adjudicate your Form I-765 based on the (c)(8) category,” USCIS said.
  • Asylum seekers who file asylum applications after the 1-year filing deadline are no longer barred from receiving an EAD based on a pending asylum application.

Details:

  • USCIS announcement, Apr. 28, 2022,

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3. OFLC Announces New Submission Process for H-2B Applications for Temporary Employment Certification

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced on April 28, 2022, that the Foreign Labor Application Gateway (FLAG) is implementing technical changes to H-2B filing for the Form ETA-9142B (H-2B Application for Temporary Employment Certification) submission process. OFLC said that FLAG has upgraded the H-2B form fill and submit module, “which is expected to reduce lag time in completing form fields, document uploads, and appendices. All other FLAG H-2B functionality will be available to filers in the upgraded fill and submit module.”

H-2B submissions must be initiated and submitted in the new form module. Any initiated H-2B cases submitted before 6 p.m. ET on April 28, 2022, will be deleted and a new application using the upgraded module will need to be created, OFLC said.

Details:

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4. DHS Reminds Public That Emergency Response Areas Are ‘Protected’ for Immigration Enforcement Purposes

Following recent wildfires in the Southwest and Midwest of the United States, the Department of Homeland Security (DHS) issued a press release on April 28, 2022, to remind the public that sites that provide emergency response and relief are considered “protected areas.” DHS said this means that “to the fullest extent possible,” U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) “do not conduct immigration enforcement activities at protected areas such as along evacuation routes, sites used for sheltering or the distribution of emergency supplies, food or water, or registration sites for disaster-related assistance or the reunification of families and loved ones.”

DHS noted that at the request of the Federal Emergency Management Agency (FEMA) or local and state authorities, ICE and CBP may help conduct search and rescue, air traffic de-confliction, and public safety missions. ICE and CBP provide emergency assistance to individuals regardless of their immigration status, DHS said. “DHS officials do not and will not pose as individuals providing emergency-related information as part of any enforcement activities.”

DHS said it is aware that some survivors may fear applying for FEMA assistance due to their immigration status. “If you or a member of your household applies for FEMA assistance, FEMA does not collect information regarding your immigration status and does not proactively provide your personal information to ICE or CBP for immigration enforcement. However, in rare circumstances, based on a specific request, ICE or CBP could request this information if you are a current threat to national security or public safety because you pose an articulable risk of death, violence, or physical harm to any person,” DHS said.

DHS said it “is committed to ensuring that every individual who seeks shelter, aid, or other assistance as a result of the wildfires is able to do so regardless of their immigration status.”

Details:

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5. DHS Provides Details on ‘Uniting for Ukraine’ Process

On April 27, 2022, the Department of Homeland Security (DHS) issued a notice providing details on the new “Uniting for Ukraine” process. Under the new process, available since April 25, 2022, DHS will offer certain Ukrainian citizens and their immediate family members recently displaced by Russia’s invasion of Ukraine an opportunity to travel to the United States to seek humanitarian parole for up to two years. Qualifications include passing biometric and biographic vetting, having sufficient financial support in the United States, and meeting other eligibility requirements listed in the DHS notice.

DHS noted that as of April 10, 2022, nearly 12 million people had fled their homes as a result of the war in Ukraine, including seven million displaced inside Ukraine. DHS noted that this was due to ongoing violence and resulting widespread electricity outages, a lack of water and food, infrastructure and residential building damage, medical supply issues, hospital shortages, and ongoing displacement and fatalities of civilians.

Details:

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6. Federal Court Temporarily Blocks Early Title 42 Termination Actions, Schedules Hearing; Mayorkas Issues Memo on Security and Preparedness

On April 26, 2022, Alejandro Mayorkas, Secretary of the Department of Homeland Security (DHS), issued a memorandum on the Biden administration’s plan to manage increased encounters of noncitizens at the U.S. border with Mexico. The increase is expected once Title 42 of the U.S. Code is lifted, effective May 23, 2022. However, a federal court in Louisiana issued a temporary restraining order on April 27, 2022, to block early implementation of termination of Title 42. The Biden administration, which the court noted had acknowledged some changes in policy in preparation for Title 42 termination, said it would comply with the order. A court hearing is scheduled for May 13, 2022, to consider plaintiff states’ request for a preliminary injunction against terminating Title 42. Plaintiff states argue that the Title 42 termination order was not issued in compliance with the Administrative Procedure Act.

Title 42 of the U.S. Code is a public health law that relates to the expulsion of noncitizens due to public health concerns, in this case the prevention of the spread of COVID-19. Under a Centers for Disease Control and Prevention order, the Mayorkas memo notes, a “significant percentage of all noncitizens encountered” at the southwest border are currently expelled. The Mayorkas memo says that once the order is lifted, all noncitizens will be processed under Title 8. Under Title 8, noncitizens without a viable asylum claim or unable to establish a legal basis to remain in the United States are removed to their home countries.

The 20-page Mayorkas memo includes details on the “whole-of-government plan” to prepare for and manage the anticipated increase in noncitizens at the southwest border, as well as background on the current situation.

Details:

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7. DHS Announces TPS Registration Process for Sudan and Ukraine

The Department of Homeland Security (DHS) posted Federal Register notices on temporary protected status (TPS) for Sudan and Ukraine. The notices provide information about how to register for TPS under each country’s designation and apply for an employment authorization document. The 18-month registration period for both countries began on April 19, 2022, and ends on October 19, 2023. All individuals who want to request TPS under the designation of Sudan or Ukraine must file an application.

Sudan

To be eligible under the Sudan designation, individuals must demonstrate their continuous residence in the United States since March 1, 2022, and continuous physical presence in the United States since April 19, 2022. Individuals arriving in the United States after March 1, 2022, are not eligible for TPS under this designation and may be subject to removal if they have no other authorization to be in the United States.

U.S. Citizenship and Immigration Services (USCIS) estimates 3,090 individuals may be eligible for TPS under the designation of Sudan. This includes an estimated 2,390 newly eligible individuals as well as an estimated 700 current TPS Sudan beneficiaries, whose TPS-related documentation has been automatically extended pursuant to court orders through at least December 31, 2022. These individuals must file a new application for TPS under the new Sudan designation to avoid losing protection if the court injunctions are lifted.

Ukraine

To be eligible under the Ukraine designation, individuals must demonstrate their continuous residence in the United States since April 11, 2022, and continuous physical presence in the United States since April 19, 2022.

USCIS estimates 59,600 individuals currently in the United States may be eligible for TPS under the designation of Ukraine. Ukrainian nationals currently outside the United States are not eligible for TPS under this designation, and they will not become eligible by relocating to the United States. Such Ukrainians are encouraged instead to apply for a visa or other legal pathway at a U.S. consulate abroad.

Details:

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8. Biden Administration Announces New Measures for Ukrainians

On April 21, 2022, President Biden announced new measures for Ukrainians, including “Uniting for Ukraine,” which includes “a new streamlined process to provide Ukrainian citizens…opportunities to come to the United States.” In addition, the Department of State announced increased refugee resettlement processing and “broadened access” to visa processing at consular posts overseas. President Biden has committed to admit “up to 100,000 Ukrainians and others” fleeing Russia’s war against Ukraine. An estimated 5 million people have left Ukraine so far following the Russian invasion. Below are highlights of the new measures:

  • Uniting for Ukraine allows Ukrainians displaced by the war to apply for humanitarian parole in the United States. To be eligible, Ukrainians must have been residents in Ukraine as of February 11, 2022; have a sponsor in the United States; complete vaccinations and other public health requirements; and pass biometric and biographic screening and vetting security checks. Ukrainians approved via this process will be authorized to travel to the United States and be considered for parole, on a case-by-case basis, for up to two years. Once paroled through this process, Ukrainians will be eligible for work authorization.
  • The Department of Homeland Security (DHS) said Ukrainians should not travel to Mexico to pursue entry into the United States. Following the launch of Uniting for Ukraine, Ukrainians who present at land U.S. ports of entry without a valid visa or without pre-authorization to travel to the United States through Uniting for Ukraine “will be denied entry and referred to apply through this program.”
  • Beginning on April 25, 2022, U.S.-based individuals and entities can apply to the Department of Homeland Security (DHS) to sponsor displaced Ukrainian citizens through the “Uniting for Ukraine” process, which will go live that day on the DHS website. Any U.S. citizen or individual, including representatives of nongovernmental organizations (NGOs), can sponsor Ukrainian applicants. Individuals and organizations seeking to sponsor Ukrainian citizens in the United States must declare their financial support and pass security background checks. Eligibility requirements include required vaccinations and other public health requirements, as well as biographic and biometric screening, vetting, and security checks.
  • The Department of State will expand U.S. resettlement operations in Europe to provide more resources to process Ukrainian citizens for refugee resettlement under the Lautenberg program, and will expand referral mechanisms for Ukrainian citizens and others fleeing the war to the U.S. Refugee Admissions Program (USRAP). To do so, the United States is working with European partners, the United Nations High Commissioner for Refugees, and NGOs to identify particularly vulnerable Ukrainian citizens and others fleeing the conflict who may warrant permanent resettlement through USRAP.
  • DHS said that European embassies and consulates are also increasing, to the extent possible, the number of nonimmigrant visa appointments and ensuring there is an expedited visa appointment program for individuals with humanitarian, medical, or other extraordinary circumstances.

Details:

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9. CBP Continues Vaccination Requirements at U.S. Borders With Canada, Mexico

U.S. Customs and Border Protection will continue to require non-U.S. travelers entering the United States via land ports of entry and ferry terminals at the U.S.-Mexico and U.S.-Canada borders to be fully vaccinated against COVID-19 and provide related proof of vaccination upon request. These requirements continue to apply to non-U.S. travelers who are traveling both for essential and non-essential reasons, but do not apply to U.S. citizens, lawful permanent residents, or U.S. nationals, the Department of Homeland Security (DHS) said.

Non-U.S. travelers entering the United States via land ports of entry and ferry terminals, whether for essential or non-essential reasons, must:

  • Verbally attest to their COVID-19 vaccination status;
  • Provide, upon request, proof of a CDC-approved COVID-19 vaccination;
  • Present a valid Western Hemisphere Travel Initiative (WHTI)-compliant document, such as a valid passport, Trusted Traveler Program card, or Enhanced Tribal Card; and
  • Be prepared to present “any other relevant documents” requested by a U.S. Customs and Border Protection (CBP) officer during a border inspection.

COVID-19 testing is not required to enter the United States via a land port of entry or ferry terminal, DHS said.

Details

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10. Foreign Student Measures Announced: Extension of SEVP Guidance, and Relief for Nonimmigrant Student Citizens of Sudan and Ukraine

Several measures related to foreign students were announced:

SEVP March 2020 guidance continued. The Student and Exchange Visitor Program (SEVP) announced via a broadcast message issued April 18, 2022, that it is extending the guidance originally issued in March 2020 for F and M students to the 2022-23 academic year. This guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns related to the COVID-19 pandemic. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad. Significantly, there are no changes to the original guidance, which will remain in effect during the 2022-23 academic year.

DHS notices of special student relief for Sudan, Ukraine. The Department of Homeland Security (DHS) announced that it is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Sudan or Ukraine. Effective through October 19, 2023, affected students may request employment authorization, work an increased number of hours while the school is in session and reduce their course load while continuing to maintain their F–1 nonimmigrant student status. The Department of Homeland Security (DHS) will deem an F–1 nonimmigrant student who receives employment authorization by means of this notice to be engaged in a ‘‘full course of study’’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in this notice.

Details:

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11. EOIR to Stop Holding Hearings in Pittsburgh

The Department of Justice’s Executive Office for Immigration Review (EOIR) announced that it is no longer holding hearings in Pittsburgh, effective at the close of business on April 29, 2022, due to “space and personnel limitations.”

Those with cases assigned to the Pittsburgh hearing location can have their cases heard in person at the Philadelphia Immigration Court or remotely. All parties will be notified of their options before their scheduled hearing dates, EOIR said.

Details:

  • EOIR notice, Apr. 21, 2022,

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12. State Dept., USCIS Announce Actions Related to Reauthorized EB-5 Regional Center Program; Visa Bulletin Revised to Include New Categories

The Department of State (DOS) and U.S. Citizenship and Immigration Services (USCIS) announced several actions related to the newly reauthorized EB-5 regional center program. Below are highlights.

Department of State

DOS has resumed processing immigrant visas associated with the EB-5 regional center program based on approved USCIS Forms I-526 (Immigrant Petition by Alien Entrepreneur), including those filed on or before the expiration of the previous regional center program on June 30, 2021.

DOS explained that on March 15, 2022, President Biden signed a law, the EB-5 Reform and Integrity Act of 2022, that made changes to the EB-5 program, reauthorized the EB-5 immigrant investor regional center program, and directed that certain “grandfathered” immigration benefits be processed.

Also, DOS’s Visa Bulletin for May 2022 includes revisions and new EB-5 visa preference categories. Among other things, the bulletin notes the creation of two new “pools” of visa numbers in the EB-5 category: one pool “reserved” for certain set-aside categories and a second “unreserved” pool.

The bulletin notes that the Employment-Based Fifth Preference Unreserved (C5, T5, and all others) category is Current for all countries. The Employment-Based Fifth Preference Unreserved (I5 and R5) categories are Current for all countries except China-mainland born, which is subject to a 22NOV15 final action date. All set-aside categories are Current for all countries. DOS said it may become necessary to establish a China-mainland born final action date and application filing date for the C5 and T5 categories as early as June to keep number use within the maximum allowed under the fiscal year 2022 annual limits if sufficient demand materializes.

USCIS

Pursuant to the new law, USCIS announced that the reauthorized regional center program will be in effect through September 30, 2027. The agency said it is reviewing the new law and will provide additional guidance.

USCIS noted that the new law requires all entities seeking regional center designation to provide a proposal to comply with the new program requirements effective May 14, 2022. USCIS said it is not accepting Form I-924, Application For Regional Center Designation Under the Immigrant Investor Program, for this purpose.

USCIS has resumed processing regional center-based Forms I-526, Immigrant Petition by Alien Entrepreneur, filed on or before the sunset of the previous regional center program on June 30, 2021. USCIS said it will adjudicate all Form I-526 petitions filed before March 15, 2022, according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place before the enactment of the new law). USCIS will continue to process Form I-526 petitions under the “visa availability approach,” prioritizing those Form I-526 petitions for investors with an available visa or a visa that will be available soon.

USCIS said it will continue to reject all Form I-526 petition received on or after July 1, 2021, when it indicates that the petitioner’s investment is associated with a regional center.

The agency also said it will continue to adjudicate Forms I-829, Petition by Investor to Remove Conditions on Permanent Residence. The agency will adjudicate Form I-829 petitions associated with Form I-526 filed before March 15, 2022, under the applicable eligibility requirements in place before enactment of the new law.

Details

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13. DHS Designates Cameroon for TPS for 18 Months

The Department of Homeland Security (DHS) announced the designation of Cameroon for temporary protected status (TPS) for 18 months due to ongoing armed conflict in that country. Only individuals who were already residing in the United States as of April 14, 2022, will be eligible for TPS under this designation. According to estimates, approximately 40,000 Cameroonians in the United States may qualify. This is the first time that DHS has designated Cameroon for TPS.

Cameroon’s 18-month designation will take effect on the publication date of the Federal Register notice, which will provide instructions for applying for TPS and an employment authorization document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

DHS said that the designation is based on “both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely.” DHS cited conditions resulting from “extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.”

Details:

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14. USCIS Announces Online Filing for DACA Renewal Forms

U.S. Citizenship and Immigration Services (USCIS) announced on April 12, 2022, that individuals who previously received deferred action under Deferred Action for Childhood Arrivals (DACA) may now file renewal requests on Form I-821D, Consideration of Deferred Action for Childhood Arrivals, online. Such individuals must also file Form I-765, Application for Employment Authorization, and the I-765 Worksheet, which is required as evidence in support of the DACA filing. A DACA requestor must first create a free USCIS online account to submit forms, pay fees, track status, and respond to Requests for Evidence.

USCIS said that During fiscal year (FY) 2021, USCIS received more than 8.8 million requests for immigration benefits and other requests, including 438,950 Form I-821D DACA requests. Since launching online filing in 2017, the overall number of forms filed online has increased significantly. In FY 2021, approximately 1,210,700 applications, petitions and requests were filed online, a 2.3% increase from the 1,184,000 filed in FY 2020.

USCIS noted that under a court order, the Department of Homeland Security continues to accept both initial and renewal DACA requests, although the agency is prohibited from granting initial DACA requests at this time.

Details:

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15. SEVP Asks Certain F-1 and M-1 Students to Verify Employment Data in SEVIS by May 16

In a broadcast message, the Student and Exchange Visitor Program (SEVP) asked F-1 students previously on post-completion optional practical training (OPT) and M-1 students previously on practical training to verify their employment data in the Student and Exchange Visitor Information System (SEVIS) by contacting the SEVP Response Center (SRC) by May 16, 2022.

Students can contact the SRC by email at [email protected] or by phone at 703-603-3400 or 800-892-4829. The SRC is open Monday through Friday from 8 a.m. to 6 p.m. ET, except federal holidays.

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16. DHS Proposes Procedures Regarding Debarment of Vessels Violating Longshore Work Rules

The Department of Homeland Security (DHS) published a notice of proposed rulemaking on April 12, 2022, that would amend its regulations to set forth procedures regarding the debarment of certain vessels from entering U.S. ports. Affected vessels include those owned or chartered by an entity found to be in violation of certain laws and regulations relating to the performance of longshore work by nonimmigrant crew members.

Comments must be received by June 13, 2022, using the instructions provided in the proposed rule.

Details

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17. ‘Jumpstart Act’ to Recapture Unused Visas Introduced in House

On April 4, 2022, Rep. Zoe Lofgren (CA-19) introduced H.R. 7374, the “Jumpstart our Legal Immigration System Act,” a bill that would recapture approximately 400,000 family- and employment-based visas, create an accelerated path to adjustment of status for those already in the United States, and provide additional funds to U.S. Citizenship and Immigration Services (USCIS) to improve visa processing. Much of the bill was included in the House-passed version of the Build Back Better Act.

According to a statement from Rep. Lofgren, the legislation would:

  • Amend the Immigration and Nationality Act to prevent the future loss of unused employment-based visas by ensuring that they roll over to the family-based categories.
  • Recapture unused immigrant visas from 1992 through 2021, including approximately 222,000 unused family-sponsored visas and approximately 157,000 employment-based visas.
  • Allow an estimated 40,000 individuals who were selected for, but did not receive, diversity visas to reapply for such visas. These individuals were unable to finalize the process or enter the United States due to various executive orders or COVID-related office closures and restrictions.
  • Allow individuals who are in the United States and eligible for adjustment to legal permanent resident (LPR) status except for the lack of an available visa number to apply for adjustment upon paying a fee. “This will allow individuals to receive work authorization while they wait for a visa number to become available and will prevent dependent children from ‘aging out’ of eligibility for LPR status,” Rep. Lofgren’s statement noted.
  • Allow immigrants who are in the United States to receive an exemption from the immigrant visa numerical limits and adjust their status to permanent residence if their immigrant visa petition has been approved for two years and they pay a supplemental fee.

Details:

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18. OFLC Reminds Employers Filing Form ETA-9142B to Submit Their Initiated Cases Before April 28

The Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the Foreign Labor Application Gateway (FLAG) will be upgrading the H-2B form “fill and submit” module, which OFLC said is expected to reduce lag time in completing form fields, document uploads, and appendices. All other FLAG H-2B functionality will be available to filers in the upgraded fill and submit module.

H-2B submissions made after 6 p.m. ET on April 28, 2022, must be started and submitted in the new form module, OFLC said. Any initiated H-2B cases submitted prior to that date and time will be deleted and a new application using the upgraded module will need to be created.

Details:

OFLC notice, Apr. 5, 2022, https://www.dol.gov/agencies/eta/foreign-labor

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19. EADs Extended for Certain Syria and Somalia TPS Beneficiaries

U.S. Citizenship and Immigration Services (USCIS) is issuing individual notices to certain Syrian and Somalian temporary protected status (TPS) beneficiaries whose applications to renew Form I‑766, Employment Authorization Document (EAD), remain pending.

Syria

The notices further extend the validity of certain Syrian TPS beneficiaries’ EADs through September 24, 2022. Their current EADs bear an A12 or C19 category and an expiration date of March 31, 2021; September 30, 2019; or March 31, 2018.

For Form I-9, Employment Eligibility Verification, a TPS Syria beneficiary may present an EAD with a Category Code of A12 or C19 and an expiration date of March 31, 2021; September 30, 2019; or March 31, 2018, along with an individual notice mailed by USCIS that automatically extends their EAD through September 24, 2022. In these cases, employers should enter September 24, 2022, as the new expiration date of the automatically extended EAD in Section 2 under List A. Employers must reverify these employees on Form I‑9 before they start work on September 25, 2022.

Once a new employee has completed the I‑9 verification, employers should create a case in E‑Verify for the employee. The employer should enter the EAD document number in E-Verify that was entered on the I‑9 form, as well as the automatically extended date of September 24, 2022. Employers must reverify these employees on the I‑9 form before they start work on September 25, 2022.

Somalia

The notices further extend the validity of certain Somalian TPS beneficiaries’ EADs through September 12, 2022. Their current EADs bear an A12 or C19 category and a September 17, 2021, expiration end date, which was previously automatically extended.

For affected Syrians and Somalians, USCIS noted that Systematic Alien Verification for Entitlements (SAVE) can verify the EAD extension provided by the individual notice. In some instances, SAVE user agencies may need to institute additional verification to do so, USCIS said.

Details:

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20. South Sudan TPS Extended, Redesignated for 18 Months

U.S. Citizenship and Immigration Services (USCIS) announced the extension and redesignation of South Sudan for temporary protected status (TPS) for 18 months, from May 3, 2022, through November 3, 2023.

Those who currently have TPS under South Sudan’s designation and would like to keep their TPS must re-register during the 60-day re-registration period ending May 3, 2022. Those who are filing an initial application for TPS under South Sudan’s redesignation, effective May 3, 2022, must register during the 18-month registration period ending November 3, 2023.

USCIS encourages beneficiaries and applicants to register as soon as possible.

Details

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21. District Court Vacates Final Rule on Non-Range H-2A Adverse Effect Wage Rate Methodology

In United Farm Workers v. DOL, on April 4, 2022, a federal district court vacated a 2020 final rule, “Adverse Effect Wage Rate [AEWR] Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,” remanding it to the Department of Labor for further rulemaking consistent with the court’s order.

The court noted that DOL said it considers actual, current wage data to be the best source of information for determining prevailing wages, when an appropriate source is available, and that using another methodology “increases the likelihood of permitting employers to pay wages that are not reflective of market wages, which undermines the Department’s mandate to prevent an adverse effect on the wages of workers in the United States similarly employed.” Consistent with those statements, a 2021 proposed rule would use the FLS to establish AEWRs for most H-2A jobs, while using Occupational Employment and Wage Statistics data for occupations where FLS data is unavailable. The 2021 proposed rule also recognizes that employers must pay the wage for the highest-paid occupation performed by an H-2A worker when their role covers multiple occupation classifications, the court noted.

Among other things, the court concluded that the final rule was arbitrary and capricious because it failed to protect U.S. workers against adverse effects to their wages and working conditions.

Details

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22. USCIS Implements ‘Risk-Based’ Approach for Conditional Permanent Resident Interviews

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2022, that it is adopting a “risk-based” approach when waiving interviews for certain conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.

Effective immediately, new criteria will guide USCIS officers on when to waive interviews for CPRs who filed a Form I-751, Petition to Remove Conditions on Residence. This update replaces previous agency guidance that required all CPRs to undergo an interview if they obtained CPR status via consular processing, the agency said.

Details

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23. ABIL Global: Canada

Canada has launched a new stream of immigration for Ukrainians.

The Canada-Ukraine Authorization for Emergency Travel (CUAET) allows Ukrainian nationals to apply for a Canadian visa without most of the usual requirements (free of charge, exempt from completing an immigration medical exam overseas, the option to apply for an open work permit, exempt from Canada’s COVID-19 vaccination requirements) excepting biometrics in certain cases and ArriveCAN. Announced on March 17, 2022, the CUAET is particularly interesting for Ukrainians as compared to other visas available because it allows them to obtain an open work permit and/or study permit free of charge, and they can be authorized to stay in Canada up to three years instead of the standard six months. For non-complex cases, the aim is to approve such visa applications within 14 days of receipt. No sponsor in Canada is required, no ties to home country are to be considered, and there are no financial requirements.

To apply for CUAET, Ukrainians need to apply for a Temporary Resident Visa and an Open Work Permit by mentioning in their application that it is made through CUAET to highlight the urgency of the demand to the visa officers. Once the application is submitted, Ukrainians need to take biometrics only if they are aged 18 to 60. Then they normally would need to submit their passport for placement of Canadian Visa (although Canadian authorities now emit counterfoil-less visas if the applicant is in one of six departure countries: Poland, Germany, Slovakia, Hungary, Austria, or Romania).

On April 28, 2022, Canada received 163,747 applications and approved 56,633, and 19,628 Ukrainians arrived in Canada. As there is no limit on the number of CUAET applications of CUAET, it is a popular and successful program, according to reports.

Details:

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New Publications and Items of Interest

USCIS webinar on Deferred Action for Childhood Arrivals (DACA) online filing for those who previously received DACA. U.S. Citizenship and Immigration Services (USCIS) will hold a webinar on May 19, 2022, from 2 to 3:30 p.m. ET. During this webinar, USCIS representatives will provide an overview of the USCIS online account features and share instructions for the newest USCIS form available for online filing for those who previously received DACA (Form I-821D, Consideration of Deferred Action for Childhood Arrivals). The option to file online is only available for individuals who have previously been granted DACA. Individuals requesting DACA for the first time must continue to file a paper Form I-821D, Form I-765, and the Form I-765 Worksheet. To register, go to https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_579, enter your email address and select “Submit”; select “Subscriber Preferences”; select the “Questions” tab; complete the questions and select “Submit.” USCIS will send a confirmation email with additional details once the agency processes your registration.

USCIS Listening Session on EB-5 Reform and Integrity Act of 2022. USCIS will hold a virtual engagement on the EB-5 program and new law on Friday, April 29, 2022, from 2 to 3:30 p.m. ET. Discussion and updates will include the EB-5 Reform and Integrity Act of 2022, which requires all entities seeking regional center designation to provide a proposal in compliance with the new program requirements, effective May 14, 2022. USCIS Director Ur Jaddou will provide opening remarks, and USCIS will share updates on implementation of the new law and guidance about the new designation filing process. USCIS will then hold a listening session to hear feedback from stakeholders regarding the statutory changes. For more information or to register, see https://www.uscis.gov/outreach/upcoming-national-engagements/uscis-eb-5-reform-and-integrity-act-of-2022-listening-session

Remarks in Panama on regional issues. U.S. Secretary of Homeland Security Alejandro Mayorkas and Secretary of State Antony Blinken delivered remarks in Panama on April 21, 2022. Secretary Mayorkas said DHS’s immediate goals are to “think regionally about stemming migration flows through enhanced prevention and enforcement; create viable legal pathways in the spirit of regional responsibility-sharing; address root causes by investing in the stabilization of communities that need it most; foster and grow legitimate trade and travel between our countries that will help our communities prosper; and attack the shared dangers of transnational crime.” https://www.dhs.gov/news/2022/04/21/secretary-mayorkas-delivers-remarks-joint-media-availability-secretary-state-antony

Lockbox filing location updates. USCIS has updated its lockbox filing location webpage. The page provides a summary of changes USCIS makes to any lockbox filing location. For the most current information on where to file, see the “Where to File” section on the webpage for each form. Users can also subscribe “Forms Updates” GovDelivery distribution list to receive an email each time the agency updates a filing location. https://www.uscis.gov/forms/forms-updates/lockbox-filing-location-updates

Visa reciprocity tables updated. The Department of State has updated its visa reciprocity tables. Nonimmigrant visa applicants from certain countries/areas of authority may be required to pay a visa issuance fee after their application is approved. These fees are based on the principle of reciprocity: when a foreign government imposes fees on U.S. citizens for certain types of visas, the United States will impose a reciprocal fee on citizens of that country/area of authority for similar types of visas. https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html

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

Gomberg Dalfen S.E.N.C (Avi Gomberg‘s [bio: https://www.abil.com/lawyers/lawyers-gomberg.cfm?c=CA] firm) and Corporate Immigration Law Firm (BJ Caruso‘s [bio: https://www.abil.com/lawyers/lawyers-caruso.cfm?c=CA] firm) were named by Canadian Lawyer as Top Immigration Law Boutiques for 2022-23. https://www.canadianlawyermag.com/rankings/top-immigration-law-boutiques-2022-23/365708

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) announced that Foster LLP Partner Todd Fowler and Senior Attorney Florence Luk will present a webinar, “Summer Travel During Covid-19: What You Need to Know,” on Wednesday, May 11, 2022. The webinar will provide HR professionals with an overview of the latest regarding travel restrictions and which countries are affected. The presenters will also discuss strategies for filing work visa extension petitions with U.S. Citizenship and Immigration Services in lieu of visa applications presented at U.S. Embassies abroad. For more information or to register, see

Mr. Loughran announced:

  • Partner Stephanie Paver and Senior Attorney Ben Schatz will present in a Foster webinar, “PERM Labor Certification: A Refresher and Updates to the Good Faith Recruitment Process” on Wednesday, April 13, 2022. The webinar will provide HR professionals with a refresher on the PERM labor certification process and helpful updates to the U.S. Department of Labor (DOL) requirements for a good faith recruitment process. https://attendee.gotowebinar.com/register/2736242859876821520?source=ABIL
  • Partner Dorothee Mitchell will speak in a BCON South Breakout Session, “Immigration Updates in an Ever-Changing World” on Friday, May 13, 2022. The session will cover updates on U.S. immigration after pandemic reopening, impacts on U.S. immigration under the Biden administration, and what is new in U.S.-German citizenship law. https://www.gaccsouth.com/en/events/bcon-south

Cyrus Mehta presented on “Immigration Relief for Ukrainian Refugees: What the United States is Currently Offering,” sponsored by the Practising Law Institute, on March 29, 2022. The video recording is available at https://www.pli.edu/programs/immigration-relief-for-ukrainian-refugees-what-the-united-states-is-currently-offering?t=ondemand. Mr. Mehta posted a blog on the same topic, available at http://blog.cyrusmehta.com/2022/04/immigration-relief-for-ukrainian-refugees-what-the-united-states-is-currently-offering-2.html.

Greg Siskind, of Siskind Susser, has authored “Siskind Summary—Uniting for Ukraine Program.” https://www.visalaw.com/siskind-summary-uniting-for-ukraine-program/?locale=en

Wolfsdorf Rosenthal LLP has published a blog post and several webinars on the newly reauthorized EB-5 regional center program. https://wolfsdorf.com/news-and-resources/

Wolfsdorf Rosenthal LLP has published a new blog post: “USCIS Announces ‘Trio’ of Backlog Relief Actions, Expansion of Premium Processing, Relief for Work Permit Holders.” https://wolfsdorf.com/news-and-resources/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by the New York State Bar Association in “NYSBA Members Fight for Immigrant Representation.” Mr. Yale-Loehr, who is co-chair with Shayna Kessler of NYSBA’s Immigration Representation Committee, said, “We try to encourage more members to work pro bono for immigrants, and Shayna has been particularly active in trying to work on funding issues and legislative issues to make it easier to get representation for immigrants in New York State. Immigrants are not guaranteed an attorney. Over half of all immigrants don’t have a lawyer, and immigration law is one of the most complex areas of law in the country. For asylum seekers, it can be a life and death decision.” https://nysba.org/nysba-members-fight-for-immigrant-representation/

Mr. Yale-Loehr co-authored  “How a Supreme Court Abortion Ruling May Harm Refugee Women,” New York Daily News, Apr. 20, 2022. https://www.nydailynews.com/opinion/ny-oped-supreme-court-refugee-abortion-20220420-iyjrkcorjndk5gpxads5qzi4z4-story.html

Mr. Yale-Loehr was quoted by Spectrum News in “Several Democrats Side With Republicans to Keep Border Restrictions.” He noted that the Trump administration said “that for public health reasons they were going to turn back most people who tried to enter from Mexico into the United States, if they did not already have a valid visa like a tourist visa. Title 42 is sort of like a garden hose that has been bottled up. All the people that would normally come in at regular flows over the years have been sort of stymied and held up at the border. And of course, if they lift title 42, that surge now is going to be coming across the border and temporarily could pose problems for the Border Patrol. I think that people should be aware that there will be a surge at the border at the termination of Title 42 but part of that is because of the normal seasonal surge that always happens this time of year.” https://spectrumnews1.com/ma/worcester/politics/2022/04/12/these-democrats-side-with-republicans-to-keep-border-restrictions–

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Univision in “Arizona, Louisiana and Missouri Will Sue the Government for Canceling Border Restrictions.” Mr. Yale-Loehr warned that conservative states like Texas would “challenge the termination of Title 42 in court for encouraging more asylum claims.” He noted that “[f]ederal data shows that immigration officials are on track to make more than 200,000 apprehensions along the Mexican border in March, the highest monthly total since August,” and added that “the perception that lifting Title 42 will make it easier to apply for asylum could encourage more people to try to cross the U.S.-Mexico border. If the lawsuits are successful, Title 42 may continue for some time.” https://www.univision.com/noticias/inmigracion/arizona-luisiana-y-missouri-demandaran-cancelacion-titulo-42 (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 Global Update • October 2021

/in /by

In this issue:

1. SELF-EMPLOYMENT VISAS: AN OVERVIEW – This article provides an overview of self-employment visas in Italy and Turkey.

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

3. ITALY – The Italian government announced changes to the posted workers notification procedure.

4. RUSSIA – Air travel has resumed between Russia and numerous countries.

5. UNITED KINGDOM – The video call COVID-19 temporary adjusted right-to-work process had been due to end. However, the United Kingdom (UK) Home Office extended the process again to April 5, 2022.

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

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

Download:

ABIL Global Immigration Update – October 2021

1. SELF-EMPLOYMENT VISAS: AN OVERVIEW

This article provides an overview of self-employment visas in Italy and Turkey.

Italy

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

In general, to be eligible for self-employment, an applicant must:

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

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

Details:

Turkey

Those who wish to be self-employed in Turkey will not have a readily available visa category. Although there have been self-employed work permits historically for those who have had continual lawful residence in Turkey for several years, the Ministry of Labor no longer approves those applications. Also, although a Turquoise Card program was established and regulations promulgated that would allow for self-employment for several highly qualified individuals, this program has not yet been implemented.

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2. CANADA

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

On September 3, 2021, the government of Canada confirmed that it will proceed with its plan to ease border measures for fully vaccinated foreign travelers entering Canada. Based on the latest available data, scientific evidence, and the epidemiological situation both in Canada and internationally, the government intends to bring a number of changes into effect.

As of September 7, 2021, all fully vaccinated foreign nationals are permitted to enter Canada for discretionary (non-essential) travel. On August 9, 2021, the government opened Canada’s borders to fully vaccinated U.S. citizens and permanent residents.

Below are questions and answers summarizing these developments:

What changed on September 7, 2021?

Fully vaccinated travelers, from any country, can now travel to Canada for discretionary (non-essential) purposes and will not be subject to a 14-day quarantine requirement.

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 entering Canada.

What requirements are still in place?

For travelers who are not fully vaccinated, there are no changes to Canada’s current mandatory testing requirements, and such travelers still must complete a mandatory 14-day quarantine requirement, subject to limited exceptions.

Foreign nationals who are fully vaccinated continue to be required to have a negative pre-arrival COVID-19 molecular test result taken no more than 72 hours before the scheduled departure time of their last direct flight to Canada, or no more than 72 hours before their entry into Canada if arriving by land or water. Travelers who have already had COVID-19 and recovered can provide proof of a positive COVID-19 molecular test taken at least 14 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-one 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 need 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. Travelers should ensure that they are using the updated version of ArriveCAN (available as of September 7, 2021) and that they include unvaccinated children under 18 years and dependent adults in their ArriveCAN submission.

They must still present a suitable quarantine plan, and 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 and keeping a copy of their vaccine and test results, as well as a list of close contacts for 14 days after entry to Canada.

Details:

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3. ITALY

The Italian government announced changes to the posted workers notification procedure.

Changes to the Posted Workers Notification Procedure

Decree 170/2021 defines the standards and rules for the electronic transmission of communications in relation to long-term posted workers in Italy (established by Decree 122/2020 pursuant to EU Directive 2018/957). Decree 170/2021 set out the procedure for posting an extension of a posted workers notification after 12 months as follows:

  • The “motivated notification” for a long-term posting must be communicated to the Ministry of Labour and Social Policies within 5 days of exceeding 12 months’ duration of the posting;
  • The posted worker communication is valid as a motivated notification in the event that the duration of more than 12 months is already predetermined at the beginning of the posting.

New postings: The new rules apply to any new posting starting from the date of entry into force of the Decree.**

Long-term ongoing postings: The notification must be made within 30 days from the date of entry into force of the Decree. The 12-month period is calculated starting from July 30, 2020.

Decree n. 122/2020 set forth that :

  • The maximum period of posting is reduced to 12 months, extendable to 18 months in case of motivated notification to the Ministry of Labour. After 12 months (or 18 months), the posted worker must be subject, if more favorable, to the working conditions of the host state, including social security rules;
  • When a posted worker is replaced by another worker performing the same tasks at the same place, the 12-month period (or 18-month) period must be calculated by adding up the posting period of each worker. Thus, it is not possible to avoid the rule at the previous point by just substituting a worker with another one for the same task/location.

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4. RUSSIA

Air travel has resumed between Russia and numerous countries.

Foreign citizens entering the Russian Federation for the purpose of carrying out work activities must observe a self-isolation (quarantine) regime for 14 calendar days from the date of entry, regardless of the country of entry.

As of September 23, 2021, air travel was resumed with Iraq, Kenya, Slovakia, and Spain.

As of press time, air communications were open between Russia and following countries

 

United Kingdom

Tanzania (air communications suspended until November 1, 2021)

Turkey

Switzerland

Egypt

Maldives

United Arab Emirates

Republic of South Ossetia

Belarus

Kazakhstan

Kyrgyzstan

Republic Of Korea

Abkhazia

Cuba

Serbia

Japan

Seychelles

Ethiopia

Finland

Vietnam

India

Qatar

Greece

Singapore

Azerbaijan

Armenia

Germany

Venezuela

Syria

Tajikistan

Uzbekistan

Sri Lanka

Iceland

Malta

Mexico

Portugal

Saudi Arabia

Austria

Hungary

Lebanon

Luxembourg

Mauritius

Morocco

Croatia

Belgium

Bulgaria

Jordan

Ireland

Italy

Cyprus

China

Liechtenstein

North Macedonia

United States

Albania

France

Czech Republic

Bahrain

Dominican Republic

Moldova

Iraq

Spain

Kenya

Slovakia

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5. UNITED KINGDOM

The video call COVID-19 temporary adjusted right-to-work process had been due to end. However, the United Kingdom (UK) Home Office extended the process again to April 5, 2022.

The adjusted process has been well-received by employers. The extra time will allow the UK Home Office to expand standard online right-to-work checks to all employees, meaning physical document checks will no longer be necessary. Currently, standard online right-to-work checks can be used for anyone with a Biometric Residence Permit or digital immigration status but not, for example, British or Irish citizens who do not need permission to work in the UK.

Late Applicants to the EU Settlement Scheme

The Home Office updated its employers’ guide to right-to-work checks. The main change concerns where an employer is recruiting someone who has applied late to the European Union (EU) Settlement Scheme after June 30, 2021. Two things need to be checked for right-to-work purposes before the employment can begin. First, employers must receive digital or non-digital confirmation from the Home Office that the application has been submitted (Certificate of Application). Second, employers must use the Employer Checking Service and receive a Positive Verification Notice confirming the person has the right to work.

Details:

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6. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·

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

The latest published media releases include:

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

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7. ABIL Member / Firm News

Todd Fowler and Guillermo Weiner of Foster LLP provided human resources (HR) professionals with an overview of the latest guidance regarding employees who telecommute and the PERM process in a webinar on September 15, 2021. HR professionals gained insight into the movement in the Department of State’s Visa Bulletin and what it meant for their employees, including potential options to “downgrade” an existing petition to speed up the employee’s ability to file for the last step in the green card process, as well as important updates affecting the validity of medical exams filed with the green card application. Jeff Joseph of Joseph & Hall PC, Charles Kuck (https://www.abil.com/lawyers/lawyers-kuck.cfm) of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC are representing nearly 200 green card applicants in Chakrabarti v. USCIS in the U.S. District Court for the District of Columbia. Regarding U.S. Citizenship and Immigration Services’ argument that the suit was a backdoor tactic to change the employment-based visa program, Mr. Kuck said, “This is not about changing the program. The program is obviously poorly run, but … our suit does nothing more than maintain the status quo.” https://www.law360.com/articles/1426002/feds-say-workers-green-card-suit-is-congress-problem (registration required)

Klasko Immigration Law Partners, LLP, has released a new client alert: “Starting in November: Travel Bans Are Out; Covid Vaccine and Testing Requirements Are In.”

Mr. Kuck, Jeff Joseph of Kuck Baxter Immigration Partners LLC, and Greg Siskind of Siskind Susser PC represented plaintiffs in a recent case, Kinsley v. Blinken, in which a U.S. district court judge issued a decision on October 5, 2021, prohibiting the use of travel bans as a reason not to process or issue visas. Mr. Siskind and Mr. Kuck were quoted by the Times of India in “Good News for H-1B Visa Holders Stranded in India.” Mr. Siskind said, “This is a pretty important win for us because [the lawsuit] was specifically aimed at killing the illegal interpretation across the board and not just for the plaintiffs. This will also hopefully bar a President in the future from abusing this power.” Mr. Kuck said, “We are grateful that Judge Boasberg saw through the cascade of baseless legal theories put forward by the Department of State to finally and affirmatively rule that it is a violation of federal law to refuse to issue visas solely because a President has proclaimed an entry ban under the Immigration and Nationality Act 212(f). We call on the Department of State to now do away with its ridiculous and legally unnecessary national interest exemption program and get back to the business of visa issuance around the world regardless of those entry bans.”

Mr. Kuck was quoted by the Atlanta Journal-Constitution in “Rapper 21 Savage Briefly Jailed on Drug, Weapons Charges in DeKalb.” Mr. Kuck is representing the Grammy Award-winning musician 21 Savage, whose real name is Shéyaa Bin Abraham-Joseph, in his ongoing immigration proceedings. Mr. Kuck said, “These manufactured charges are yet another example of how our justice system, from ICE down to the local level, unjustly targets young Black men who seek to exercise their rights,” he said in a statement. “There is no legitimate basis for these charges nor for ICE’s continued antics, and we will fight until Mr. Joseph is justly vindicated.” An immigration hearing is scheduled for November 1, 2021. “As a minor, his family overstayed their work visas, and he, like almost 2 million other children, was left without legal status through no fault of his own,” Mr. Kuck said. https://www.ajc.com/news/rapper-21-savage-briefly-jailed-on-drug-weapons-charges-in-dekalb/KFDU3VLNGNGR3HRNYYWTCUJ7YQ/ Mr. Kuck was quoted by the San Francisco Chronicle in “Indians Waiting for Green Cards Hoped That a Decades-Long Backlog Might End This Year. Instead, Thousands of Slots May Disappear.” In response to a statement that U.S. Citizenship and Immigration Services “is reviewing all policies, operational procedures and options under the law that would allow for available green cards to either be issued before the end of the fiscal year or carried over into FY 2022,” Mr. Kuck said that was not true. Commenting on the queue of applicants who are at risk of losing their chance for a green card, he said, “It’s a psychological nightmare for the people waiting in line. It’s like walking up to a kiosk and the guy in front of you gets his doughnut and coffee and you get up to the kiosk and they pull the shade down and wheel the cart away.” He said the situation is “an affront by the immigration agency to its customers that paid extraordinary amounts of money for a timely service that they are apparently incapable of providing. The cavalier manner [in which] the acting deputy director dismissed the [concerns] in federal court on this issue is shocking. … There appears to have been no effort made to prioritize the use of this maybe once-in-a-generation number of visas to dig into a pressing backlog.” https://www.sfchronicle.com/bayarea/article/Indians-waiting-for-green-cards-hoped-that-a-16491324.php#photo-21517475 (subscription required)

Mr. Kuck was quoted by the Atlanta Journal-Constitution in “Kemp’s Immigration Policy Could Complicate Bid for Second Term.” Mr. Kuck said Governor Brian Kemp of Georgia was in search of a “shiny object” to distract from former President Trump’s ongoing attacks targeting the governor. “This is a reelection stunt. If he’s going to the border, he’s searching for a solution that does not exist,” Mr. Kuck said

Mr. Kuck was quoted by Atlanta Magazine in “Freedom University Wasn’t Meant to Last This Long.” He said the Board of Regents of Freedom University is “not answerable to the state legislature” and can change policies if it chooses, at least for Deferred Action for Childhood Arrivals recipients. He blamed a lack of progress on “constant finger-pointing between the legislature and the regents. ” ‘It’s their fault. It’s their fault. It’s their fault.’ That’s what’s extraordinarily frustrating about this. Nobody wants to take responsibility for depriving these kids of an education.” https://www.atlantamagazine.com/great-reads/freedom-university-wasnt-meant-to-last-this-long/

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) reported the following:·         Mr. Loughran discussed recent developments in immigration laws, policies, and procedures in the United States and how the 2020 elections affect immigration for the next four years in his presentation, “Immigration: What to Expect with the New Administration,” at the HR Houston Gulf Coast Symposium on August 3, 2021. https://hrhouston21.mapyourshow.com/8_0/sessions/session-details.cfm?scheduleid=82·         Avalyn Langemeier and Alex Vickery presented “An Introduction to Various Immigration Documents and Their Use or Significance.” They discussed the different types of immigration-related documents an employee may have, their significance, and how an HR professional and employee might interact with or use the documents at different stages in the nonimmigrant (temporary worker) or permanent residence process. They also touched on documents commonly presented during the Form I-9 employment eligibility verification process and how those documents should be initially recorded and later reverified. This discussion was presented at HR Houston’s Gulf Coast Symposium on August 4, 2021. https://hrhouston21.mapyourshow.com/8_0/sessions/session-details.cfm?scheduleid=82·         Helene Dang and Brenda Hicks addressed in their presentation, “Gaining Insight on Unspoken Nuances Regarding Immigration,” some common issues and educated HR professionals on certain nuances, such as government delays and practices, the role of and action items for the employer and employee, dual representation issues, and management of managers’ and employees’ expectations, including on timelines. This discussion was presented at HR Houston’s Gulf Coast Symposium on August 4, 2021. https://hrhouston21.mapyourshow.com/8_0/sessions/session-details.cfm?scheduleid=128·         Charles Foster joined Houston Mayor Sylvester Turner; Lyndon B. Johnson’s daughters, Lynda Bird Robb and Luci Baines Johnson; and members of the Lyndon B. Johnson Advisory Board in the unveiling of the LBJ monument in Houston, TX on August 6th, 2021. Development for the monument was initiated by Charles Foster, who served with David B. Jones as co-chairman of the Lyndon B. Johnson Monument Advisory Board, raising all funds for the direct costs from private donors. Mr. Loughran said, “President Johnson regularly ranks as one of the greatest presidents based on his extraordinary legislative achievements, including the three seminal civil rights bills that after 100 years achieved full legal rights for all Americans. Also included in President Johnson’s extraordinary portfolio is the Immigration Act of 1965, which opened legal immigration from all nations equally, based upon family reunification and needed job skills in the United States.” https://www.houstontx.gov/mayor/press/2021/lbj-monument-dedication.html?fbclid=IwAR31S5w7hCmUVvtqPXEpOH_u0ayYBtKjyCs20GaOCRBGntaXqCOaIquEbpYCyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm), Sung-Min Baik, and Kaitlyn Box co-authored a new blog posting: “Recent Trends in Requests for Evidence on I-140 Petitions.” http://blog.cyrusmehta.com/2021/09/recent-trends-in-requests-for-evidence-on-i-140-petitions.html

Mr. Mehta was quoted by Forbes in “Immigrants Hope Registry Saves Immigration Bill.” Mr. Mehta said, “Registry would help a whole swath of people, and the only criteria would be that the individual entered the U.S. by a particular date and has resided continuously from that date in the U.S. They would be able to apply for adjustment of status, and the government can impose supplemental or super-fees that would generate revenues for the United States. The person must also demonstrate good moral character and certain criminal, smuggling, narcotics law violations and some other grounds of inadmissibility apply. Waivers that exist under the INA [Immigration and Nationality Act] for these grounds of inadmissibility would apply even for an adjustment application under registry. Unlike the prior immigration provisions that were rejected by the parliamentarian, there is no need to establish that you came into the U.S. before 18 or are an essential worker or have an approved I-130 or I-140 petition. A qualified applicant needs to show that he or she entered the U.S. prior to the cutoff date, which is January 1, 1972, under current law [INA Section 249] and has resided continuously since that date.” Regarding moving the registry date closer to the present, he said, “I completely agree that the date should move to January 1, 2021, so that the new provision can help as many people as possible who have been waiting to either regularize their status or to get a green card. The fees that can be collected for each adjustment application under Section 249 will generate billions of dollars in revenues to the Treasury [depending on the fee set]. There are no quotas or caps for green cards under registry.” He was not certain that the parliamentarian would approve changing the registry date in a reconciliation bill, as has been proposed. “It is difficult to say whether the parliamentarian will accept this alternate proposal. She ought to this time because the [INA] is not being substantively changed and no new categories are being created under which people may file adjustment of status applications. All that is happening is that the cutoff date will move from January 1, 1972, to a more recent date.” https://www.forbes.com/sites/stuartanderson/2021/09/22/immigrants-hope-registry-saves-immigration-bill/?sh=b6dff6ae3b17

Mr. Mehta was quoted in several other media outlets on the registry proposal:

Mr. Mehta provided his views to several media outlets on the immigration provisions of a bill in the House of Representatives to be added to the reconciliation measure. “If enacted, these immigration provisions will dramatically change the immigration system and will provide relief to millions of people,” Mr. Mehta said:·         “Dreamers and Legal Immigration Changes Highlight New House Bill,” Forbes, https://www.forbes.com/sites/stuartanderson/2021/09/13/dreamers-and-legal-immigration-changes-highlight-new-house-bill/?sh=546acd3b69a9 ·         “Bill: Payment of a Super-Fee Will Enable Indians Caught in Decades-Long Backlog to Get a Green Card,” Times of India, https://timesofindia.indiatimes.com/world/us/bill-payment-of-a-super-fee-will-enable-indians-caught-in-decades-long-backlog-to-get-a-green-card/articleshow/86139144.cms ·         “Landmark Proposal in Budget Reconciliation Bill Could Grant Green Cards Immediately to Thousands Stuck in Backlog,” India-West, https://www.indiawest.com/news/global_indian/landmark-proposal-in-budget-reconciliation-bill-could-grant-green-cards-immediately-to-thousands-stuck-in/article_666bc822-165d-11ec-b89b-17fa22700888.html ·         “New Provisions Could Ease Green Card Process for Indians,” Economic Times of India, https://economictimes.indiatimes.com/nri/migrate/new-provisions-could-ease-green-card-process-for-indians/articleshow/86160640.cms Mr. Mehta and Isabel Rajabzadeh co-authored a blog posting: “Long Live Matter of Housseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas.” http://blog.cyrusmehta.com/2021/09/long-live-matter-of-housseinpour-making-the-case-for-dual-intent-in-all-nonimmigrant-visas.html Mr. Mehta and Kaitlyn Box co-authored a new blog post: “Reflections of Two Immigration Lawyers on the 20th Anniversary of the September 11 Attacks.” http://blog.cyrusmehta.com/2021/09/reflections-of-two-immigration-lawyers-on-the-20th-anniversary-of-the-september-11-attacks.html Wolfsdorf Rosenthal LLP has published several new blog posts: “Update on the EB-5 Regional Center Program,” “HR’s Crucial Role in Life Sciences IPOs,” “Tips for Travelers and Foreign Workers Seeking U.S. Visa Appointments,” “White House: All Foreign Nationals Flying to the U.S. Required to be Vaccinated – Some Regional COVID Travel Bans to be Waived,” “Family Reunited After Mandamus Lawsuit Against U.S. Consulate Proves Successful,” “Technology is Key for HR to Manage Fast Growth,” “U.S. Embassies & Consulates: September Update on Closures & Reopenings,” “California Law Would Prevent Transfers From Local Law Enforcement to ICE Custody,” and “Creating a Path to Citizenship: Update on President Biden’s Legislative Proposal for Immigration Reform.” https://wolfsdorf.com/news/ Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by The World in “Biden Administration Takes Step to ‘Bullet Proof” DACA.” Mr. Yale-Loehr said about the proposed DACA rule, “It’s a well-crafted, well-thought-out proposed rule.” He said the rule is “another way to bulletproof the program from litigation.” https://www.pri.org/stories/2021-10-01/biden-administration-takes-step-bulletproof-daca Mr. Yale-Loehr co-authored a FAQ about the new proposed DACA rule. https://www.presidentsalliance.org/wp-content/uploads/2021/09/2021-09-28-The-Proposed-DACA-Regulation-What-You-Need-to-Know.pdf Mr. Yale-Loehr was quoted by more than 100 newspapers regarding the new proposed DACA rule, including the New York Times, Wall Street Journal, Associated Press, Reuters, The Guardian, and Inside Higher Ed. Examples include:·         “Biden Administration Moves to Protect Undocumented Young Adults,” New York Times. Mr. Yale-Loehr said the 205-page rule “basically is an effort to bulletproof the DACA program from litigation challenges. While Democrats will try to find other ways to provide a path to a green card for Dreamers, the proposed rule could be a temporary safety net for Dreamers if legislation fails.” https://www.nytimes.com/2021/09/27/us/politics/daca-biden.html

  • “Codifying and Fortifying DACA,” Inside Higher Ed. Mr. Yale-Loehr said that both the district court in Texas and the Supreme Court “raised concerns about the automatic work permit aspect of the original DACA program, so by separating the two I think the Department of Homeland Security thinks they will have a stronger litigation strategy.” Overall, he described the rule as “an effort to bulletproof the existing program from litigation challenges.” Still, even if this rule is finalized, he said it would not head off all potential legal challenges. “This may take care of the procedural problems that Judge Hanen identified in his July ruling, but there are still the substantive challenges that Texas and other states will press. For example, they are sure to argue that only Congress can enact such a wide-ranging program.” https://www.insidehighered.com/news/2021/09/28/biden-administration-proposes-rule-daca

Mr. Yale-Loehr is supervising a group of about 25 Cornell Law School students who have volunteered to help Afghans at risk. In addition to filing 11 humanitarian parole applications, there are another 40-some in the pipeline.

Mr. Yale-Loehr was quoted in several media outlets about migrant issues:·         “This Obscure, Now Contentious Law is Being Used to Expel Thousands of Migrants,” National Geographic. Commenting on temporary protected status for Haitians, Mr. Yale-Loehr said, “The problem is that it only protects people who were already in the United States. People who are entering now are not eligible for TPS.” He also said, “The United States has to realize that more people are on the move in the world than ever before. We’re never going to be able to shut off our borders.” https://www.nationalgeographic.com/history/article/this-obscure-now-contentious-law-is-being-used-to-expel-thousands-of-migrants ·         “U.S. Diplomat Resigns and Denounces ‘Inhumane’ Refugee Deportations,” Correio Braziliense. Mr. Yale-Loehr said, “The myriad migration situations, including Afghans and people trying to cross the U.S.-Mexico border, make it more difficult for President Biden to advance his legislative agenda on immigration. Given the criticism leveled at the government, rightly or wrongly, it is much more difficult to persuade Congress to legalize several million immigrants. The White House is stuck in a political dilemma. President Joe Biden inherited the migration crises largely unleashed by Donald Trump. There is no easy or quick solution to these problems.” https://www.correiobraziliense.com.br/mundo/2021/09/4951309-diplomata-dos-eua-se-demite-e-denuncia-deportacoes-desumanas-de-refugiados.html (in Portuguese with English translation available)

Mr. Yale-Loehr was quoted by the Ritz Herald in “Proposed DACA Rule Offers Stability, as Doors Close in Congress.” Mr. Yale-Loehr said, “The proposed rule becomes more important now that the Senate parliamentarian has ruled that legalization provisions for DACA recipients can’t be included in the budget reconciliation bill. While Democrats will try to find other ways to provide a path to a green card for Dreamers, the proposed rule could be a temporary safety net if legislation fails. In July, a federal district judge in Texas ruled that the DACA program, started in 2012 by then-President Obama through executive action, violated procedural rules. The new proposed rule would correct that problem. People will have a chance to comment on the proposed rule after it is published in the Federal Register. Thus, it will still take several months for the Biden administration to finalize the rule. And even after a final rule, conservative states could challenge the new regulation on the merits. Still, the proposed rule shows that the Biden administration is committed to continuing the DACA program.” https://ritzherald.com/proposed-daca-rule-offers-stability-as-doors-close-in-congress/

Mr. Yale-Loehr was quoted by Univision in “Immigrants March in Washington, DC, to Ask Congress for a Path to Citizenship.” Mr. Yale-Loehr said that the problem with a Democratic plan to include immigration provisions in the $3.5 trillion budget reconciliation package lies in the Senate, where “Democratic Senators Joe Manchin (West Virginia) and Kyrsten Sinema (Arizona) have already signaled that they are uncomfortable with the total $3.5 trillion dollar bill. In short, to be successful, Democrats must pass a very thick immigration thread through a very small legislative needle.” https://www.univision.com/noticias/inmigracion/inmigrantes-marchan-washington-pedir-gobierno-y-congreso-legalizacion-de-indocumentados (in Spanish with English translation available)

Mr. Yale-Loehr was quoted by Univision in “Immigration Ombudsman Advises Dreamers to Renew DACA Protection on Time.” Mr. Yale-Loehr said that a new proposed rule “is about to be published to help about 700,000 Dreamers. The proposed rule could be published any day. The new regulation could put the Deferred Action for Childhood Arrivals (DACA) program on a better legal basis.” He noted that “the rule to be proposed becomes more important now that the Senate’s top adviser (parliamentarian) has ruled that legalization provisions for DACA recipients cannot be included in the budget reconciliation bill. The new rule on the way could be a temporary safety net for Dreamers if the legislation fails.” https://www.univision.com/noticias/inmigracion/documentos-dreamers-uscis-daca (in Spanish with English translation available)

Mr. Yale-Loehr was quoted by the Washington Times in “Democrats Maneuver Behind the Scenes to Secure Amnesty Provisions in Biden’s $3.5T Spending Bill.” “In sum, to succeed, Democrats must thread a very thick immigration string through a very small legislative needle,” he said. https://m.washingtontimes.com/news/2021/sep/14/democrats-maneuver-behind-the-scenes-to-secure-amn/

Mr. Yale-Loehr was quoted by Radio Free Asia in “US Visa Extension to Offer 18-Month Work Permit to ‘Eligible’ Hongkongers.” Referring to President Biden’s memorandum issued August 5, 2021, allowing Deferred Enforced Departure (DED) for “certain Hong Kong residents,” along with the right to work for 18 months, Mr. Yale-Loehr said the move was a good first step but that more is needed: “There are many things that could be done to help Hongkongers in the U.S. First, the president can extend the initial 18-month period. Second, Congress can pass a law giving them the avenue to obtain green cards in the United States.” He added that a similar law was passed to aid Chinese students and former members of the 1989 pro-democracy movement at Beijing’s Tiananmen Square and elsewhere in China. https://www.rfa.org/english/news/china/visa-09032021124035.html

Mr. Yale-Loehr was quoted by Univision in “How the Terrorist Attacks of September 11, 2001 Brought Down Immigration Reform.” Mr. Yale-Loehr said, “In 2001 President George Bush seemed ready to push for comprehensive immigration reform in Congress. The 9/11 terrorist attacks changed all that. Suddenly, instead of thinking of immigrants in a positive light, Americans perceived them as threats to national security. For that reason, when Congress created DHS in 2003, it moved the immigration office to that new ministry. At some point the legislature will have to fix our broken immigration system. However, given the current political fractures, it is possible that this will not happen soon.” https://www.univision.com/noticias/inmigracion/9-11-atentados-reforma-migratoria (Spanish, with English translation available)

Mr. Yale-Loehr and a Cornell law student compiled a resource list for Afghans at risk, which includes links to many organizations that are assisting Afghans in a variety of ways. https://docs.google.com/document/d/14aHqVbqO2ivtqA8Wl05Lvb0IfaCR1TkN8CDPqLDjuEc/edit

Mr. Yale-Loehr was mentioned by Law360 in “Feds Want DACA Appeal Paused Until New Rule Is Finalized.” The publication noted that Mr. Yale-Loehr previously said the rule is likely to receive a substantial number of public comments and that it could be more than six months before a final rule is issued. https://www.law360.com/appellate/articles/1428343/feds-want-daca-appeal-paused-until-new-rule-is-finalized (registration required)

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ABIL Immigration Insider • May 2, 2021

/in /by

In this issue:

1. President Biden Suspends Entry of Noncitizens/Non-LPRs Traveling From India; U.S. Mission in India Announces Limits on Visa Services – President Biden has issued a proclamation suspending the entry of non-U.S. citizens who were physically present within India during the 14-day period preceding their entry or attempted entry into the United States, with some exceptions. The proclamation takes effect May 4, 2021.

2. State Dept. Announces Global National Interest Exceptions to COVID-19 Travel Restrictions – Students seeking to start studies in the fall, certain academics, journalists, and individuals who provide critical infrastructure support in countries affected by a geographic COVID-19 restriction may now qualify for a national interest exception.

3. Supreme Court Rules in Favor of Relief for Long-Term Noncitizen U.S. Resident Removed From United States – The U.S. Supreme Court ruled on April 29, 2021, that “[n]onpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years.”

4. USCIS Reverses Trump Policy, Instructs Adjudicators to Resume Granting Deference to Prior Determinations in Petition Validity Extension Requests – Effective immediately, U.S. Citizenship and Immigration Services updated its policy guidance to generally restore its 2004 instructions directing officers to defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition.

5. State Dept. Announces Tiered Immigrant Visa Prioritization – On April 30, 2021, the Department of State announced a tiered prioritization approach to “triage” immigrant visa applications in light of reduced operating capacity as a result of the COVID-19 pandemic.

6. SSA Ends “No-Match” Letters – The Social Security Administration has ended the practice of sending employers “no-match” letters, called Employer Correction Request Notices.

7. DHS to Make Additional 22,000 Temporary Non-Agricultural Worker Visas Available – In light of increased labor demands, the Department of Homeland Security announced a supplemental increase of 22,000 visas this fiscal year for the H-2B Temporary Non-Agricultural Worker program. DHS said the additional visas will be made available in the “coming months” via a temporary final rule.

8. President Biden Orders CBP, ICE to Change Terminology – According to reports, under orders of the Biden administration, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement issued memoranda to their employees to stop using certain terms (e.g., “illegal alien”) and replace them with others.

9. DHS Provides Relief for Venezuelan and Syrian F-1 Students – The Department of Homeland Security has suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Venezuela or Syria.

10. DHS Rescinds Civil Penalties for Failure to Depart – A DHS statement said the fines “were not effective and had not meaningfully advanced the interests of the agency.”

11. State Dept. Issues Final Rule Changing Certifying Authority for Graduate Medical Education – Effective May 19, 2021, the Department of State is changing the certification authority for noncitizen physicians from the American Board of Medical Specialties (ABMS) to the Accreditation Council for Graduate Medical Education (ACGME).

12. State Dept. Updates Travel Advisories Due to Ongoing Pandemic – The Department is warning travelers against going to “approximately 80% of countries worldwide.”

13. DHS Corrects Deadline for Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies – The correction notice says comments are due May 19, 2021.

14. President Biden Will Raise Refugee Cap Following Backlash – President Biden plans to raise the cap on refugees for FY 2021 by May 15, 2021. The announcement followed a backlash after he announced originally that refugee admissions this fiscal year would be kept at 15,000.

15. President Biden Picks Nominees for USCIS, CBP – President Biden has chosen Ur Jaddou to lead U.S. Citizenship and Immigration Services and Chris Magnus to lead U.S. Customs and Border Protection.

16. F-1 Students Seeking OPT Can Now File Form I-765 Online – USCIS announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of several categories.

17. State Dept. Releases FAQ on Immigrant Visa Backlog and Consular Processing – The Department said it is committed to decreasing the backlog by “prioritizing certain visas, creating efficiencies in the visa process, and utilizing all available resources until our task is accomplished.”

18. DHS Seeks Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies – DHS seeks comments from the public on how U.S. Citizenship and Immigration Services can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits.

19. State Dept. Updates Visa Services Guidance, Policy on National Interest Exceptions for Regional COVID Proclamations – The Department of State recently released several updates.

20. Attorneys, AILA Sue State Dept. for Unlawfully Refusing to Issue Visas Due to Certain Travel Bans – Attorneys Jeff Joseph of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, along with the American Immigration Lawyers Association, filed a complaint on behalf of scores of plaintiffs against the Department of State and Secretary Antony Blinken, alleging that the agency has unlawfully relied on certain travel bans in refusing to issue visas.

21. OFLC Announces New Application for Prevailing Wage Determination – The Department of Labor’s Office of Foreign Labor Certification revised its Form ETA-9141, Application for Prevailing Wage Determination, for use beginning May 3, 2021.

22. CBP Reminds Carriers of LPR Boarding Policy – U.S. Customs and Border Protection issued guidance on March 5, 2021, for its Carrier Liaison Program on the current policy for boarding of lawful permanent residents (LPRs).

23. Border Czar to Leave Biden Administration; Vice President to Lead Efforts with Mexico and Northern Triangle Countries – Roberta Jacobson, whom President Biden appointed as Special Assistant to the President and Coordinator for the Southwest Border, plans to leave the position at the end of April, as the number of migrants attempting to cross the border is surging.

24. ABIL Global: Canada – This article discusses the demise of the Owner Operator labour market impact assessment, and what options remain for entrepreneurs hoping to come to Canada.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – May 2021

1. President Biden Suspends Entry of Noncitizens/Non-LPRs Traveling From India; U.S. Mission in India Announces Limits on Visa Services

President Biden has issued a proclamation suspending the entry of non-U.S. citizens who were physically present within India during the 14-day period preceding their entry or attempted entry into the United States, with some exceptions. The proclamation takes effect May 4, 2021, and will remain in effect until terminated by the President.

The proclamation states that India “is experiencing widespread, ongoing person-to-person transmission of the virus” that causes COVID-19 and its variants. The proclamation cites the Centers for Disease Control and Prevention, which has concluded that proactive measures are required to protect U.S. “public health from travelers entering the United States from that jurisdiction.”

The ban on entry does not apply to U.S. citizens and lawful permanent residents (LPRs), noncitizen nationals of the United States, noncitizen spouses of U.S. citizens or LPRs, noncitizen members of the U.S. armed forces, noncitizens whose entry is in the national interest; noncitizens traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the coronavirus, and several other categories.

The White House has alerted U.S. airlines and Congress. Also, the U.S. embassy and consulates in India announced significant temporary limitations on visa and other services.

Details:

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2. State Dept. Announces Global National Interest Exceptions to COVID-19 Travel Restrictions

On April 27, 2021, the Department of State (DOS) announced national interest exceptions to all regional travel restrictions currently in effect as a result of the COVID-19 pandemic.

DOS said that students seeking to start studies in the fall, certain academics, journalists, and individuals who provide critical infrastructure support in countries affected by a geographic COVID-19 restriction may now qualify for a national interest exception. This includes qualified applicants who have been in Brazil, China, Iran, or South Africa.

DOS also said that the pandemic “continues to limit the number of visas our embassies and consulates abroad are able to process,” and that visa applicants should check the website of their nearest U.S. embassy or consulate for the latest information about visa appointment availability.

Details:

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3. Supreme Court Rules in Favor of Relief for Long-Term Noncitizen U.S. Resident Removed From United States

The U.S. Supreme Court ruled on April 29, 2021, that “[n]onpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years.”

The Court noted that the period of continuous presence is deemed to end when the individual is served a notice to appear in a removal proceeding. This principle is called the “stop-time rule.” In this case, the government ordered the removal of petitioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document providing Mr. Niz-Chavez with the time and place of his hearing. The government contended that because the two documents collectively specified all statutorily required information for a notice to appear, Mr. Niz-Chavez’s continuous presence in the United States stopped when he was served with the second document. The Court disagreed, holding that a notice to appear sufficient to trigger the stop-time rule “is a single document containing all the information about an individual’s removal hearing.”

Details:

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4. USCIS Reverses Trump Policy, Instructs Adjudicators to Resume Granting Deference to Prior Determinations in Petition Validity Extension Requests

Effective immediately, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance on April 27, 2021, to generally restore its 2004 instructions directing officers to defer to prior determinations of eligibility when adjudicating petition extensions involving the same parties and facts as the initial petition. USCIS had rescinded the 2004 guidance in 2017.

The updated policy clarifies that USCIS will once again give deference unless there was a material error, material change in circumstances or eligibility, or new material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility. The updated policy also affirms that USCIS “considers, but does not defer to, previous eligibility determinations on petitions or applications made by other U.S. government agencies,” and that “officers make determinations on the evidence of record in the petition or application under adjudication.”

Details:

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5. State Dept. Announces Tiered Immigrant Visa Prioritization

On April 30, 2021, the Department of State (DOS) announced a tiered prioritization approach to “triage” immigrant visa applications in light of reduced operating capacity as a result of the COVID-19 pandemic.

The main categories of immigrant visas in priority order are:

  • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)
  • Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
  • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
  • Tier Four: All other immigrant visas, including employment preference and diversity visas

Details:

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6. SSA Ends “No-Match” Letters

According to reports, the Social Security Administration (SSA) has ended the practice of sending employers “no-match” letters, called Employer Correction Request Notices. SSA said it will instead work to make it “better, easier and more convenient” for employers to report and correct wages electronically. The letters, which inform employers when W-2 information doesn’t match SSA’s records, were discontinued in 2012 but resurrected in March 2019.

Advocates had asked the agency to eliminate the letters, which they said caused problems such as workers losing their jobs due to mistakes in the database.

Details:

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7. DHS to Make Additional 22,000 Temporary Non-Agricultural Worker Visas Available

In light of increased labor demands, the Department of Homeland Security (DHS) announced a supplemental increase of 22,000 visas this fiscal year for the H-2B Temporary Non-Agricultural Worker program. DHS said the additional visas will be made available in the “coming months” via a temporary final rule. Six thousand of these visas will be reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala, DHS said.

The additional visas will only be made available to employers that attest that, if they do not receive workers under the cap increase, they are likely to suffer irreparable harm, DHS said. Additionally, the temporary final rule “will allow employers to immediately hire H-2B workers who are already present in the United States without waiting for approval of the new petition. This portability provision is a critical safeguard that protects both U.S. and H-2B workers, while also providing flexibilities to employers during a time when travel remains challenging,” the agency said. The supplemental increase “is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years.”

Details:

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8. President Biden Orders CBP, ICE to Change Terminology

According to reports, under orders of the Biden administration, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement issued memoranda to their employees to stop using certain terms and replace them with others.

Examples include:

  • “alien”—use “noncitizen” or “migrant”
  • “alienage—use “noncitizenship”
  • “illegal alien”—use “undocumented noncitizen,” “undocumented individual,” or “migrant”
  • “unaccompanied alien children”—use “noncitizen unaccompanied children”
  • “assimilation”— use “integration” or “civic integration”
  • “immigrant assimilation”— use “immigrant integration”

Details:

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9. DHS Provides Relief for Venezuelan and Syrian F-1 Students

The Department of Homeland Security (DHS) has suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Venezuela or Syria.

DHS said it took this action for Venezuelan students who are experiencing severe economic hardship as a direct result of the current humanitarian crisis in Venezuela, and for Syrian students who are experiencing severe economic hardship as a direct result of the civil unrest in Syria since March 2011

DHS said that affected Venezuelan and Syrian lawful F-1 nonimmigrant students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain F-1 status.

DHS will deem an F-1 nonimmigrant student who receives employment authorization by means of the notice to be engaged in a “full course of study” for the duration of the employment authorization if the student satisfies the minimum course load requirement as described in the notices, which will remain effective for Venezuelan students until September 9, 2022, and for Syrian students until September 30, 2022.

Details:

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10. DHS Rescinds Civil Penalties for Failure to Depart

The Department of Homeland Security (DHS) announced on April 23, 2021, that U.S. Immigration and Customs Enforcement (ICE) has rescinded two orders related to the collection of civil financial penalties for noncitizens who fail to depart the United States.

A DHS statement said the fines “were not effective and had not meaningfully advanced the interests of the agency.” ICE intends to work with the Department of the Treasury to cancel the existing debts of those who had been fined, DHS said. “There is no indication that these penalties promoted compliance with noncitizens’ departure obligations. We can enforce our immigration laws without resorting to ineffective and unnecessary punitive measures,” said DHS Secretary Alejandro Mayorkas.

The DHS statement said that this rescission “marks ICE’s latest move toward focusing its limited resources on those posing the greatest risk to national security and public safety.”

Details:

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11. State Dept. Issues Final Rule Changing Certifying Authority for Graduate Medical Education

Effective May 19, 2021, the Department of State is changing the certification authority for noncitizen physicians from the American Board of Medical Specialties (ABMS) to the Accreditation Council for Graduate Medical Education (ACGME).

The Department explained that ABMS no longer produces the publication, Marquis Who’s Who, referenced in 22 CFR Part 62. Furthermore, ABMS has confirmed that it is also no longer the appropriate organization to comment on programs of graduate medical education. The Department said it has confirmed that the Accreditation Council for Graduate Medical Education (ACGME) has responsibility to accredit and recognize institutions offering programs of graduate medical education, and the agency therefore is replacing the reference to the ABMS with the ACGME in 22 CFR § 62.27.

Details:

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12. State Dept. Updates Travel Advisories Due to Ongoing Pandemic

The Department of State expanded its travel advisories to warn U.S. citizens not to travel to many areas due to ongoing “unprecedented risks” posed by the COVID-19 pandemic. The Department is warning travelers against going to “approximately 80% of countries worldwide.”

Details:

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13. DHS Corrects Deadline for Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies

The Department of Homeland Security (DHS) issued a correction to its notice seeking comments from the public on how U.S. Citizenship and Immigration Services (USCIS) can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits. The notice had said comments were due April 19, 2021, but the correction says comments are due May 19, 2021.

DHS said the effort “will help DHS identify process improvements for USCIS, with benefits for state, local, and tribal governments, for businesses (including small businesses and startups), for educational institutions of all kinds, for nonprofits, and for individuals.”

The correction was scheduled to be published in the Federal Register on April 26, 2021. The original notice was published on April 19, 2021.

Details:

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14. President Biden Will Raise Refugee Cap Following Backlash

White House Press Secretary Jen Psaki said on April 16, 2021, that President Joe Biden plans to raise the cap on refugees for fiscal year 2021 by May 15, 2021. The announcement followed a backlash after plans were announced to keep the number of refugee admissions at 15,000, which contradicted earlier statements that the cap would be raised. According to reports, a senior administration official said the cap was lower than anticipated due to a combination of insufficient infrastructure to process refugees and issues related to the COVID-19 pandemic.

Previously, the Biden administration had said the FY 2021 cap would be 62,500 and the FY 2022 cap would be 125,000. It remains unclear how much the administration will raise the FY 2021 cap. The allocations announced earlier on April 16 included Africa (7,000), East Asia (1,000), Europe and Central Asia (1,500), Latin America and the Caribbean (3,000), Near East and South Asia (1,500), and an unallocated reserve of 1,000 to be used “where the need for additional admissions arises and to transfer unused allocations from a particular category to one or more other categories” if needed.

A White House statement also said that persons in the following countries “may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence”: Cuba; Eurasia and the Baltics; Iraq; Honduras, Guatemala, and El Salvador; and in special circumstances, “persons identified by a United States Embassy in any location or initially referred to the Federal Government by a designated non-governmental organization.”

Ms. Psaki indicated that flights from key regions where refugees are located could begin “within days.”

Details:

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15. President Biden Picks Nominees for USCIS, CBP

President Joe Biden has chosen Ur Jaddou to lead U.S. Citizenship and Immigration Services (USCIS) and Chris Magnus to lead U.S. Customs and Border Protection (CBP), according to reports. Below are biographical highlights.

Ur Jaddou, USCIS nominee. A White House statement notes that Ms. Jaddou has two decades of experience in immigration law, policy, and administration. Most recently, she was Director of DHS Watch, a project of America’s Voice. She is an adjunct professor of law at American University’s Washington College of Law, and counsel at Potomac Law Group, PLLC. From June 2014 to January 2017, she was Chief Counsel for USCIS. She also served as Chief Counsel to the House of Representatives’ Subcommittee on Immigration, and as Deputy Assistant Secretary for Regional, Global and Functional Affairs in the Bureau of Legislative Affairs at the Department of State. Ms. Jaddou is a daughter of immigrants from Mexico (mother) and Iraq (father), and was born in California. She earned bachelor’s and master’s degrees from Stanford University and a law degree from UCLA School of Law.

 

 

Chris Magnus, CBP nominee. The White House statement notes that Mr. Magnus is Police Chief in Tucson, Arizona. He has a long career in public safety, including with the Lansing, Michigan, police department and serving as Police Chief in Fargo, North Dakota; Richmond, California; and Tucson, Arizona. In those roles, Mr. Magnus focused on relationship-building between the police and community, implementing evidence-based best practices, promoting reform, and police accountability. Because of Tucson’s proximity to the U.S.-Mexico border, Mr. Magnus has “extensive experience in addressing immigration issues,” the White House said. He earned bachelor’s and master’s degrees from Michigan State University and attended the Senior Executives in State and Local Government program at Harvard University’s Kennedy School of Government.

Details:

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16. F-1 Students Seeking OPT Can Now File Form I-765 Online

U.S. Citizenship and Immigration Services (USCIS) announced on April 12, 2021, that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:

  • (c)(3)(A), Pre-Completion OPT
  • (c)(3)(B), Post-Completion OPT
  • (c)(3)(C), 24-Month Extension of OPT for science, technology, engineering, and mathematics (STEM) students

USCIS emphasized that the option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT, noting that “[i]f an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.”

To submit a form online, an individual must first create a USCIS online account at myaccount.uscis.gov. The free account allows people to submit forms, pay fees, track the status of their case, communicate with USCIS through a secure inbox, and respond to requests for additional evidence. USCIS continues to accept the latest paper versions of forms by mail.

Details:

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17. State Dept. Releases FAQ on Immigrant Visa Backlog and Consular Processing

On April 13, 2021, the Department of State released frequently asked questions (FAQ) on the immigrant visa backlog and consular processing. The FAQ notes that the immigrant visa interview backlog has developed “because of limitations in staffing and other COVID-related operational constraints preventing us from processing the same volume of applicants as pre-pandemic.” In addition, the FAQ cites previous presidential proclamations that “restricted visa processing for many immigrants for nearly a year.” The Department said it would take time to process the cases affected by these travel restrictions.

The Department said it is committed to decreasing the backlog by “prioritizing certain visas, creating efficiencies in the visa process, and utilizing all available resources until our task is accomplished.” Applicants should check the website of their nearest U.S. embassy or consulate for updates on currently available visa services, the FAQ states. Virtual interviews are not available because current regulations “require all immigrant visa applicants to appear in person before a consular officer,” the FAQ states.

Details:

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18. DHS Seeks Comments on How USCIS Can Reduce Barriers/Burdens in Regulations and Policies

The Department of Homeland Security (DHS) seeks comments from the public on how U.S. Citizenship and Immigration Services (USCIS) can reduce administrative and other barriers and burdens within its regulations and policies, including those that prevent foreign citizens from easily obtaining access to immigration services and benefits.

This effort “will help DHS identify process improvements for USCIS, with benefits for state, local, and tribal governments, for businesses (including small businesses and startups), for educational institutions of all kinds, for nonprofits, and for individuals,” the request states.

The request is scheduled to be published in the Federal Register on April 19, 2021.

Details:

  • Advance notice of DHS request,

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19. State Dept. Updates Visa Services Guidance, Policy on National Interest Exceptions for Regional COVID Proclamations

The Department of State recently released several updates on visa services and national interest exception policy for regional COVID proclamations:

Visa Services Guidance

Referring to continued restrictions due to the COVID-19 pandemic worldwide, the Department announced on April 6, 2021, that U.S. embassies and consulates that process nonimmigrant visa applications “are prioritizing travelers with urgent needs, foreign diplomats, mission-critical categories of travelers (such as those coming to assist with the U.S. response to the COVID-19 pandemic, and workers who are essential to the American food supply), followed by students, exchange visitors, and some temporary employment visas.”

With respect to visa services, for consular sections that have the capacity, “the processing of immigrant and [fiancé(e)] visas, particularly for immediate relatives and other family-sponsored applicants, is our highest priority. U.S. Embassies and Consulates are also prioritizing the processing of immigrant visa cases previously refused under the rescinded Presidential Proclamations 9645 and 9983,” the Department said.

The Department noted that as a result of the pandemic, appointment capacity continues to be reduced, which “has created a significant backlog of both immigrant and nonimmigrant visa applicants awaiting a visa interview.” The Department said it is working to reduce the backlog.

National Interest Exceptions

The Department announced on April 8, 2021, that the travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of approving exceptions under the “geographic” COVID Presidential Proclamations (9984, 9992, and 10143).

The Department noted that these proclamations “restrict the entry of individuals physically present, within the 14-day period prior to their attempted entry into the United States, in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Federative Republic of Brazil, or Republic of South Africa.”

Details:

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20. Attorneys, AILA Sue State Dept. for Unlawfully Refusing to Issue Visas Due to Certain Travel Bans

Attorneys Jeff Joseph of Joseph and Hall PC, Charles Kuck of Kuck Baxter Immigration LLC, and Greg Siskind of Siskind Susser PC, along with the American Immigration Lawyers Association (AILA), filed a complaint on April 7, 2021, on behalf of scores of plaintiffs against the Department of State and Secretary Antony Blinken, alleging that the agency has unlawfully relied on certain travel bans in refusing to issue visas.

Specifically, the travel bans relate to suspensions of entry that apply to individuals who were physically present in Iran, China, Brazil, South Africa, the Republic of Ireland, the United Kingdom, and the Schengen area of Europe during the 14 days before seeking entry. The complaint states that these regional bans based on presence allow for entry after the individual has remained outside a designated country for 14 days, but that the defendants have refused to issue visas that would allow the plaintiffs to quarantine in a third country for 14 days before seeking entry.

Details:

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21. OFLC Announces New Application for Prevailing Wage Determination

The Department of Labor’s Office of Foreign Labor Certification (OFLC) revised its Form ETA-9141, Application for Prevailing Wage Determination, for use beginning May 3, 2021.

As of 8 a.m. on May 3, 2021, OFLC will only accept prevailing wage applications submitted using the new form. OFLC will reject, without further review, prevailing wage paper applications submitted using the current version of the form. A stakeholder webinar will be held on April 27, 2021, at 2 p.m. ET (2 hours).

Details:

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22. CBP Reminds Carriers of LPR Boarding Policy

U.S. Customs and Border Protection issued guidance on March 5, 2021, for its Carrier Liaison Program on the current policy for boarding of lawful permanent residents (LPRs):

Unexpired Valid Permanent Resident Card

  • Passengers with a valid, unexpired Permanent Resident Card (PRC or “green card”) may be boarded without any additional documentation.

Re-Entry Permit (I-327): Valid and Unexpired

  • Passengers with valid, unexpired re-entry permit are permitted to board without additional documentation.
  • The document must be the original re-entry permit. Copies are not accepted.

Expired Permanent Resident Cards: Ten-year validity

  • Lawful permanent residents (LPRs) with an expired I-551 may be boarded without penalty, provided the card was issued with a 10-year expiration date.

Expired Permanent Resident Cards: Containing Extension Sticker/Form I-797

  • Starting in January 2021, the sticker that is currently issued to LPRs to extend the validity of their PRC (placed on the back of the card) has been discontinued.
  • The revised I-797 receipt notice, together with an applicant’s PRC, will serve as temporary evidence of lawful permanent resident status for 12 months from the expiration date on the front of the green card.
  • PRCs that contain the extension sticker will remain valid until the expiration date.
  • The document must be the original I-797 permit. Copies are not accepted.

Expired Conditional Resident: Two-year validity

  • A Conditional Resident with an expired PRC (with a two-year expiration date) may be boarded if also in possession of a Notice of Action (Form I-797).
  • The Notice of Action extends the validity of the card for a specified length of time, generally 18 months.
  • Do not board the traveler if they are not in possession of Form I-797.

SB-1 Visas: Valid and Unexpired

  • Travelers in possession of a valid, unexpired SB-1 visa in their passport may be boarded without additional documentation.

The guidance notes that “[a]irlines should not be determining admissibility of a [traveler] outside the parameters of the document requirements.

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23. Border Czar to Leave Biden Administration; Vice President to Lead Efforts with Mexico and Northern Triangle Countries

Roberta Jacobson, whom President Biden appointed as Special Assistant to the President and Coordinator for the Southwest Border, plans to leave the position at the end of April, as the number of migrants attempting to cross the border is surging. She had committed to serve for the first 100 days of the Biden administration, according to an April 9, 2021, statement from Jake Sullivan, National Security Advisor.

Ms. Jacobson, formerly U.S. Ambassador to Mexico, “launched our renewed efforts with the Northern Triangle nations of El Salvador, Guatemala, and Honduras,” and “underscored this Administration’s commitment to reenergizing the U.S. immigration system.” Ms. Jacobson had said the Biden administration “plans to approach U.S. companies about increasing investment in Mexico and Central America to try to reduce migration.”

President Biden appointed Vice President Kamala Harris to lead “efforts with Mexico and the Northern Triangle,” Mr. Sullivan said. He added that Vice President Harris will oversee “a whole-of-government approach supported by outstanding public servants across the interagency including Secretary of Homeland Security Alejandro Mayorkas and Secretary of Health and Human Services Xavier Becerra, who were tasked by the President at the beginning of the administration to rebuild our immigration system.” Vice President Harris is expected to use diplomacy in her efforts rather than being responsible for the border, according to reports.

Details:

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24. ABIL Global: Canada

This article discusses the demise of the Owner Operator labour market impact assessment, and what options remain for entrepreneurs hoping to come to Canada.

In Canada, the starting point to obtain a work permit as a foreign national is a labour market impact assessment (LMIA). This requires a Canadian company to demonstrate that they advertised the position and that Canadian citizens and permanent residents were given a reasonable opportunity to apply for the position. Until recently, one of the most popular exemptions from advertising to support an LMIA application was the Owner Operator category. Where a foreign national owned more than 50 percent of a Canadian company, no advertising was required, and the Canadian company merely had to establish that the impact of hiring the foreign national would have a neutral or positive impact on the Canadian labor market and that the job offer was genuine.

The Entrepreneur permanent residence category was eliminated approximately two decades ago. Since then, many of the provinces have designed entrepreneur programs, but these provincial programs typically require a minimum investment and creation of jobs in Canada and often take months to be approved. Accordingly, in the absence of a true entrepreneur program, the Owner Operator LMIA provided a path for many self-employed business entrepreneurs to initially come to Canada to work, gain Canadian experience working for a Canadian company, and then ultimately apply for permanent residence under the Express Entry path.

What options remain for entrepreneurs hoping to come to Canada and start a new business?

Recently, Immigration, Refugees and Citizenship Canada (IRCC) launched the Start-Up Visa Program. This program requires foreign nationals to secure financial backing from a designated angel fund or venture capital funds or the support of a business incubator. The Start-Up Visa Program has been underutilized, likely because entrepreneurs are not interested in sharing their business ideas or ownership in their future business.

There is also a C-11 work permit for Entrepreneurs /Self-Employed candidates, but it does not include a direct path to permanent residence. Since most successful candidates for permanent residence require “Canadian work experience,” and self-employed work is not considered “Canadian work experience” (Immigration and Refugee Protection Act), it is unlikely that C-11 work permit holders will qualify for permanent residence.

With the elimination of the Owner Operator LMIA and limitations with the Start-Up Visa, C-11 work permit, and provincial programs for entrepreneurs, Canada is missing out on the potential to attract entrepreneurs. Given that it is well-established that new immigrants are often risk-takers and therefore make good entrepreneurs, this could have a negative long-term impact on Canada’s immigration program and economy. This is particularly relevant in light of estimates of approximately a trillion dollars’ worth of small and medium-sized businesses in Canada that are owned by baby boomers who are set to retire within the next 10 years. So far there has been no indication IRCC plans to develop more policies and programs to create paths for entrepreneurs.

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New Publications and Items of Interest

COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

  • CBP:

Department of Labor:

  • Office of Foreign Labor Certification:

State Department: https://www.state.gov/coronavirus/

Justice Department

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

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) and William Stock (bio: https://www.abil.com/lawyers/lawyers-stock.cfm?c=US) were quoted by Forbes in “The State Department Can Act to Reduce Visa Delays.” She said, “To get an expedited interview, you have to first make a regular appointment, and then you need to explain what are the factors, such as dire business need or family issues. So far, I am seeing that mere inconvenience or business interruption without demonstrable and serious financial consequences won’t do it.” The article says that Mr. Stock shared a thread showing that a client’s interview in Paris for an O-1 visa was bumped four times. Two other appointments scheduled for July, one for an L-1B visa (intracompany transferee), were canceled. “The first new interview appointments in Paris appear to be in February 2022,” the article notes. https://www.forbes.com/sites/stuartanderson/2021/04/19/the-state-department-can-act-to-reduce-visa-delays/?sh=1fc601c95c26

Rami Fakhoury (bio: https://www.abil.com/lawyers/lawyers-fakhoury.cfm?c=US) and Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) will speak at a webinar, “Global Talent Opportunities: A Legal and Policy Forecast and Update on Hiring Global Talent,” to be held Monday, April 19, 2021, from 2:30 to 4 p.m. ET. https://www.eventbrite.com/e/webinar-global-talent-opportunities-registration-146927575333

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted by Bloomberg Law in ” ‘Legal Dreamers’ See Renewed Chance for Relief in Legislation.” Regarding the children of the H-1B specialty visa applicant population awaiting green cards who age out, he said, “If they start all over again they’ll have to wait another 50 years. It’s a hopeless situation for H-4 children of parents born in India.” https://news.bloomberglaw.com/daily-labor-report/legal-dreamers-see-renewed-chance-for-relief-in-legislation

Mr. Mehta co-authored several new blog post: “What Happens to a Lawful Permanent Resident Who Has Been Stranded for Over One Year Abroad and the Green Card Validity Has Expired?,” http://blog.cyrusmehta.com/2021/04/what-happens-to-a-lawful-permanent-resident-who-has-been-stranded-for-over-one-year-abroad-and-the-green-card-validity-has-expired.html, and “Coping With Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application.” http://blog.cyrusmehta.com/2021/04/coping-with-delays-facing-h-4-and-l-2-spouse-when-they-have-a-pending-adjustment-application-part-2.html

Mr. Mehta was quoted by the Times of India in “Green Card Holders Stuck in India Need to Prove U.S. Ties.” He said, “With respect to green card holders who have been outside for more than a year, they should first try to apply for the returning resident or SB-1 visa. On the ground level, obtaining an appointment at the U.S. Consulate during the pandemic can be challenging. Even pre-Covid, the U.S. consulates have not been very generous in issuing SB-1 visas.” He noted that “if the green card holder cannot obtain the SB-1 visa, and the green card date has not expired, they can still try to board a flight and assert that they have not abandoned their green card at the U.S. port of entry.” Mr. Mehta also said that U.S. courts “have provided a test regarding green card abandonment, which is quite generous. Even if the green card holder has been outside the U.S. for much longer than a year, the key question is whether they consistently harbored an intent to return to the U.S. and continued to maintain ties with the country. Under the law, the government has a very heavy burden to prove that the green card holder has abandoned that status. During Covid, a green card holder who has been away for more than a year still has a good chance of being allowed entry if this person otherwise kept ties with the U.S.”

Mr. Paparelli has authored several new blog posts: “Oops No More, USCIS,” https://www.nationofimmigrators.com/uscis/oops-no-more-uscis/, “What’s Up With USCIS?—An Oops, Yet Still A Promising Start,” https://www.nationofimmigrators.com/uscis/whats-up-with-uscis-an-oops-yet-still-a-promising-start/, and “Coping With Delays Facing H-4 and L-2 Spouses,” http://blog.cyrusmehta.com/2021/04/coping-with-delays-facing-h-4-and-l-2-spouses.html

Bernard Wolfsdorf will present “Australian Outback: Scorcher Topics in the World of EB-5” at the American Immigration Lawyers Association’s Asia-Pacific Chapter EB-5 Annual Conference on May 11, 2021. https://wolfsdorf.com/bernard-wolfsdorf-to-present-at-the-aila-asia-pacific-chapter-eb-5-annual-conference/

Wolfsdorf Rosenthal LLP has published several new blog posts: “Global Mobility Issues: Tips for Avoiding Delays at Ports of Entry,” “Immigration Update,” “Top Immigration Pain Points for Employees,” “I-829 Processing Times Have Run Amok,” “Updated Travel Advisory,” ” ‘Dreamers’ and Farmworker Bills Pass House; Fate in Senate Uncertain,” “Could EB-5 Green Cards Be Processed in 2 Years Without Expedites? Will I-526 EB-5 Petition Processing Dramatically Improve in Near Future?,” “Top Workforce Trends in the Global Life Sciences Industry in 2021,” and “Immigration Update.” https://wolfsdorf.com/news/

WR Immigration Partners Leslie Ditrani and Philip Curtis, and Of Counsel Lorie Lunn, were listed in Best Lawyers in New England. https://wolfsdorf.com/wr-immigration-in-best-lawyers-in-new-england/

WR Immigration will present at the WERC Spring Virtual Conference on a panel, “Reinventing Global Mobility Through Tech: Solutions for a Post-Pandemic World,” on May 24, 2021. https://wolfsdorf.com/wr-immigration-selected-to-present-at-2021-werc-spring-virtual-conference/

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Reuters in “U.S. Supreme Court Hands Victory to Immigrants Facing Deportation.” The article appeared in many news outlets. He said the ruling gives immigrants “a second chance to try to prove that they qualify for cancellation of removal and other forms of relief.” https://www.yahoo.com/news/u-supreme-court-hands-victory-154737133.html

Mr. Yale-Loehr was quoted by Univision in “Biden Changes His Tone on Immigration Issues, But the Underlying Crisis is the Same.” He said, “President Biden has done a lot on immigration in his first 100 days in office. Among other things, he sent a major immigration reform bill to Congress, reinstated the DACA program, reprioritized deportation policy to focus on serious offenders, ended the previous administration’s travel bans, and allowed families and unaccompanied children to enter the United States while they await their asylum hearings. Doing all of this in 100 days is extraordinary, especially given everything else he is dealing with, including stopping the Covid-19 pandemic, economic woes, climate change, and efforts to improve our aging infrastructure.” However, he noted that “much remains to be done. In particular, the surge in people trying to enter the United States is giving Republicans an easy talking point to say that President Biden is ‘soft’ on immigration. That may make it more difficult to persuade Congress to enact comprehensive immigration reform this year.” https://www.univision.com/noticias/inmigracion/primeros-100-dias-biden-y-sus-promesas-para-la-crisis-migratoria (Spanish, with English translation offered)

Mr. Yale-Loehr was quoted by Correio Braziliense in “Experts Analyze 100 Days of Biden and President’s Speech to Congress.” He said, “President Biden has done a lot in the first 100 days of his term. The government has helped many Americans get vaccinated against Covid-19. It also persuaded Congress to pass legislation to help people cope with the pandemic.” He also noted Biden’s suspension of the Trump-era ban on U.S. entry of people from Muslim countries, and said, “Biden also stated that unaccompanied children at the border should not be detained while seeking asylum. However, he failed to increase the number of refugees from other countries. It is worth remembering that Trump made more than 400 changes in immigration policy. It will take some time to undo these changes.” (Portuguese, with English translation offered)

Mr. Yale-Loehr authored an op-ed published in The Hill: “Biden Brings Hope for International Students.” The op-ed notes a positive change in attitude in the current administration toward international students but recommends certain actions to attract international students, provide predictability, and allow universities and employers to retain global talent. https://thehill.com/opinion/immigration/550110-biden-brings-hope-for-international-students

Mr. Yale-Loehr was quoted by Univision in “Are parents criminally responsible for sending their children alone to the southern border of the United States?” The article asks if a parent can be sued who pushes a child to leave his or her country. “The question has to do with tort law, not U.S. immigration law,” Mr. Yale-Loehr noted. “The question is whether parents can be sued for negligence by allowing their children to travel alone from their country of origin to the United States.” In practice, “these trials are very rare, for several reasons. First, the child (or someone who sues on behalf of the child) would have to sue. And it is unlikely that children are aware of the United States civil liability law. And they are probably not willing to sue their parents. Also, even if they wanted to sue, they could not pay a lawyer to represent them.” He also said that “even if a child wins a tort lawsuit, many parents would not have money to pay for the damages.” A second question was whether it is legal to allow a child to travel alone and cross the border alone. “Nothing in U.S. immigration law prevents this. Immigration law says that anyone who has a well-founded fear of persecution can apply for asylum. There is no minimum age requirement to apply for asylum at the border,” Mr. Yale-Loehr explained. https://www.univision.com/noticias/inmigracion/padres-principales-responsables-enviar-solos-hijos-frontera-estados-unidos [Spanish]

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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/visas/en/law-and-policy/bulletin.html

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ABIL Global Update • October 2020

/in /by

In this issue:

1. THREE THINGS THE CEO NEEDS TO KNOW ABOUT IMMIGRATION: AN OVERVIEW – This article provides an overview of things a company CEO should know about immigration in Canada and Italy.

2. ITALY – This article summarizes issues related to immigration in Italy during the COVID-19 pandemic.

3. PERU – Peru has extended its Sanitary Emergency decree on the COVID-19 public health emergency by 90 days from September 8, 2020, and has extended its State of National Emergency decree until September 30, 2020.

4. RUSSIA – This article provides updates on Russian COVID-19 policies and procedures related to immigration.

5. UNITED KINGDOM and Global Highlights – This article notes that the United Kingdom’s new immigration system starts January 1, 2021. The article also highlights key changes to immigration rules in global jurisdictions, including the European Union, Ireland, Belgium, Poland, Luxembourg, Singapore, Australia, the United States, Canada, and Barbados.

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

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

Download:

ABIL Global Immigration Update – October 2020

1. THREE THINGS THE CEO NEEDS TO KNOW ABOUT IMMIGRATION: AN OVERVIEW

THREE THINGS THE CEO NEEDS TO KNOW ABOUT IMMIGRATION: AN OVERVIEW

This article provides an overview of things a company CEO should know in Canada and Italy.

Canada

  1. Make immigration an integral part of your business strategy. For example, have an immigration specialist look into your mergers-and-acquisitions plans during due diligence, to avoid surprises after the transaction closes. Some work permits are not easily transferable to the new employer and you may need to petition afresh for the employees to join the new team. This may take months.
  2. Just because the work is unpaid in Canada doesn’t mean that you don’t require a work permit. Think of management consultants coming to advise your company, interns working during the summer, and certain technicians coming to service or repair your equipment.
  3. The question is not whether your company will be audited, but when it will be audited. Various administrations may perform compliance audits on companies that hire foreign workers. Being subject to an audit at some point is the rule, not the exception. Be prepared.

Italy

  1. Is there a company in Italy? Any work permit application must be filed by an Italian company, not only when the application is for hiring a foreign worker locally but also in case of temporary assignment.
  2. What requirements must the Italian company have? The company must be fully registered with the business register, active, and in good standing. It must also be compliant with all tax and social security payments. In addition, the work permit application must be filed in the name of one of its legal representatives who must be Italian or legally residing in Italy (it is possible to appoint a third party).
  3. Where is the Italian company/place of work located? Depending on the type of application, the Immigration Office that will process the application is determined by the worker’s place of work or company headquarters. Since different Immigration Offices throughout Italy may have different requirements and processing times, it is very important to check this point before proceeding.

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2. ITALY

This article summarizes issues related to immigration in Italy during the COVID-19 pandemic.

Updated Rules for Entry Into Italy

Starting September 22, 2020, travelers from some French regions (Auvergne-Rhône-Alpes, Corsica, Hauts-de-France, Ilȇ -de-France, New Aquitaine, Occitania, Provence-Alpes-Côte d’Azur) are subject to mandatory molecular/antigenic COVID-19 testing on arrival. This is also required for travelers from Croatia, Greece, Malta, and Spain.

Additionally, Serbia is no longer on the list of countries from which travel is banned, and travelers from Bulgaria are no longer required to quarantine upon arrival.

Also, since the beginning of September, entry into Italy is allowed for unmarried partners (who have a proven and stable relationship) of EU citizens and of non-EU citizens who are long-term residents in the country.

New Rules for Posted Workers

Italy has incorporated Directive 957/2018 (amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services) into national law with decree n. 122/2020. The decree was published in the Official Gazette on September 15, 2020, and entered into force September 30.

The directive’s main aim is to limit social and wage dumping and to strengthen equal treatment between “local” and posted workers, based on the principle that the posting companies are required to guarantee posted workers the same conditions as local workers.

The main changes include:

  • Increased equality of treatment of posted workers
  • The rules of the host member state apply to accommodation, travel expenses reimbursement, food and lodging of posted workers
  • Maximum period of posting is reduced from 24 to 12 months, extendable to 18 months. After 12 months the posted worker is subject to the work conditions of the host state, including social security rules
  • When a posted worker is replaced by another worker performing the same tasks at the same place, the 12-month (or 18-month) period is calculated by adding up the posting period of each worker

Easier Path for the Italian Investor Visa

The Italian Senate has just approved modifications to the law on the investor visa. To enter into force, these changes must be approved by the Chamber of Deputies.

Proposed modifications:

  • The application for the Italy Investor Visa Clearance (Nulla Osta) can be filed using a company controlled by the applicant
  • Investor permit holders are exempted from the Integration Agreement obligations, e.g., language test
  • Investor permit holders are no longer required to spend a minimum amount of time in Italy

If the changes are approved, the Italian immigrant investor program will become more attractive and will make moving to Italy easier for investors.

B-Day: Are You Ready for Brexit Final Date?

All United Kingdom (UK) citizens resident in Italy are advised to obtain the new Attestazione di Iscrizione Anagrafica, as per the latest government circular on residency registration. This is the document attesting UK citizens’ right to reside in Italy for a period longer than three months.

Arrangements between the UK and Italy have yet to be decided, and this declaration is intended to show that the UK citizen is protected by the Withdrawal Agreement (WA) even after the transition period.

The only certainty is that UK citizens who want their rights guaranteed by the WA will have to provide evidence of residence in Italy before December 31, 2021.

This means that whether you are a newly registered citizen or a long-term resident in Italy, you are strongly advised to obtain this specific Attestazione before the end of the transition period to make sure you are covered by the WA.

COVID-19 Travel Guidance—Online Self-Questionnaire

Can I enter Italy for tourism? Do I have to quarantine upon arrival? Is a coronavirus test required? I am traveling to Italy for work; am I exempted from the mandatory quarantine? The Italian government is constantly reviewing Italy’s coronavirus policy; as a result, many travelers are not sure what rules apply upon their intended travel date. The answers to these and many other questions can be found by filling out a questionnaire (link below).

Note that regional authorities in Italy may apply restrictions in addition to national rules. Also, the questionnaire has no legal value and it has been created for informational purposes. The results of the questionnaire do not guarantee entry into the country, as this decision is made by border control officers.

Details:

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3. PERU

Peru has extended its Sanitary Emergency decree on the COVID-19 public health emergency by 90 days from September 8, 2020, and has extended its State of National Emergency decree until September 30, 2020.

On August 28, 2020, due to the ongoing COVID-19 public health emergency, Peru extended its Sanitary Emergency decree once again from September 8, 2020, for 90 days. Peru also extended its State of National Emergency decree until September 30, 2020, for the same reason.

As part of the imposed “focused quarantine,” some or all provinces are undergoing restrictions such as limits on the movement of people only for the provision of and access to essential services, goods, and economic activities. Exempted activities include the provision of food supply services, health, medicine, financial services, restaurant service for home delivery, continuity of water services, sanitation, electricity, gas, fuels, telecommunications and related activities, cleaning and collection of solid waste, funeral services, freight and merchandise transport and related activities, and activities related to the resumption of economic activities.

Staff of the print, radio, or television press may transit during this period of mandatory social immobilization as long as they carry their personal work passes, journalistic credentials, and National ID for identification purposes. The authorization also applies to the mobile units that transport them for the fulfillment of their functions. Curfews are imposed in some areas.

During the State of National Emergency, the total closure of the Peruvian borders continues in force. International transport of passengers by land, air, sea, and river continues to be suspended except for humanitarian reasons.

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4. RUSSIA

This article provides updates on Russian COVID-19 policies and procedures related to immigration.

Measures regulating the status of foreign citizens and stateless persons in Russia in connection to the danger of further spread of the new coronavirus (COVID-19) allowing foreigners to stay in Russia until September 15, 2020 (provided the expiration date of their immigration documents was between March 15 and September 15) have now been extended until December 15, 2020.

This will continue to be applicable to the following types of immigration documents:

  • Visas (all types)
  • Address Registrations, temporary and permanent
  • Migration cards
  • TRP (Temporary Residence Permits)
  • PRP (Permanent Residence Permits)
  • Documents, confirming refugee status, status of “mandatory moved persons,” participants in the state program for relocation of compatriots living abroad)

According to the order, the validity of such documents is automatically extended for 275 days after the document expiration date.

Also, according to the amendments, foreign citizens who are currently in Russia can exit Russia and enter their native countries without the need to travel through third countries (those with which air communications have been restored and borders opened).

The order is not applicable to the following type of immigration documents, and holders of such documents and their employers must file for extensions in the standard manner:

  • HQS Work Permit
  • Standard Work Permit
  • Corporate Work Permit
  • Patent (if the patent expires between March 15 and December 15, it is possible to apply for renewal without needing to leave Russia)

For the same period (March 15 to December 15), the six-month period of permitted stay abroad is suspended for the following categories of foreign citizens and stateless persons:

  • Participants in the state program for relocation of compatriots living abroad
  • Persons having permanent residence permits
  • Persons having temporary residence permits

For the same period (March 15 to December 15), the period for voluntary exit from Russia is suspended for those persons in relation to whom the following decisions were made:

 

  • Administrative removal
  • Deportation
  • Hand-over to a foreign country on the basis of a readmission agreement

For the same period (March 15 to December 15), the following decisions will not be taken in relation to foreign citizens and stateless persons:

  • Undesirability of stay (permanent or temporary)
  • Administrative removal
  • Deportation
  • Hand-over to a foreign country on the basis of a readmission agreement
  • Annulment of refugee status, or status of mandatory removed persons
  • Annulment of previously issued visas, work permits, patents, temporary residence permits, permanent residence permits, and certificates of participants in the state program on relocation of compatriots living abroad

Citizens of the following countries can enter Russia, as well as foreign citizens who have permanent residence in these countries:

United Kingdom

Tanzania

Turkey

Switzerland

Egypt

Maldives

United Arab Emirates

Republic of South Ossetia

Belarus

Kazakhstan

Kyrgyzstan

Republic of Korea

Also, entry and exit is allowed for persons using all types of transport, provided entry and exit are aimed at:

  • Change of crew on sea and river vessels staying in Russian ports
  • Quality control of equipment produced by Russian companies and supplied according to contracts signed for atomic energy facilities situated abroad as well as according to international agreements, provided such persons are listed on special requests from State Corporation Rosatom to the Federal Security Service and the Internal Affairs Ministry
  • Certification of new aircraft and technical support of companies using aircraft produced in Russia, provided such persons are listed on special requests sent from the Ministry of Trade and Industry to the Federal Security Service and the Internal Affairs Ministry

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5. UNITED KINGDOM and Global Highlights

This article notes that the United Kingdom’s (UK) new immigration system starts January 1, 2021. The article also highlights key changes to immigration rules in global jurisdictions, including the European Union, Ireland, Belgium, Poland, Luxembourg, Singapore, Australia, the United States, Canada, and Barbados.

New Immigration System

The UK will have a new immigration system starting January 1, 2021.

The new immigration system will apply to both EU and non-EU citizens. EU citizens moving to the UK on or after January 1, 2021, will need a visa to be able to work. The same goes for other European Economic Area (EEA) nationals and Swiss nationals. This does not apply to Irish citizens. They will still be free to work in the UK without a visa.

Highlights of Key Changes to Immigration Rules in Global Jurisdictions

European Union (EU). The European Council has updated its list of countries whose residents should be allowed or denied entry into the EU Member States. Travel restrictions have also been lifted for highly skilled workers by many EU Member States as well as Schengen Area countries.

Ireland. All immigration permissions that expired between August 20 and September 20, 2020, are automatically extended for a further one-month period. The Department of Justice Registration Offices also temporarily closed again in light of the ongoing coronavirus outbreak.

Also, as of July 20, 2020, the renewal process for the Online Residence Card (IRP card) has been opened to all non-EEA nationals and their dependent families residing in Dublin.

Belgium. As of July 30, 2020, Belgium has implemented the revised EU Posted Worker Directive. This is expected to result in only minimal changes because most of the rules were already in place.

Poland. As of July 30, 2020, Poland has also implemented the revised EU Posted Worker Directive, making changes to its posted worker laws.

Luxembourg. The Luxembourg government has published information on what British nationals residing in Luxembourg must do before December 31, 2020 (end of the Brexit transition period) to maintain their right of residence and work in Luxembourg.

Singapore. The minimum qualifying monthly salary threshold for Employment Passes increased to SGD 4,500 as of September 1, 2020. As of October 1, 2020, there are stricter advertising requirements and job postings when carrying out the labor market test for employers wishing to employ foreign workers.

Australia. To expedite Temporary Skill Shortage visa application processing, the Australian government has introduced a new Priority Migration Skilled Occupation List for certain critical workers. Also, as of October 1, 2020, additional labor market testing requirements will be imposed for certain visa types.

United States. Starting October 2, 2020, higher fees are in place for employment-based applications and petitions and new application forms will be issued for L-1, H-1B, and other nonimmigrant petitions to reflect the new fees.

Also, U.S. Citizenship and Immigration Services has decided not to furlough its workforce by cutting agency spending instead. The cuts are said to increase processing times, backlogs, and waiting times.

Foreign students on F-1 and M-1 visas who are newly enrolled in courses will not be allowed to take all online-only courses and remain in the United States. They will not be issued visas and/or admitted to the United States during the fall 2020 semester.

Canada. From July 22, 2020, restrictions have been implemented on the Québec Experience Program (PEQ). The restrictions make it more difficult for foreign nationals such as temporary residents either working or studying in Québec, who are required to apply for permanent residence in the province.

Barbados. New Welcome Stamp Visas have been introduced to enable foreign nationals to reside and work remotely from Barbados. There is a requirement to show sufficient income for this visa.

Details:

“Global Immigration Update,” Kingsley Napley, https://www.kingsleynapley.co.uk/insights/news/kn-global-immigration-update-july-and-august-2020

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6. New Publications and Items of Interest

Mazzeschi Brexit HelpDesk. The Mazzeschi Brexit HelpDesk provides post-Brexit guidance and assistance for United Kingdom (UK) citizens moving to or living in Italy. Until December 31, 2020, UK citizens will be able to enjoy their EU free movement rights in all EU countries, and therefore can continue to live, work, and study in Italy as they did before January 31, 2020 (Transition Period). Italian law provides that British nationals, like any other EU nationals, who intend to stay in Italy for a period exceeding three months should register with the Anagrafe (Register Office) of the municipality where they live. The Brexit HelpDesk is open Monday to Friday from 9 am to 6 pm CEST at phone: +39 0577926921 or email: [email protected]. For more information, see https://www.mazzeschi.it/post-brexit-guide-for-uk-citizen-living-in-italy/.

Alliance of Business Immigration Lawyers: ·

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

The latest published media releases include:

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

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7. ABIL Member / Firm News

Dagmar Butte (bio: https://www.abil.com/lawyers/lawyers-butte.cfm?c=US) was quoted by the New York Times in “Immigrant ‘Dreamers’ in Search of a Job Are Being Turned Away. “Employers come to me saying, ‘I would love to hire this person but my worry is that I hire them, invest three or four months in training them and if Trump does away with the program then I have to hire and train a new person.’ That gets expensive and time-consuming. I tell them, ‘If you really like this person, this program is not dead yet. So you shouldn’t assume they will be unable to continue working for you. But if your reason for not hiring the person is a business reason, then that is a decision for you to make.” The article is at https://www.nytimes.com/2020/08/20/us/immigration-daca-dreamers-employers.html.

Barbara Caruso was quoted by the Toronto Star in “What is ‘Nearshoring’? Is it Good for Canada – Or Is Our Immigration System Just Bailing Out Silicon Valley?” Ms. Caruso said she worries that nearshoring could bring the integrity of Canada’s temporary foreign worker program into the spotlight the way “offshoring” did in 2013, when Royal Bank of Canada was criticized for laying off Canadian employees and outsourcing their jobs to foreign workers. She noted that currently, nearshoring is neither provided for nor prohibited under the program. “At a time when remote work is now the norm, there will be lots of foreign nationals wanting to come to Canada to work remotely for their foreign employers, and willing to pay Canadian taxes and spend their salaries in Canada. The government needs to develop a clear policy with respect to remote work situations, including nearshoring,” she said. The article is available by subscription at https://www.thestar.com/news/canada/2020/08/11/what-is-nearshoring-is-it-good-for-canada-or-is-our-immigration-system-just-bailing-out-silicon-valley.html.

Will Hummel, a partner at Garfinkel Immigration Law Firm, was profiled by Davidson College in “Compassionate Guide Through the Twists and Turns of Immigration Law.” https://www.davidson.edu/news/2020/09/01/compassionate-guide-through-twists-and-turns-immigration-law Jeff Joseph, Greg Siskind, and Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) are representing visa-seekers in Milligan et al. v. Pompeo et al. They argue that the Department of State has wrongly stopped processing and issuing fiancé(e) visas based on the fact that certain foreign nationals cannot travel to the United States during the COVID-19 pandemic, and request that the court resume K-1 visa processing since the Immigration and Nationality Act differentiates between entry and visa issuance, only allowing the President to suspend entry into the United States. Mr. Joseph said, “If we can make exceptions and process visas for agricultural workers, students, and other visa categories, we can certainly process visas for the intended husbands and wives of U.S. citizens.” The article is available by registering at https://www.law360.com/articles/1311558/us-citizens-say-state-dept-illegally-delaying-fianc-e-visas. Klasko Immigration Law Partners, LLP has released several podcasts. “The Latest on E-2 Visa with Citizenship-by-Investment” provides the latest updates to this creative solution that many foreign nationals have utilized since 2017. The investors are not just immigrating from China, but from many other countries as well. See . In “Who Can Travel to the U.S. Right Now?,” Michele Madera and William Stock answer these questions and discuss the latest news on immigration-related travel to the United States and the current litigation challenging a June 2020 presidential proclamation and related guidance issued in July 2020. See . “What is Legal Immigration?” In the first episode of two, H. Ronald Klasko, Anu Nair, and Drew Zeltner cover the pathways of legal immigration to the U.S., the hurdles legal immigrants are facing, and how they contribute to the growth of the U.S. economy. This two-part podcast is part of the series, “Statutes of Liberty.” See . Mr. Stock was quoted by Forbes in “Regulation to Restrict H-1B Visas Moves Toward Final Step.” He said, “I expect to see the regulation embody the legal theories on ’employer-employee relationship’ that we saw in the guidance memos that were enjoined by a court earlier this year, requiring employers to document non-speculative employment for the full duration of the visa requested for third-party placements.” He also said that all of the changes in the regulation “are likely to be resisted by employers as inconsistent with the statute and economically harmful. If allowed to go into effect, the regulation will continue the current trend of employers sending high-value technology work offshore because of policies from this administration that are keeping and pushing key personnel outside the United States.” https://www.forbes.com/sites/stuartanderson/2020/09/07/regulation-to-restrict-h-1b-visas-moves-toward-final-step/#6eacbe007e4b

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted by Courthouse News Service in “Immigration Advocates Challenge Visa Ban, Urge Judge to Curb Trump’s Power.” Commenting on the government’s position regarding a lawsuit challenging President Trump’s proclamations in April and June 2020 banning many nonimmigrants and immigrants from obtaining visas or green cards, Mr. Kuck said, “There are not even any findings here. There’s somebody’s opinion, with no factual basis in the record. That cannot be the basis to override the entire INA.” https://www.courthousenews.com/immigration-advocates-challenge-visa-ban-urge-judge-to-curb-trumps-power/amp/

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has authored or co-authored several new blog postings. “Downgrading From EB-2 to EB-3 Under the October 2020 Visa Bulletin” is at http://blog.cyrusmehta.com/2020/09/downgrading-from-eb-2-to-eb-3-under-the-october-2020-visa-bulletin.html. “In Honor of Justice Ginsburg: Disfavoring Piepowder Courts Against Permanent Residents in Vartelas v. Holder” is at . “The Future of Work and Visa Rules in the Age of COVID-19” is at http://blog.cyrusmehta.com/2020/09/the-future-of-work-and-visa-rules-in-the-age-of-covid-19.html.  “Gomez v. Trump: Welcome to the Brave New World of Made Up Law under 212(f)” is at http://blog.cyrusmehta.com/2020/09/gomez-v-trump-welcome-to-the-brave-new-world-of-made-up-law-under-ina-212f.html. “The Impossible Feat of Determining Who is an ‘Illegal Alien’ Under Trump’s Unconstitutional Census Executive Order” is at .Mr. Mehta has authored a FAQ on ethics during the COVID-19 pandemic, as part of an ongoing project. New FAQs will be added as new issues arise. https://www.aila.org/practice/ethics/ethics-resources/2016-2019/faqs-ethics-pandemic (available to AILA members)

Mr. Mehta was quoted by Law360 in “DHS Appointments Risk 1 ½ Years of Immigration Policy.” He spoke about the unlawful appointment of Chad Wolf at the Department of Homeland Security and the impact this could have on regulations signed by him. The article is available by registering at https://www.law360.com/articles/1301788/dhs-appointments-risk-1-years-of-immigration-policy.

Mr. Mehta’s tweet was cited by Outlook India in “Watching Trump Preside Over Naturalisation Ceremony Was Like Watching Fox Bless Henhouse: Hillary,” on the naturalization ceremony held during the Republican National Convention. He tweeted, “Trump and illegally appointed Wolf conduct a naturalisation ceremony during a political convention to hypocritically pander to immigrants they have otherwise banned, abused and caged.”

David Isaacson, of Cyrus D. Mehta & Partners, PLLC, has authored several new blog postings. “Elephants, Mouseholes, and Sickness: My Comment on the Latest Anti-Asylum Proposed Rule. Do You Have One Too?” is at . “Implementation of Safe Third Country Agreement Held to Violate Canadian Charter of Rights and Freedoms—So Why Will Prior U.S. Asylum Claimants Be Denied a Hearing at the Refugee Protection Division in Canada Even After This Takes Effect?” is at .

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) and Marketa Lindt (bio: https://www.abil.com/lawyers/lawyers-lindt.cfm?c=US) recently presented on National Interest Exemptions to Visa and Entry Bans. Mr. Paparelli’s presentation on “Getting Your Key Employees Into the U.S. Under the Exceptions to the Visa and Entry Bans and the National Interest Exemption” is available in PDF format at https://bit.ly/2Zws03U.Greg Siskind, of Siskind Susser, PC, was quoted by Law360 in “Lack of Oversight for USCIS Funding May Doom Budget Fix.” Mr. Siskind said he would have liked to see a bill to provide short-term relief to USCIS to help it avoid furloughs include mandated timelines for how quickly USCIS is required to start new premium processing services. He pointed to an instance two decades ago when the U.S. immigration agency in place at the time issued a policy limiting the physician national interest waiver program, which gave foreign-born doctors green cards to work in medically underserved areas, a year after Congress created the program. The agency was sued and was ultimately required to fully implement the program. “In theory, they’re incentivized to start expanding, but who knows,” Mr. Siskind said. The article is available by registering at https://bit.ly/3hHa4dQ.

Wolfsdorf Rosenthal LLP has published several new blog postings. “Court Extends Temporary Restraining Order in Case Challenging EAD Delays”; “Who Can File a Form I-485 Adjustment of Status in the U.S. Under EB-5?”; “DOL, DHS Enter Memorandum of Agreement to Share Info on Foreign Workers for Enforcement Purposes”; and “U.S. State Department Explains Exceptions to H-1B, H-2B, J-1, L-1A, and L-1B Labor Market Ban” are at https://wolfsdorf.com/blog/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted recently in several media outlets:·         USA Today, ” ‘You’re Not Wanted’: Trump’s Proposed College Student Visa Changes Worry International Students—Again.” Mr. Yale-Loehr said, “The overall tone of the proposed rules sends a chilling message to current and prospective international students that we are no longer a welcoming nation. It says we’re more focused on national security threats, and that we suspect they could be coming here to do harm rather than help the U.S. He said the proposed changes don’t necessarily come as a surprise: “This is part of a larger anti-immigrant trend coming from this administration.” He also noted that the SEVIS system is “cumbersome,” but it works: Universities are able to see which students are falling through the cracks. The proposed rule changes imply the existing system needs revamping, he said, “when colleges would tell you it’s working just fine.” https://www.usatoday.com/story/news/education/2020/09/26/trump-student-visa-rule-dhs-f-1-changes/3537182001/ ·         Voice of America, “Proposed U.S. Visa Changes Explained.” Mr. Yale-Loehr said the proposed rule states that international students currently in the United States would be able to remain under the pre-existing rules, not to exceed four years from the effective date of the final rule. He also said the rule could bar extensions for international students if the immigration agency decides that a visa holder is not making progress toward their degree. “The proposed rule would require most international students to finish their studies in four years, rather than however long it normally takes. For example, many PhD students normally take more than four years to get their degree,” he noted. https://www.voanews.com/usa/immigration/proposed-us-visa-changes-explained·         Inside Higher Ed, “Trump Administration Proposes Major Overhaul to Student Visa Rules.” Mr. Yale-Loehr said, “On the one hand, students and people advising international students and scholars in higher education should not panic—these are not immediate changes. On the other hand, if this rule does get finalized without any changes, it will be the biggest change in international student regulations in 20 years. Overall, the proposed rule sends a chilling message to prospective international students and makes the United States seem more unwelcoming—and this is in line with other things that the administration has done in other areas of immigration.” https://www.insidehighered.com/news/2020/09/25/trump-administration-proposes-major-overhaul-student-visa-rules ·         Cornell Daily Sun, “Cornell Law Professor Breaks Down ‘Broken’ Immigration System Under Trump Administration.” Almost 800 people tuned in recently to hear Mr. Yale-Loehr break down the current administration’s rising restrictions against immigration. The event, “Our Broken Immigration System: and How to Fix It,” discussed the workings of the United States immigration system and possible solutions to existing problems. https://cornellsun.com/2020/09/25/cornell-law-professor-breaks-down-broken-immigration-system-under-trump-administration/ ·         Univision, “El gobierno de Trump propone reducir el tiempo para pedir asilo de un año a solo 15 días” (“Trump Administration Proposes to Reduce the Time to Seek Asylum From One Year to Just 15 Days”). “This new proposed rule will radically restrict the ability of people fleeing persecution to obtain asylum in the United States,” Mr. Yale-Loehr warned. “The rule would also allow immigration judges to deny asylum applications without a hearing if they lack certain evidence. This would particularly harm applicants without a lawyer. This proposed rule is an anti-immigrant’s dream. It would gut the U.S. asylum system and ultimately very few people would be able to get it.” https://www.univision.com/noticias/inmigracion/el-gobierno-de-trump-propone-reducir-el-tiempo-para-pedir-asilo-de-un-ano-a-solo-15-dias (Spanish)·         Vox, “The Trump Administration Has Already Made Huge Refugee Cuts. It’s Reportedly Considering More.” He noted that if President Trump’s executive order allowing local governments to turn away refugees, which has been blocked by courts for the time being, is permitted to go into effect, it’s not clear how it would play out in practice. States won’t just be able to refuse refugees from certain nations, such as Syria, he said; immigration law provides that state and local governments must provide aid “without regard to race, religion, nationality, sex or political opinion.” https://www.vox.com/2020/9/11/21431157/trump-refugee-admissions-resettlement-cap-2021Mr. Yale-Loehr was quoted by several media outlets about a new H-1B rule:·         Law360, “Trump Admin Preps Stricter H-1B Visa Rules for Release.” Mr. Yale-Loehr predicted that the H-1B visa changes would draw lawsuits, saying that the administration’s purported goal to protect American workers with visa restrictions is undermined by the business sector’s contention that specialized foreign workers boost the U.S. economy. “The new rule may score points with the president’s political base, but it flunks Economics 101,” he said. https://bit.ly/323wxwp (available by registration)·         Breitbart, “Business Groups Warn H-1B Outsourcing Reform Is Imminent.” Mr. Yale-Loehr’s statement above was quoted, and he added, “It will also be immediately challenged in court.” https://bit.ly/3by27Fu ·         Univision, “La Casa Blanca revisa propuesta que afectará las visas H-1B para profesionales extranjeros.” Mr. Yale-Loehr’s statement above was quoted. https://bit.ly/35aeS87 (Spanish)Mr. Yale-Loehr was quoted by Voice of America News in “VOA Journalists Fly Home After USAGM Fails to Renew J-1Visas.” Mr. Yale-Loehr told the Voice of America that J-1 exchange visitors bring “substantial economic benefits” to the United States. “Many of these jobs are specialized and, depending on the nature of the job, it may not be feasible for an employer to find a U.S. worker to replace them,” he said, noting that although visa sponsors do not have legal obligations to renew employees’ visas, “they may have a moral obligation if they’re sending J-1 workers back to harm’s way.” He added that those fearing persecution have a right to seek asylum. https://www.voanews.com/usa/voa-journalists-fly-home-after-usagm-fails-renew-j-1-visas

Mr. Yale-Loehr was quoted by Univision in “¿Habrá una reforma migratoria si gana Biden? ¿Deshará la política de Trump? Lo que puede pasar tras las elecciones.” (“Will there be immigration reform if Biden wins? Will he undo Trump’s policy? What can happen after the elections?”) Mr. Yale-Loehr said, “If Biden wins but Republicans continue to control the Senate, it will be very difficult to get Congress to pass a bill to reform our broken immigration system. It will also be difficult for him to make changes through executive orders. Conservative groups or Republican states would likely sue to stop Biden’s executive orders, just as the American Civil Liberties Union (ACLU) and liberal states sued to stop many of President Trump’s executive orders.” He said that even if Biden wins and makes the promised changes, “these would not go into effect immediately.” He noted that “it could be difficult to undo all the immigration damage that President Trump has inflicted, for a number of reasons. First, Biden and Congress will have several competing priorities in 2021, including conquering the coronavirus pandemic and resurrecting our economy.” Faced with this unexpected scenario, “immigration reform may not happen immediately,” as it did with President Obama during his first term, when the wars in Iraq and Afghanistan, the 2008 economic crisis, and health care reform were first place on the priority list. “Second, even when Congress enacts a comprehensive immigration reform law, it will take some time to implement,” he warned. “Third, it may take some time to replace the anti-immigrant officials currently in immigration agencies with more pro-immigrant officials. And fourth, it will take time to overcome the immigration delays created by the current administration. For all these reasons, I am afraid that we will not see as much progress in immigration reform in the next four years as many would like.” https://bit.ly/2YrpKdL (Spanish).

Mr. Yale-Loehr was quoted by Study International in “International Students in U.S. Universities Can Get Paid for Online Jobs.” Mr. Yale-Loehr said, “Arguably, if a university hires someone to work overseas, the institution has to comply with the tax and labor laws of that country. That can be complicated, depending on the country. However, I don’t know of any visa-related reasons why a university can’t employ a non-citizen overseas, as long as the work is properly documented and the employee and the university comply with the relevant visa rules.” The article is at https://www.studyinternational.com/news/online-college-student-jobs/.

Mr. Yale-Loehr was quoted by Inside Higher Ed in “Want Your Stipend? Come to the U.S. First.” The quote is the same as that above for Study International. The article is at https://bit.ly/2DRcuYZ. Mr. Yale-Loehr was quoted by Univision in “Se acaba el plazo para comentar nuevas regulaciones de asilo propuestas por el gobierno de Trump” (“Deadline to Comment on New Asylum Regulations Proposed by the Trump Administration”). Mr. Yale-Loehr said, “This new proposed rule will radically restrict the ability of people fleeing persecution to obtain asylum in the United States.” The article (in Spanish) is at https://bit.ly/3iFiYZm. Mr. Yale-Loehr was quoted by the Times of India in “Nasscom Says Trump Move on Federal Contracts Misguided.” He said the latest executive order seems innocuous, but that “as we have seen with prior executive orders, this may be the starting point to increase H-1B enforcement generally. Moreover, even if the review doesn’t do much, it is good publicity for Trump to appear to support American workers as part of his re-election campaign.” The article is at https://bit.ly/31r3pgU.

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ABIL Global Update • October 2019

/in /by

In this issue:

1. BREXIT NO-DEAL CONTINGENCY PLANS: AN OVERVIEW – This article provides an overview of contingency plans in several countries in the event of a possible “no-deal Brexit.”

2. ITALY -The new government proposes changes to the citizenship law.

3. RUSSIA -This article provides an update on immigration-related legislative developments in Russia

4. UNITED KINGDOM -The UK government has announced some helpful autumn rule changes for Tier 2.

5. New Publications and Items of Interest -New Publications and Items of Interest

6. ABIL Member / Firm News -ABIL Member / Firm News

Download:

ABIL Global Immigration Update – October 2019

1. BREXIT NO-DEAL CONTINGENCY PLANS: AN OVERVIEW

This article provides an overview of contingency plans in several countries in the event of a possible “no-deal Brexit.”

Belgium

The federal Belgian authorities have prepared emergency legislation for a no-deal Brexit.

An Act dated April 3, 2019 (hereafter “the Brexit Act”) regulates the right to reside in Belgium for United Kingdom (UK) citizens and their family members between, in principle, the withdrawal date and December 31, 2020. Apart from one section regarding economy/insurance, the Brexit Act, and thus also its immigration rules, will take effect on the date confirmed by Royal Decree. This date will, logically speaking, be the withdrawal date in the event of a no-deal Brexit. The Brexit Act immigration rules will cease to be applicable on December 31, 2020, or an earlier date confirmed by Royal Decree.

The Belgian government has not yet issued a Royal Decree to confirm the date on which the Brexit Act will take effect. They await the outcome of the pending Brexit discussions.

The Brexit Act immigration rules can be annulled, amended, completed, or replaced by a Royal Decree. They can, in principle, be summarized as follows:

  • UK citizens and their family members who hold a right to reside in Belgium before the withdrawal date maintain this right after the withdrawal date. Residence permits expiring between the withdrawal date and, in principle, December 31, 2020, will be extended until, in principle, December 31, 2020;
  • UK citizens and their family members who do not yet have a Belgian residence permit should apply for a residence permit prior to the withdrawal date. Applications that are still pending on the withdrawal date will be processed under the pre-Brexit rules;
  • Applications for residence permits filed after the withdrawal date will be processed according to the rules for third-country nationals, unless these applications are filed by family members of UK citizens, who are eligible to reside under the above-mentioned rules (they hold a right to reside on the withdrawal date or they have filed a residence permit application before the withdrawal date).

The Belgian government has also prepared Royal Decrees granting the right to work to UK citizens who reside in Belgium on the withdrawal date and who can continue to reside in Belgium after Brexit pursuant to the Brexit Act, until, in principle, December 31, 2020. This legislation has not yet been approved.

For UK citizens not protected by the Brexit Act, all three regions (Flanders, Brussels, and Wallonia) have implemented a three-month work permit (for employees)/professional card (for self-employed) exemption during the transition period, i.e., between the withdrawal date and December 31, 2020.

The Flanders region has issued a no-deal Brexit decree, dated March 22, 2019. This decree holds that “a provision…exempts UK nationals who wish to pursue economic activities on the territory of the Flemish Region after Brexit from a work permit or professional card during the transition period, provided their performance is limited to a maximum of ninety days. If their performance exceeds the maximum of ninety days, UK nationals will have to request a work permit or professional card, according to the procedure for third country nationals. However, an accelerated procedure will then be provided.”

A similar provision is included in a decree for the Walloon region, dated April 4, 2019: during the transition period (this means until December 31, 2020), UK nationals can work as an employee or self-employed without a work permit or professional card, provided their work in the Walloon region does not exceed 90 days.

A similar short-term exemption during the transition period in a no-deal scenario has been implemented by a decree for the Brussels region, dated March 28, 2019. The text states that the exemption can be invoked “for a term of maximally 90 days, starting at the latest on 31 December 2020, in any 180-day period…provided a reciprocity measure exists.”

Italy

With decree 25 March 2019, n. 22, the Italian government has outlined the measures that will apply if the United Kingdom (UK) leaves the European Union (EU) without a deal. In particular, article 14 refers to the residency rights of British nationals and their non-EU family members living in Italy, and article 15 refers to Italian citizenship applications. The legislative measures taken by the Italian government ensure that UK nationals legally resident in Italy at the time of Brexit will have the right, and sufficient time, to obtain long-term resident status under EU Directive 2003/109.

Details: See https://www.mazzeschi.it/category/british-citizens-rights-in-italy-after-brexit/; https://www.mazzeschi.it/eventi/brexit-immigration-podcast-a-view-from-italy/.

United Kingdom

On the same day the House of Commons voted to try and rule out the possibility of a no-deal Brexit, the Home Office released on September 5, 2019, an updated policy paper on no-deal immigration arrangements for EU citizens arriving after Brexit, currently scheduled for October 31, 2019.

In a no-deal scenario, EU citizens resident in the UK before that date are expected to be able to continue to reside in the UK and apply under the EU Settlement Scheme. On that basis, practitioners are advising that when possible EU citizens wishing to reside in the UK seek to arrive in the UK before October 31, 2019.

There has been ongoing uncertainty. For example, since August 19, 2019, when Home Secretary Priti Patel announced that there would effectively be an end to free movement after October 31, 2019, there has been concern in relation to what will happen to EU citizens who arrive in the UK for the first time after October 31, 2019, if there is a no-deal Brexit.

Details: Alert on Brexit, https://www.kingsleynapley.co.uk/insights/news/no-deal-brexit-policy-update-provides-some-relief-for-employers-and-eu-citizens; UK policy paper,

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2. ITALY

The new government proposes changes to the citizenship law.

The Italian government is proposing a bill to introduce significant changes
to current Italian Citizenship law (Law 91 of 1992) with regard to the
citizenship acquisition process for children.

If the bill is approved, citizenship could be adjudicated for: (i) foreign
children born in Italy who have at least one parent holding a European
Union permit for long-term residents; (ii) children who immigrated to Italy
before the age of 12 and have spent at least five years in the country’s
education system. Additionally, a minor child who acquires or reacquires
Italian citizenship will become an Italian national even if not living with
the parents.

The draft law was discussed by the Parliament in early October.

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3. RUSSIA

This article provides an update on immigration-related legislative developments in Russia.

Starting October 1, 2019, Invitation Letters To Be Issued in E-Form Only

According to the Internal Affairs Ministry Moscow immigration office, starting October 1, 2019, all invitation letters for foreign citizens and stateless persons will be issued in Moscow in e-form only. Additionally, payment certificates must be filed immediately along with the application package.

Corrections will be made only in case of a mistake made by Internal Affairs Ministry officials and only if the mistakes are in the spelling of a foreign citizen’s name or in the place of birth. Such corrections will take approximately 1-2 business days. A corrected invitation letter will be also sent to the appropriate consulate. Corrections will not be made in the date of intended entry and exit or the place of the visa application—Russian consulate abroad.

A foreign citizen can apply for a visa on the basis of the invitation letter, issued in e-form only to the consulate, as mentioned in the application for the invitation letter.

E-Visas: List of Countries Whose Citizens Can Use E-Visas to Enter Russia Through Border Posts in St. Petersburg and Leningradskaya Region Approved

The list of countries whose citizens can use e-visas to enter Russia through border posts in St. Petersburg and the Leningradskaya region has been approved.

The following types of visas will be issued in e-form:

  • One-entry ordinary business
  • Tourist
  • Humanitarian

There are 53 countries on the list.

At the moment there is no information regarding through which border control posts entry with e-visas will be possible in St. Petersburg and the Leningradskaya region.

New Out of Quota Positions List

The Ministry of Labor and Social Development has approved a new list of job positions for qualified foreign specialists, who can be employed for up to one year without a quota.

The new list consists of 80 positions and is effective as of September 8, 2019.

Positions excluded from the list:

  • Quality engineer
  • Manager (in public nutrition and hotel service)
  • Head waiter (administrator of the shop floor)
  • Technical literature translator
  • Chef-cook

Positions added to the list:

  • Dispatcher
  • Regime planning engineer
  • Engineer-programmer
  • Repair of the technological equipment master
  • Technological installations operator
  • Fitter for the repair of technological installations
  • Electrician for the repair and maintenance of electrical equipment

The list still contains various managerial positions, as well as engineering and creative professions.

New Highly Qualified Specialist (HQS) Application Form, Notifications on Foreign Citizens Performing Labor Activities in Russia

On August 29, 2019, an Order of the Internal Affairs Ministry was published, effective September 9, 2019, which approves new:

  1. Application form and regulations for the HQS work permit process. This application form is submitted personally by the foreign citizen.

The application form for an HQS work permit by the employer has not changed;

  1. Notification form and regulations regarding employment of a foreign citizen, submitted by an organization rendering job search and employment services to foreign nationals in Russia;
  2. Notification form and regulations regarding salary payments to HQS;
  3. In relation to foreign citizens who are studying full-time in college or university in Russia:
  • Notification form on signing of a labor or civil agreement;
  • Notification form on termination of a labor or civil agreement;
  • Notification form regarding granting of unpaid leave for more than one month within one calendar year;
  • Regulations for filing of the above-mentioned notifications by employers and customers;
  1. Notification form regarding completion or termination of studies by a foreign citizen who is performing work activities in Russia and studies in Russia full-time, as well as regulations for filing by the educational organization;
  2. Notification form regarding signing of a labor agreement with a foreign national;
  3. Notification form regarding termination of a labor agreement with a foreign national; and
  4. Regulations on filing notifications regarding signing and termination of labor agreements with foreign nationals.

There have been slight changes in these notification forms, and abbreviations and reductions are no longer acceptable on the forms (except official ones).

In relation to this, because the form fields may be insufficient, additional pages are included where employers must enter data for which there was not enough space on the form itself.

Additional pages are completed when necessary. On the additional page, it is necessary to state the number and name of the field in the form for which information is being added, as well as the full name of the foreign citizen for whom the notification is filed.

Notifications and additional pages, which may consist of two or more pages, must be attached together and numbered, and on the last page of the notification an additional page certification record must be made.

Notification Regarding Termination of Foreign Citizenship or Right for Permanent Stay in a Foreign Country (for Russian Citizens)

On October 17, 2019, amendments to the Federal Law from 31.05.2002, N 62-FL “on Russian citizenship” come into force. These amendments concern Russian citizens who have citizenship from a foreign country or a document granting the right of permanent stay in a foreign country.

Previously there was a legally established duty to file a notification in the territorial department of the Internal Affairs Ministry regarding receipt of foreign citizenship or permanent residence in a foreign country or other document granting the right to a Russian citizen of permanent stay in a foreign country.

Starting October 17, 2019, if foreign citizenship or the right of permanent stay in a foreign country have been terminated, the Russian citizen has the right to file a written notification regarding this. The amendments give the right (but do not establish a duty) to the Russian citizen to file such a notification. Written notification is filed by the Russian citizen (or their legal representative) in the territorial department of the Internal Affairs Ministry depending on their permanent or temporary residence address within Russia.

Project: Increasing Use of Electronic Visas

The Russian government has filed a bill of the Federal Law to the State Duma that will amend articles 25 and 25.17 of the Federal Law, “On entering and exiting Russian Federation,” and article 11 of the Federal Law, “On legal status of foreign citizens in Russia.” The amendments are concerned with the use of electronic visas.

The Ministry for the Development of the Russian East has launched a project that provides for an increase in the use of electronic visas. Electronic visas will also be used in automobile, river, and mixed border control points situated in the territory of the Far Eastern Federal District.

Electronic visas have already been introduced at the following points of entry:

  • Free port Vladivostok;
  • Territory of the free economic zone in the Kaliningradskaya region;
  • Through air points of entry determined by the Russian government and situated in the territory of the Far Eastern Federal District.

Starting October 1, 2019, foreign citizens can apply for e-visas to enter Russia through immigration posts located in St.-Petersburg and the Leningrad region.

Application for e-visas to enter through immigration posts in St.-Petersburg and the Leningrad region will be possible for foreign citizens from 53 countries whose citizens can enter and exit the Russian Federation through immigration posts in St. Petersburg and the Leningrad region on the basis of one-entry standard business, tourist, and humanitarian visas, issued in electronic format.

For details on how to apply, see http://electronic-visa.kdmid.ru/index_en.html.

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4. UNITED KINGDOM

The UK government has announced some helpful autumn rule changes for Tier 2. (For an update on Brexit no-deal contingency plans in the United Kingdom, see the feature article in this issue, above.)

The Home Office has announced various rule changes set to start in October 2019. The statement of changes runs to some 102 pages. The key changes to be aware of for Tier 2 include:

  • As anticipated, the government has confirmed the expansion of the shortage occupation list as of October 6, 2019. This is good news for employers who use Tier 2 because it means that more applications—including for architects and IT roles such as web design and development professionals, IT business analysts, programmers, and software development professionals—can be submitted without the need for prior advertisements as part of the Resident Labour Market Test;
  • PhD-level occupations will be exempt from the monthly quota as of October 6, 2019;
  • Where a Tier 2 worker in a PhD-level occupation has absences from the UK for research linked to their employment, those absences will not count in an Indefinite Leave to Remain (ILR) application as of October 1, 2019;
  • Changes have been made so that as of October 1, 2019, Tier 2 workers who are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis, or engaging in legal strike action may still apply for ILR even if those absences cause their salary to fall below the required threshold; and
  • As of October 1, 2019, Tier 4 (General) students have the right to work for the Tier 2 sponsor when they switch into the Tier 2 (General) category within 3 months of completion of their degree course.

If an application for leave has been made before those dates, it will be decided in accordance with the rules in force the day before.

Separately, the current government announced its intention to bring back a previously deleted category called Post Study Work. As with the previous category, the intention would be that when a student completes their UK degree, they can apply for leave valid for two years in order to “bridge the gap” between study and work. This category used to fit into Tier 1 of the Points Based System and was a very useful tool for employers to employ graduates without first sponsoring them under Tier 2. The current government has indicated that the Post Study Work category would be available to graduates who start degree-level courses next year onwards.

Details: See https://www.kingsleynapley.co.uk/insights/news/tier-2-some-helpful-autumn-rule-changes-announced.

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5. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: ·         The latest immigration news is at https://www.abil.com/news.cfm. ·         The latest published media releases include:

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

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6. ABIL Member / Firm News

Joseph Law Firm, P.C. has a new partner and a new name. It is now Joseph & Hall P.C. See https://www.immigrationissues.com/.

Partners H. Ronald Klasko, William A. Stock, and Elise A. Fialkowski have been included in 26th edition of Best Lawyers in America in the area of immigration law.

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) was named the Best Lawyers 2020 Immigration Law “Lawyer of the Year” in Austin, Texas, for the third year. Recognition was based on the consensus of almost 50,000 leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Mr. Loughran is the Managing Partner of Foster LLP‘s Austin office with a concentration in corporate immigration, investor immigration, and emigration to third countries. Mr. Loughran presents frequently before legal, professional, and academic organizations on the topics of U.S. and foreign work authorization, employer sanctions, maintenance of status, and changes in government proceedings.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted by Law360 in “Attys Face Greater Urgency After High Court OKs Asylum Bar.” Mr. Mehta said that if he were to represent someone who had perhaps sneaked into the U.S. but would have been subject to the asylum bar—which only applies to those who entered the U.S. after July 15—he would treat that person as a withholding of removal or CAT relief case, and advise the migrant of the limitations. But he said he could also bring an asylum claim on the person’s behalf and challenge the legality of the regulation. For example, if the migrant had applied for asylum in a third country but hadn’t been formally denied, the case could be made that a lack of response constitutes a “de facto refusal” in a country without a functioning asylum system. The article is available by registering at https://www.law360.com/articles/1198444/attys-face-greater-urgency-after-high-court-oks-asylum-bar.

Mr. Mehta has authored a new blog entry. “Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing Denial of a National Interest Waiver” is at http://blog.cyrusmehta.com/2019/09/poursina-v-uscis-federal-courts-may-not-have-last-word-in-reviewing-a-denial-of-a-national-interest-waiver.html.

Stacy Caplow and Maryellen Fullerton, of Cyrus D. Mehta & Partners PLLC, have co-authored a new blog entry. “Migrant ‘Protection’ Protocol: A Report From the Front Lines” is at http://blog.cyrusmehta.com/2019/09/migrant-protection-protocol-a-report-from-the-front-lines.html.

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog entry. ” ‘An Act of Cruel Injustice’: If the Trump Administration is Relying on Grudging Court Acceptance of Cruel Results as Support for the New Public Charge Rule, What Does That Say About the Rule?” is at .

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry. “Recent H-1B Case Brings Hope that Reliance of the Umbrella ‘All Other’ Occupational Classification Need Not Be Fatal” is at .

Greg Siskind, of Siskind Susser, has been included in the 26th edition of Best Lawyers in America in the area of immigration law.

Siskind Susser, PC, has received this year’s InnovAction award from the College of Law Practice Management (along with Suffolk Law School) for its Visalaw.ai initiative. This is one of the legal field’s top awards for practice management innovation, and Siskind Susser PC is the first immigration firm to receive it in the two decades it has been awarded. See http://www.visalaw.com/siskind-susser-receives-2019-innovaction-award/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by the Houston Chronicle in “Trump Administration Blocks Most Asylum Seekers in ‘Profound’ Change to System as Legal Fights Continue.” He noted that Supreme Court justices historically have been more deferential to presidential power in immigration than in most other areas. But, recalling outrage over migrant family separation that caused the Trump administration to announce an end to the policy before a federal judge forced it to do so, he noted, “The court of public opinion is just as important as courts of law.” See https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-administration-blocks-most-asylum-seekers-14439089.php.

Mr. Yale-Loehr was also quoted in the following media:

  • Wall Street Journal, “AI Workers Deserve Special Visa Consideration, Group Says” (Mr. Yale-Loehr said that proposals by a global group focused on artificial intelligence that is calling on governments to revamp their visa policies to make it easier for AI professionals to move around the world are unlikely to succeed in the United States. “I wish them well, but a lot of these things I do not think are going to be implemented in the United States,” he said. See https://www.wsj.com/articles/ai-workers-deserve-special-visa-consideration-group-says-11568107802
  • · Times of India, “Deloitte, Apple, Cognizant Biggest Filers of LCAs in FY 2019” (Mr. Yale-Loehr said the decline in H-1B filings is not limited to Indian companies. “Overall, the number of LCAs filed by the top 10 employers in the third quarter of 2019 was 218,906, down from 374,951 in the same quarter of 2018. The percentage decline is slightly higher for Indian companies, but the more significant finding is the overall decline,” he said. See https://timesofindia.indiatimes.com/business/india-business/deloitte-apple-cognizant-biggest-filers-of-lcas-in-fy2019/articleshow/71060708.cms·
  • Law360 (available by registration), “Future of Asylum Bar Remains Uncertain, Despite Court Block.” Mr. Yale-Loehr noted that another restricted injunction could also lead to asylum seekers becoming “savvy” and deliberately entering the United States within the Ninth Circuit only. “Here with the stakes so high, I think that there are particularly compelling reasons to decide this issue nationwide and not circuit by circuit,” he said.

See https://www.law360.com/publicpolicy/articles/1196922/future-of-asylum-bar-remains-uncertain-despite-court-block

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted in several publications about the new indefinite-detention rule:·

  • NPR, “New Trump Policy Would Permit Indefinite Detention of Migrant Families, Children,” https://n.pr/2Hl3I3T (“Federal courts have struck down almost every effort this administration has made to curtail the rights of immigrants. When will President Trump realize that immigrants in the U.S. have due process rights?”·
  • Bloomberg News, “Trump Faces Long-Shot Bid to Jail Migrant Families Indefinitely,” https://bloom.bg/2zwAjQ1 (President Trump can claim that he tried to fix our broken asylum system, but that those liberal judges in California prevented him from doing so,” Yale-Loehr said. “This will be a [political] win for Trump, even if he loses in court.”)·
  • Washington Times, “Trump Aims to Stop Surge With Family Detentions: ‘They won’t come. And many people will be saved,” (“Federal courts have struck down almost every effort this administration has made to curtail the rights of immigrants. When will President Trump realize that immigrants in the U.S. have due process rights?”)·
  • Law360, “Trump Rule To Detain Migrant Kids Unlikely To Survive Courts,” (available by registration) (Mr. Yale-Loehr said courts might find the rule to be an “arbitrary and capricious” agency action under the Administrative Procedure Act because it fails to abide by the spirit of the decades-old Flores agreement)

Mr. Yale-Loehr was interviewed in the Capitol Pressroom podcast on August 20, 2019, “Trump Immigration Changes,” http://www.wcny.org/august-20-2019-trump-immigration-changes/.
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