In this issue:

1. E-Verify+ Trial Launched; Users Should Check Their Bookmarks, USCIS Said – E-Verify+ integrates the Form I-9 and E-Verify employment eligibility verification processes. USCIS also noted that E-Verify users should check their bookmarks and update them if needed.

2. USCIS Reminds SAVE Users to Certify Tutorial Review, Provides Best Practice Tips – As of May 28, 2024, SAVE users must certify review of the SAVE tutorial before creating new SAVE cases. The agency also provided best practice tips when submitting a case.

3. USCIS Updates Guidance on Family-Based Immigrant Visas – Effective May 22, 2024, U.S. Citizenship and Immigration Services (USCIS) has updated its guidance on family-based immigrant visa petitions. The update includes an explanation of how USCIS corrects approval notice errors, processes requests for consular processing or adjustment of status on the beneficiary’s behalf, and handles routing procedures for approved petitions.

4. District Court Approves New Visa Applications and Fee Waivers for Travel Ban Class Members – Affected class members include nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were refused visas under Presidential Proclamation 9645.

5. DOJ, DOL Secure Agreements With Tech Company to Resolve Discriminatory “U.S. Born Citizens [Whites Only]” Job Posting – On May 23, 2024, the Departments of Justice and Labor announced separate agreements with Arthur Grand Technologies Inc., an information technology services firm based in Virginia.

6. DOS Implements New Visa Restrictions for Certain Georgians – Secretary of State Antony Blinken said that “anyone who undermines democratic processes or institutions in Georgia—including in the lead-up to, during, and following Georgia’s October 2024 elections—may be found ineligible for U.S. visas under this policy and precluded from travel to the United States.”

7. DHS Issues New ‘Western Hemisphere Parole’ Class of Admission – As part of the Biden administration’s actions to manage regional migration and facilitate “safe, orderly, and humane processing of migrants,” the Department of Homeland Security has issued a new class of admission, Western Hemisphere Parole.

8. SAVE Requires Users to Review New Tutorial – SAVE users must review a new tutorial and certify completion of their review before creating new SAVE cases.

9. Representatives Send Letter to USCIS Director Expressing Concerns About Work Authorization Process for Asylees and Humanitarian Parolees – Sixteen members of Congress sent a letter to Ur Jaddou, Director of U.S. Citizenship and Immigration Services, expressing their concerns with the process for submitting Employment Authorization Document applications for asylees and humanitarian parolees.

10. DOJ Secures Agreement With National Home Healthcare Company to Resolve Immigration-Related Employment Discrimination Claims – The Department of Justice announced that it secured a settlement agreement with Maxim Healthcare Services, a home healthcare company based in Columbia, Maryland, with operations in 35 states.

11. Retrogression Likely in EB-2 and EB-3 Categories, Visa Bulletin for June 2024 States – High demand in the employment-based second (EB-2) and third (EB-3) categories will most likely necessitate retrogression of the worldwide final action date (including Mexico and Philippines) next month. Also, a new law may affect certain current and former employees of the U.S. government abroad applying for Special Immigrant Visas or adjustment of status.

12. USCIS Clarifies Policy on Location of H-3 Training – U.S. Citizenship and Immigration Services issued policy guidance clarifying when H-3 nonimmigrants may participate in training provided on the property of an academic or vocational institution.

13. OFLC Seeks Comments on Proposed Three-Year Extension of Labor Condition Application and WH-4 Forms for H-1B, H-1B1, and E-3 Temporary Programs – Comments are due by July 5, 2024.

14. DOL Ratifies Final H-2A Rule’s AEWR Methodology – The Department of Labor published a notice stating that the Assistant Secretary for Employment and Training ratified a final rule on Adverse Effect Wage Rate methodology for H-2A agricultural workers “out of an abundance of caution.”

15. DOJ Secures Agreement With Climate Nonprofit to Resolve Immigration-Related Employment Discrimination Claims – The agreement resolves the Department of Justice’s determination that Second Nature violated the Immigration and Nationality Act by posting discriminatory job advertisements that deterred non-U.S. citizens from applying for open positions.

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – June 2024

1. E-Verify+ Trial Launched; Users Should Check Their Bookmarks, USCIS Said

U.S. Citizenship and Immigration Services (USCIS) announced the launch of the E-Verify+ trial. E-Verify+ integrates the Form I-9 and E-Verify employment eligibility verification processes.

USCIS said that the trial puts the agency “one step closer to bringing E-Verify+ to you.” The trial will include live testing with E-Verify users to assess the user experience. Their feedback will be considered for incorporation in the product when it is released for wider use, USCIS said.

USCIS also noted that E-Verify users should check their bookmarks. Effective June 25, 2024, the E-Verify account log-in page will only be accessible through everify.uscis.gov. Users should review their bookmarks to ensure that they are using the current URL without a dash, USCIS said.

Details:

• E-Verify+ trial announcement (May 29, 2024).

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2. USCIS Reminds SAVE Users to Certify Tutorial Review, Provides Best Practice Tips

U.S. Citizenship and Immigration Services (USCIS) reminded Systematic Alien Verification for Entitlements (SAVE) users that as of May 28, 2024, SAVE users must certify review of the SAVE tutorial before creating new SAVE cases. SAVE users will be unable to create new SAVE cases until they attest to review of the SAVE tutorial and certify to completion. Users can complete the certification without delay at SAVE> Manage Profile.

SAVE published a new SAVE Tutorial that provides guidance “to help SAVE users correctly and efficiently use SAVE to verify benefit applicants, which users are encouraged to review,” USCIS said.

The tutorial provides information about:

• SAVE and the verification process
• SAVE CaseCheck
• Commonly used immigration documents and where to find immigration enumerators
• Common case responses
• Best practices for additional verification
• Managing cases
• Administering SAVE accounts

USCIS also noted that the SAVE additional verification response time for May 2024 is now five federal workdays. “Response times vary depending upon the complexity of the case,” USCIS said. The agency provided the following best practice tips when submitting a case:

• Ensure that the applicant’s name, date of birth, and immigration enumerators are entered exactly as they appear on the applicant’s immigration documentation.
• Include all immigration enumerators provided by the applicant. For example, if the applicant presents a Form I-766, Employment Authorization Document, and a Form I-94, Arrival/Departure Record, enter both the USCIS number from the I-766 and the I 94 number into SAVE.
• If an applicant needs their most recent Form I-94 issued by U.S. Customs and Border Protection (CBP), they can visit CBP’s I-94 website or download the CBP One mobile app to retrieve a copy.

Details:

• SAVE announcements (May 28, 2024).

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3. USCIS Updates Guidance on Family-Based Immigrant Visas

Effective May 22, 2024, U.S. Citizenship and Immigration Services (USCIS) has updated its guidance on family-based immigrant visa petitions. The update includes an explanation of how USCIS corrects approval notice errors, processes requests for consular processing or adjustment of status on the beneficiary’s behalf, and handles routing procedures for approved petitions.

USCIS explained that the update clarifies procedures for family-based immigration petitions “to promote more efficient processing where the beneficiary’s preference for consular processing or adjustment of status is unclear or has changed or a correction is needed.”

The updated guidance “provides that if you do not clearly indicate whether your beneficiary wants consular processing or adjustment of status, we will use discretion to decide whether to send the approved petition to the [National Visa Center] for consular processing or keep the petition for adjustment of status processing, based on evidence of the beneficiary’s most recent location, including the beneficiary’s address on the petition,” USCIS said.

Details:

• USCIS alert (May 22, 2024).
• USCIS Policy Manual.

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4. District Court Approves New Visa Applications and Fee Waivers for Travel Ban Class Members

Certain nonimmigrant and immigrant visa applicants who were refused visas under a Trump-era travel ban can now obtain a one-time fee waiver to submit a new visa application and receive a prioritized visa appointment, thanks to federal district court approval. Affected class members include nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were refused visas under Presidential Proclamation 9645.

The U.S District Court for the Southern District of California also requires the government to notify all eligible class members and provide periodic reports.

Details:

• Emami v. Nielsen, Case 3:18-cv-01587-JD, Joint Proposed Injunction (May 14, 2024).
• Emami v. Mayorkas, 18-cv-01587-JD and 18-cv-07818-JD, Order re Summary Judgment (Aug. 1, 2022).

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5. DOJ, DOL Secure Agreements With Tech Company to Resolve Discriminatory “U.S. Born Citizens [Whites Only]” Job Posting

On May 23, 2024, the Departments of Justice (DOJ) and Labor (DOL) announced separate agreements with Arthur Grand Technologies Inc., an information technology services firm based in Virginia.

DOJ’s agreement resolves the department’s determination that Arthur Grand violated the Immigration and Nationality Act (INA) by posting a discriminatory job advertisement in March 2023 that restricted eligible candidates to “only US Born Citizens [white] who are local within 60 miles from Dallas, TX [Don’t share with candidates]” [brackets in original].

DOJ’s agreement notes that Arthur Grand “asserted that the posted advertisement was generated by a disgruntled recruiter in India and was intended to embarrass the company; and Respondent thereby denies that the posting was authorized by the company or that Respondent intended to dissuade non-U.S. Citizens from applying for the position.” The agreement orders the company to pay a civil penalty of $7,500. Among other requirements, the agreement also requires recruitment personnel to view a training video.

DOL’s agreement resolves its determination that Arthur Grand violated Executive Order 11246, which prohibits federal contractors from discriminating in employment based on race, color, religion, sex, sexual orientation, gender identity, or national origin. That agreement includes $31,000 to compensate individuals and other injunctive relief.

Details:

• DOJ press release (May 23, 2024).
• DOJ agreement (May 23, 2024).
• DOL agreement (May 3, 2024).

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6. DOS Implements New Visa Restrictions for Certain Georgians

In response to a new “foreign influence” law and related “campaign of intimidation and the use of violence to suppress peaceful dissent,” Secretary of State Antony Blinken announced on May 23, 2024, that it is implementing “a new visa restriction policy for Georgia that will apply to individuals who are responsible for or complicit in undermining democracy in Georgia, as well as their family members.” He said this includes “individuals responsible for suppressing civil society and freedom of peaceful assembly in Georgia through a campaign of violence or intimidation.”

Secretary Blinken said that “anyone who undermines democratic processes or institutions in Georgia—including in the lead-up to, during, and following Georgia’s October 2024 elections—may be found ineligible for U.S. visas under this policy and precluded from travel to the United States.”

Details:

• DOS press statement (May 23, 2024).

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7. DHS Issues New ‘Western Hemisphere Parole’ Class of Admission

As part of the Biden administration’s actions to manage regional migration and facilitate “safe, orderly, and humane processing of migrants,” the Department of Homeland Security (DHS) has issued a new class of admission (COA), Western Hemisphere Parole (WHP). Individuals with this COA can be paroled into the United States, on a case-by-case basis, for up to three years. Such parolees are not authorized to work incident to their parole, DHS said, and must have an Employment Authorization Document (EAD) if they wish to work. DHS said that Systematic Alien Verification for Entitlements can provide an initial verification response of parolee with a COA of WHP. The initial response may also include work authorization information if the parolee has an EAD.

DHS noted that WHP parolees may have more than one valid immigration status or category and may also present valid immigration documents that demonstrate other pending applications or approved statuses or categories.

Cuban and Haitian nationals who are paroled into the United States under the WHP COA may be eligible to receive certain public benefits, DHS said.

Details:

• New COA for Western Hemisphere Parole (DHS notice), May 13, 2024.
• S. Government Announces Sweeping New Actions to Manage Regional Migration (DHS fact sheet), Apr. 27, 2023.

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8. SAVE Requires Users to Review New Tutorial

Systematic Alien Verification for Entitlements (SAVE) is requiring users to review a new tutorial that “provides up-to-date guidance to help SAVE users correctly and efficiently use SAVE to verify benefit applicants.” The tutorial takes about 15 to 20 minutes to complete.

Effective May 28, 2024, SAVE users must review the new tutorial and certify completion of their review before creating new SAVE cases. SAVE users “are encouraged to review the tutorial now,” U.S. Citizenship and Immigration Services (USCIS) said.

Details:

• SAVE Requires Users to Review New Tutorial, USCIS, May 13, 2024.

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9. Representatives Send Letter to USCIS Director Expressing Concerns About Work Authorization Process for Asylees and Humanitarian Parolees

Sixteen members of Congress sent a letter to Ur Jaddou, Director of U.S. Citizenship and Immigration Services (USCIS), with a copy to David Neal, Director of the Executive Office for Immigration Review, expressing their concerns with the process for submitting Employment Authorization Document (EAD) applications for asylees and humanitarian parolees.

The letter notes barriers that may prevent EAD-eligible individuals from completing their forms and receiving work authorization. Most notably, the letter says that “the cost of filing a Form I-765 (an application for employment authorization) ranges from $470 to $520 starting April 1, 2024 for parole-based EAD submissions. Although parolees can apply for a fee waiver with Form I-912, there is no option to file it online, despite the fact that form I-765 can be completed online and a discount is offered for doing so. Additionally, both the Form I-765 and the Form I-912 are only available in English.” Furthermore, the letter states, the EAD application “is a lengthy, multi-step process, which may require assistance from an attorney or translator to complete.”

The letter asks several questions, and the signers offer to work with the Biden administration “to resolve agency-level barriers for EAD applicants in order to shorten processing and adjudication times.”

Details:

• Letter to Ur Jaddou, May 8, 2024.

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10. DOJ Secures Agreement With National Home Healthcare Company to Resolve Immigration-Related Employment Discrimination Claims

The Department of Justice (DOJ) announced on May 15, 2024, that it secured a settlement agreement with Maxim Healthcare Services (Maxim), a home healthcare company based in Columbia, Maryland, with operations in 35 states. The agreement resolves DOJ’s determination “that Maxim violated the Immigration and Nationality Act (INA) at its Gardena, California, office by discriminating against a non-U.S. citizen worker when it rejected her valid document showing her permission to work and requiring lawful permanent residents working for the company to prove their continued permission to work even though it was unnecessary.”

Specifically, DOJ determined that the company rejected the worker’s employment authorization document (EAD) “because the last name on it was different from the last name on her driver’s license and Social Security card, even though the company accepted documents from U.S. citizens under similar circumstances and believed that the EAD reasonably appeared to be genuine and to relate to the worker,” DOJ said. The investigation also determined that Maxim routinely required lawful permanent residents to present unnecessary documentation when their Permanent Resident Cards expired.

Under the settlement, Maxim will pay a civil penalty of $7,488 to the United States and $1,750 in lost wages to the affected worker, train its employees on the INA’s anti-discrimination requirements, revise its employment policies and processes, and be subject to monitoring by DOJ.

Details:

• DOJ press release (May 15, 2024).
• Settlement agreement (May 15, 2024).

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11. Retrogression Likely in EB-2 and EB-3 Categories, Visa Bulletin for June 2024 States

The Department of State’s (DOS) Visa Bulletin for June 2024 notes that high demand in the employment-based second (EB-2) and third (EB-3) categories will most likely necessitate retrogression of the worldwide final action date (including Mexico and Philippines) next month to hold number use within the maximum allowed under the fiscal year 2024 annual limit. The bulletin states that DOS will monitor this situation and make any necessary adjustments.

The bulletin also notes that the National Defense Authorization Act (NDAA) for Fiscal Year 2024, signed into law on December 22, 2023, may affect certain current and former employees of the U.S. government abroad applying for Special Immigrant Visas (SIVs) abroad or adjustment of status in the United States. This does not affect certain Iraqis and Afghans, the bulletin notes, adding that applicants “should contact the consular section at which they filed their Form DS‑1884 for further information on the impact of that law on their case.”

Details:

• DOS Visa Bulletin for June 2024.

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12. USCIS Clarifies Policy on Location of H-3 Training

On May 8, 2024, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance clarifying when H-3 nonimmigrants may participate in training provided on the property of an academic or vocational institution. USCIS noted that this was a clarification rather than a change in policy.

USCIS explained that generally, H-3 trainees “cannot participate in training provided primarily at or by an academic or vocational institution.” The updated policy guidance clarifies that “if other H-3 requirements are met, training that happens to take place on the physical property of an academic or vocational institution may qualify if the training program is primarily created, offered, and sponsored by a government agency or other nonacademic or nonvocational entity.”

Details:

• USCIS alert (May 8, 2024).

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13. OFLC Seeks Comments on Proposed Three-Year Extension of Labor Condition Application and WH-4 Forms for H-1B, H-1B1, and E-3 Temporary Programs

The Department of Labor’s (DOL) Employment and Training Administration (ETA) announced its intent to extend the Office of Foreign Labor Certification’s Labor Condition Application (LCA) forms and the Wage and Hour Division’s WH-4 complaint form for three years and invited public comments until July 5, 2024. DOL proposes the extensions without changes.

The information collection request includes LCA Forms ETA-9035, ETA-9035E (electronic), ETA-9035 and 9035E Appendix A, ETA-9035CP Instructions, and the WH-4 complaint form.

Written comments must be submitted in accordance with the notice’s instructions.

Details:

• OFLC notice (scroll to May 6, 2024).
• Federal Register notice (with a link to submit comments) (May 6, 2024).

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14. DOL Ratifies Final H-2A Rule’s AEWR Methodology

The Department of Labor (DOL) published a notice stating that the Assistant Secretary for Employment and Training (ETA) ratified a final H-2A rule published February 28, 2023, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States. The ratification was signed on May 3, 2024.

The notice explains that the final rule has become the subject of litigation asserting that the final rule was improperly issued. Specifically, a question concerns whether the final rule was approved by the Attorney General in consultation with the Secretaries of Labor and Agriculture. The notice states that on April 29, 2024, the Secretary of Homeland Security, in consultation with the Secretaries of Labor and Agriculture, approved the final rule. Before its issuance in February 2023, the final rule was provided to the Departments of Homeland Security and Agriculture through an interagency review process, the notice says. To “resolve any possible uncertainty,” the DOL, through its Assistant Secretary for Employment and Training, is ratifying the final rule “out of an abundance of caution.”

The ratification certifies, among other things, that “the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed, and that the changes adopted in the Final Rule best strike the balance between the statute’s competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages of workers in the United States similarly employed.”

Details:

• DOL ratification notice, 89 Fed. Reg. 38838 (May 8, 2024).

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15. DOJ Secures Agreement With Climate Nonprofit to Resolve Immigration-Related Employment Discrimination Claims

The Department of Justice (DOJ) announced that it secured a settlement agreement with Second Nature, a nonprofit organization based in Massachusetts, on May 9, 2024. The agreement resolves DOJ’s determination that Second Nature violated the Immigration and Nationality Act (INA) by posting discriminatory job advertisements that deterred non-U.S. citizens from applying for open positions.

DOJ explained that after opening an investigation based on a worker’s complaint, its Civil Rights Division’s Immigrant and Employee Rights Section (IER) concluded that “Second Nature posted a job advertisement inviting applications only from U.S. citizens. In doing so, the company deterred non-U.S. citizens with permission to work (such as people granted asylum or refugee status, and lawful permanent residents) from applying to the job advertisements and being fairly considered for the employment opportunities.” The investigation also determined that “the lawful permanent resident who filed the complaint was deterred from applying for the job because of the discriminatory language in the posting.”

Under the settlement, Second Nature will pay a $4,610 civil penalty to the United States and pay the affected worker $904 in lost wages. The agreement also requires the company to train those employees who recruit on the INA’s requirements, revise its employment policies, and be subject to monitoring and reporting requirements.

Details:

• DOJ press release (May 9, 2024).
• Settlement agreement (May 9, 2024).

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16. ABIL Global: France

A new law to control immigration entered into force on January 26, 2024.

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

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

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

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

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

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

Legislative Changes

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

Talent Passport Residence Permits

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

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

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

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

Regularization of Undocumented Workers in Short-Staffed Professions

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

Olympic Games 2024

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

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

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

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

Absence of Transposition of EU Blue Card Directive

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

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

French authorities had two months to respond and complete the transposition. Failing this, the Commission could issue a reasoned opinion and, in the absence of a response, bring the matter before the EU Court of Justice. As of May 30, 2024, there was no update regarding the transposition of the EU Blue Card Directive into French law, and the Commission had not yet issued its opinion.

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

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New Publications and Items of Interest

Webinar on Farmworker Protection Final Rule: The Department of Labor (DOL) will host a public webinar on Thursday, June 6, 2024, from 1 to 2 p.m. for employers, agricultural associations, farm labor contractors, farmworkers, advocates, and others on changes to the H-2A and Wagner-Peyser Employment Service programs made by the 2024 Farmworker Protection Final Rule. Participants will hear from DOL’s Office of Foreign Labor Certification (OFLC), the Office of Workforce Investment, and the Wage and Hour Division about key aspects of the rule. The Final Rule is effective June 28, 2024. OFLC will begin accepting applications subject to the provisions of the rule on August 29, 2024. OFLC’s announcement is here (scroll to May 21, 2024).

Fact Sheet on I-9 Fine Calculations: Homeland Security Investigations has released a fact sheet for employers on fine calculations for Form I-9, Employment Eligibility Verification.

CIS Ombudsman: New features for case assistance requests. On May 9, 2024, the Citizenship and Immigration Services Ombudsman announced new features “to improve the case assistance request experience.” The new features include updates to the DHS Form 7001, Request for Case Assistance page. For example, the form is now interactive with a progress bar, sections that adapt questions based on answers, alerts for missing information, and a screen for reviewing and editing answers before submitting.

USCIS EB-5 Q&A update. U.S. Citizenship and Immigration Services (USCIS) updated its questions and answers on the EB-5 program in May 2024.

HHS final rule on DACA/noncitizen eligibility for Qualified Health Plans. Effective November 1, 2024, a final rule issued by the Department of Health and Human Services provides that Deferred Action for Childhood Arrivals recipients and certain other noncitizens will be included in the definitions of ‘”lawfully present’” that are used to determine eligibility to enroll in a Qualified Health Plan through an Exchange, for Advance Payments of the Premium Tax Credit and Cost-Sharing Reductions, or for a Basic Health Program.

Immigration agency X (formerly Twitter) accounts:

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

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

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has published several new blog posts: Considerations for Early-Career Scholars and EB-1B Outstanding Researcher/Professor Petitions, Digital Nomad Visa Programs: An APAC Update, and Visa Reconsideration and Fee Waiver for Applicants Impacted by Presidential Proclamation 9645.

Klasko Immigration Law Partners, LLP, has published The Immigration Considerations to Attract and Retain Remote Staff Working Abroad. In the article, Klasko attorneys Tim D’Arduini, Jordan Gonzalez, and Sarah Holler outline the numerous considerations employers must consider when putting together a global remote work policy, from visas and work authorization to tax and labor law considerations.

Charles Kuck was interviewed on NewsNation about border issues. He corrected some facts and put the blame for a broken immigration system on Congress.

Mr. Kuck was quoted by the Atlanta Journal-Constitution in In Atlanta, Long Lines of Migrants Reflect Surge at Border. Commenting on long lines at Atlanta’s U.S. Immigration and Customs Enforcement office, Mr. Kuck said, “I haven’t seen this in 25 years.”

Cyrus Mehta has authored a new blog post: Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected?

Mr. Mehta and Kaitlyn Box have authored several new blog posts: Ethical Obligations of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System After Trump’s Conviction, Saving the Labor Certification for the Backlogged Beneficiary Even After the Job Has Changed, and The Much Neglected Schedule A, Group II Green Card Option Gets a Boost After USCIS Broadens the Sciences and Arts Definition.

David Isaacson, of Cyrus D. Mehta & Associates, PLLC, has authored a new blog post: Harrow v. Department of Defense and What it Means for Immigration Cases: The 30-Day Time Limit for Filing a Petition for Review Is Still Very Important, But Probably Not Jurisdictional Anymore.

Stephen Yale-Loehr and another professor at Cornell Law School have secured a $1.5 million grant from Bay Area humanitarian foundation Crankstart to fund Path2Papers, an innovative nonprofit that provides legal assistance to Deferred Action for Childhood Arrivals (DACA) recipients and DACA-eligible individuals. Based at Cornell Law, Path2Papers offers legal consultations and guidance to DACA-eligible San Francisco Bay-area residents and Cornell students, the Cornell Daily Sun explained. “Path2Papers’ ties to Cornell extend even further. The programs legal team is composed of five lawyers, three of whom are Cornell alumni. It will also be the focus of Cornell Law’s 1L Immigration Law and Advocacy Clinic.” Mr. Yale-Loehr said that DACA’s precarity highlights the importance of Path2Papers’ work. “The DACA program could be terminated by the courts or [a] new administration, [and] many DACA recipients don’t know if they’ll have legal residency options.” Path2Papers has already yielded results, the Daily Sun noted. “Since the program’s launch in January, over 130 DACA or DACA-eligible individuals and employers have registered for a consultation, 50 percent of whom—the Path2Papers’ team has found—are potentially eligible for a work-related visa or green card.”

Mr. Yale-Loehr authored an op-ed, Commentary: A Match Made in New York: Job Openings and Immigrants, published by the Albany, NY Times Union. The article discusses New York’s population outmigration and plethora of job openings and recommends ways to remove obstacles so immigrants can fill them.

Mr. Yale-Loehr was quoted by Univision in Biden’s New Asylum Rule Submitted for Public Comment: These are the Keys. The article (in Spanish, with English translation available) discusses a new proposed rule to allow asylum officers to consider the possible applicability of certain asylum prohibitions and legal withholding of removal during certain credible fear assessments. The measure will be “challenged in courts of law,” Mr. Yale-Loehr said, noting that it is “much more limited than previous ideas that were proposed, such as an executive action that prevents certain people from even entering the United States.” He said the prohibitions authorized during the initial credible fear evaluation stage “will be the subject of a judicial dispute.”

Mr. Yale-Loehr was quoted by Voice of America in Biden Proposal Would Target Some Migrants for Quicker Denial of Asylum. He said the Biden administration is between “a rock and a hard place” and that “the public is demanding immigration changes. The Biden administration seems damned if it tries to do anything to resolve the border crisis and damned if it doesn’t.”

Mr. Yale-Loehr was quoted by Marketplace Morning Report in Biden Administration Rule Will Give DACA Recipients Access to Federal Health Insurance for the First Time. He noted that there are about 600,000 DACA recipients living in the United States now. “The new rule estimates that about 100,000 of them are currently uninsured and can qualify for this kind of health insurance through the Affordable Care Act because of the relatively low incomes they are earning.”

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Government Agency Links

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

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

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

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In this issue:

1. Boycott Florida? Truckers Protest New Law – According to reports, some Latino truckers are threatening to boycott Florida over its passage of a new law. FL 1718, effective July 1, 2023, imposes new penalties and restrictions on undocumented persons and their employers.

2. State Dept. Updates Diversity Visa 2024 Guidance on Document Submission – For the Diversity Visa (DV) program for fiscal year 2024 (DV-2024) and onward, selectees only need initially to submit to the Kentucky Consular Center the DS-260 immigrant visa application form for themselves and any accompanying family members.

3. OFLC Solicits Input for Annual Determination of Labor Supply States – To make a determination regarding labor supply and the positive recruitment needed to reach qualified workers within a state, the Office of Foreign Labor Certification Administrator requests information from the public regarding the availability of qualified workers and the appropriate, effective means of recruiting those workers.

4. Filing Location and Documentation Requirements Changed for Certain Affirmative Asylum Applications – U.S. Citizenship and Immigration Services has changed the filing location and documentation requirements for certain affirmative asylum applications, and will soon release an updated Form I-589, Application for Asylum and for Withholding of Removal.

5. Labor Dept. Requests Comments on Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers – The Department of Labor invites public comments on the information collection request by June 30, 2023.

6. USCIS Releases Filing Tips for Supporters and Beneficiaries of Uniting for Ukraine and for Cubans, Haitians, Nicaraguans, and Venezuelans – U.S. Citizenship and Immigration Services (USCIS) released filing tips for supporters and beneficiaries of Uniting for Ukraine and for Cubans, Haitians, Nicaraguans, and Venezuelans. USCIS said it has been receiving many duplicate filings of Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, and related inquiries.

7. ‘Devastating’ Florida Law Imposes Wide-Ranging Restrictions, New Requirements for Employers – The new law includes many provisions related to employers, including, for example, mandatory E-Verify for private employers with more than 25 employees.

8. State Dept. Delays Effective Date of Consular Fee Rule – The Department of State is delaying until June 17, 2023, the effective date of its rule raising consular fees for most nonimmigrant visas and special visas.

9. OFLC Announces ETA 9089 Case Submission for PERM in FLAG, Requires New Application Form/Process as of June 1 – On May 26, 2023, the Department of Labor’s Office of Foreign Labor Certification announced Form ETA 9089 case submission for PERM in the Foreign Labor Application Gateway, and related technical guidance.

10. ICE Reminds SEVIS Users About Updated Visa Issuance Guidance and Fee Increase – U.S. Immigration and Customs Enforcement issued a broadcast message to all Student and Exchange Visitor Information System users to remind them about updated visa issuance guidance and a fee increase. The fee for student and exchange visitor visas will increase from $160 to $185 on June 17, 2023.

11. Biden Administration Publishes Final Rule on Asylum Ineligibility, Seeks Comments – The Departments of Homeland Security and Justice published a final rule, “Circumvention of Lawful Pathways,” effective May 11, 2023.

12. USCIS Updates Review Process for Cubans, Haitians, Nicaraguans, and Venezuelans – U.S. Citizenship and Immigration Services (USCIS) announced an updated process for granting advance travel authorization for up to 30,000 noncitizen Cubans, Haitians, Nicaraguans, and Venezuelans each month to come to the United States to seek parole on a case-by-case basis. USCIS said that due to high interest, it updated the review process effective May 17, 2023.

13. OFLC Releases Program Statistics, Data, H-2B Labor Recruiter List – The Department of Labor’s Office of Foreign Labor Certification has released public disclosure data and selected program statistics, and updated its H-2B labor recruiter list.

14. EOIR Announces 19 New Immigration Judges – The Department of Justice’s Executive Office for Immigration Review announced the appointment of 19 immigration judges, including one assistant chief immigration judge, to immigration courts in Arizona, California, Illinois, Louisiana, Massachusetts, New York, and Texas.

15. As Title 42 Expired, Biden Administration Released Final Rule on Asylum Ineligibility, Fact Sheet on ‘Additional Sweeping Measures’; Challenges Ensue – The Departments of Homeland Security (DHS) and Justice released a final rule, “Circumvention of Lawful Pathways,” effective May 11, 2023. DHS and the Department of State also released a related fact sheet.

16. June Visa Bulletin Reports India Employment-Based Retrogressions – The Department of State’s Visa Bulletin for June 2023 reports a retrogression for the India EB-5 category and a likely retrogression soon for the India EB-3 category.

17. OFLC Postpones Date for Submitting Revised PERM and CW-1 Forms in FLAG – The Department of Labor’s Office of Foreign Labor Certification is postponing to June 1, 2023, the date for filers to begin submitting the new, revised applications for permanent employment certification and CW-1 applications for temporary employment certification in the Foreign Labor Application Gateway system.

18. CBP No Longer Requires Proof of Vaccination for Air Travelers – As has been recently reported, U.S. Customs and Border Patrol’s Carrier Liaison Program announced that the COVID-19 vaccination requirement for noncitizen nonimmigrant air travelers was terminated as of May 12, 2023.

19. CDC Updates COVID-19 Vaccination Requirements for Civil Surgeons – On May 12, 2023, the Centers for Disease Control and Prevention updated guidance on COVID-19 vaccination requirements for civil surgeons.

20. CIS Ombudsman Releases Tips on Avoiding Delays for F-1 Students Seeking OPT – The Office of the Citizenship and Immigration Services Ombudsman released tips on how F-1 students seeking Optional Practical Training can avoid delays in processing the Form I-765, Application for Employment Authorization.

21. ABIL Global: Canada – Housing shortages have led to political pressures and a new law and regulations that could have a chilling effect on the ability of employers to attract foreign talent.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – June 2023

1. Boycott Florida? Truckers Protest New Law

According to reports, some Latino truckers are threatening to boycott Florida over its passage of a new law. FL 1718, effective July 1, 2023, imposes new penalties and restrictions on undocumented persons and their employers. Among other things, it imposes new E-Verify requirements and specifies that certain driver’s licenses and permits issued by other states exclusively to “unauthorized immigrants” are not valid in Florida.

Details:

• “Truckers Threaten to Boycott Florida Over Immigration Law,” NewsNation (May 16, 2023). https://www.newsnationnow.com/us-news/immigration/truckers-threaten-to-boycott-florida-over-immigration-law/
• ” ‘My Truck Won’t Move.’ Are Truckers Boycotting Florida Over DeSantis’ New Immigration Law?,” Tallahassee Democrat (May 19, 2023). https://www.tallahassee.com/story/news/politics/2023/05/15/florida-trucker-boycott-floridas-strict-new-immigration-law-draws-response/70217625007/
• FL 1718. https://m.flsenate.gov/Session/Bill/2023/1718/BillText/er/PDF

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2. State Dept. Updates Diversity Visa 2024 Guidance on Document Submission

The Department of State (DOS) announced on May 30, 2023, that for the Diversity Visa (DV) program for fiscal year 2024 (DV-2024) and onward, selectees only need initially to submit to the Kentucky Consular Center (KCC) the DS-260 immigrant visa application form for themselves and any accompanying family members. Once a DS-260 is received from the selectee, KCC will review it for completeness and process the data contained in both the application and the entry. After that, the case will be eligible to be scheduled for a visa interview if the selectee’s visa case number is current as reflected in the Visa Bulletin, DOS said.

All supporting documents for DV-2024 selectees will be collected and evaluated in connection with the interview at the embassy or consulate where the visa application is made. DOS said it strongly encourages applicants to be prepared to demonstrate eligibility for the visa at the time of interview by bringing all required documents, which differ by country.

Details:

• Diversity Visa 2024 Update (May 30, 2023). https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-2024-update.html

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3. OFLC Solicits Input for Annual Determination of Labor Supply States

The 2022 H-2A Final Rule, effective November 14, 2022, implemented a new process for the Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator’s determination of labor supply states (i.e., additional states in which an employer’s job order will be circulated and, if appropriate, where additional recruitment may be required). Under that rule, the OFLC Administrator will gather and review public input annually about labor supply and related recruitment mechanisms and will publish a labor supply state determination on the OFLC website. The labor supply state determination will become effective on the date of publication for employers who have not begun recruitment after receiving a Notice of Acceptance. It will remain valid until the OFLC Administrator publishes a new determination on the website.

To make a determination regarding labor supply and the positive recruitment needed to reach qualified workers within a state, the OFLC Administrator requests information from the public regarding the availability of qualified workers and appropriate, effective means of recruiting those workers. Information the OFLC said could be helpful includes, for example:

• The type of qualified workers available (e.g., tomato harvest workers);
• The state and area within the state where the workers may be found (e.g., city, county, regional non-metropolitan area);
• The methods for apprising the workers of a job opportunity (e.g., local newspaper or periodical, posting with a particular community organization engaged with those workers); and/or
• Contact information for the person or entity to be contacted to conduct the recommended recruitment activity.

OFLC seeks this information by July 31, 2023. OFLC will only consider electronic submissions to [email protected].

Details:

• OFLC notice. https://www.dol.gov/agencies/eta/foreign-labor (scroll to May 31, 2023).

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4. Filing Location and Documentation Requirements Changed for Certain Affirmative Asylum Applications

U.S. Citizenship and Immigration Services (USCIS) has changed the filing location and documentation requirements for certain affirmative asylum applications, and will soon release an updated Form I-589, Application for Asylum and for Withholding of Removal.

New Filing Location Details

USCIS has changed the filing location for certain affirmative asylum applications submitted by mail. Applicants should now mail Form I-589 to the lockbox that has jurisdiction over their place of residence, instead of to the service center. If filing by mail, an applicant should file at the appropriate lockbox location to ensure timely receipt of the application. However, USCIS said it will accept Forms I-589 submitted to a service center “until we formalize this change through a Federal Register notice.” See the “Where to File” section of the Form I-589 webpage to learn where to file the application.

Applicants who submit a properly filed Form I-589 to a lockbox will receive two notices: (1) acknowledgement that the lockbox has received and forwarded the Form I-589 to USCIS; and (2) after USCIS accepts the application, a standard Form I-589 receipt notice. Both notices will include the same receipt date that is used to determine eligibility for employment authorization based on a pending asylum application and for purposes of the one-year filing deadline, USCIS said.

The following categories of affirmative asylum applicants must continue to mail their asylum applications directly to the Asylum Vetting Center, following the instructions on the Form I-589 page, USCIS said:

• Loss of Derivative Status After Asylum Approval but Before Adjustment of Status (Nunc Pro Tunc)
• Loss of Derivative Status After Initial Filing but Before Final Decision
• Simultaneous Filing as a Principal Applicant and a Derivative Applicant
• Previously Issued a Final Action by USCIS on a Form I-589
• Previously in Immigration Court Proceedings

USCIS noted that online filing is also available and encouraged for affirmative asylum applicants who are not in immigration court proceedings and who do not have to submit their applications to the Asylum Vetting Center as indicated above.

New Form I-589 and Documentation Requirements

USCIS has published a new edition of Form I-589, dated 03/01/23. Starting July 31, 2023, USCIS will accept only the 03/01/23 edition of the form. Until then, the agency will continue to accept the 10/12/22 edition of Form I-589.

Effective immediately, when submitting the Form I-589, an applicant no longer needs to submit a passport-style photo, multiple copies of the form, or multiple copies of the supporting documentation. See the Instructions for Form I-589 for more information.

Details:

USCIS alert (May 31, 2023). https://www.uscis.gov/newsroom/alerts/uscis-changes-filing-location-and-documentation-requirements-for-certain-affirmative-asylum

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5. Labor Dept. Requests Comments on Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers

The Department of Labor (DOL) is submitting to the Office of Management and Budget for review and approval an Employment and Training Administration (ETA)-sponsored information collection request (ICR) for attestations for employers seeking to employ H-2B nonimmigrant workers. DOL invites public comments on the ICR by June 30, 2023.

The ICR supports the temporary final rule, “Exercise of Time-Limited Authority to Increase the Numerical Limitation for FY 2023 for H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking to Change Employers,” which is being promulgated by DOL and the Department of Homeland Security (DHS).

Details:

• DOL notice of availability, 88 Fed. Reg. 34896 (May 31, 2023). https://www.govinfo.gov/content/pkg/FR-2023-05-31/pdf/2023-11454.pdf

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6. USCIS Releases Filing Tips for Supporters and Beneficiaries of Uniting for Ukraine and for Cubans, Haitians, Nicaraguans, and Venezuelans

U.S. Citizenship and Immigration Services (USCIS) released filing tips for supporters and beneficiaries of Uniting for Ukraine and for Cubans, Haitians, Nicaraguans, and Venezuelans. USCIS said it has received many duplicate filings of Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, and related inquiries. Some potential supporters are filing multiple Forms I-134A for the same beneficiary. “This adds to our workload, which delays processing,” USCIS said, noting that potential supporters who wish to support more than one beneficiary must file one Form I-134A for each beneficiary.

USCIS also has been receiving many Forms I-134A with multiple typos and errors, which also slows processing. Common mistakes include misspelling the beneficiary’s name, incorrect dates of birth, incorrect passport numbers, and incorrect email addresses.

As of January 6, 2023, potential supporters must use the new Form I-134A, instead of Form I-134, Declaration of Financial Support. Those who filed before January 6 do not need to submit a new form.

Details:

• USCIS notice (May 2, 2023). https://www.aila.org/infonet/uscis-provides-filing-tips-for-supporters

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7. ‘Devastating’ Florida Law Imposes Wide-Ranging Restrictions, New Requirements for Employers

FL 1718, effective July 1, 2023, was signed into law by Gov. Ron DeSantis. The legislation specifies that certain driver licenses and permits issued by other states exclusively to “unauthorized immigrants” are not valid in Florida; requires certain hospitals to collect patient immigration status information on admission or registration forms; and requires the Department of Economic Opportunity to enter an order and require repayment of economic development incentives if the department finds or is notified that an employer has knowingly employed an unauthorized person without verifying the employment eligibility of such person, among other provisions.

The new law includes many provisions related to employers. For example, it:

• Requires an employer to verify a new employee’s employment eligibility within 3 business days after the first day the new employee begins working for pay;
• Requires public agencies to use the E-Verify system to verify a new employee’s employment eligibility;
• Requires private employers with more than 25 employees to use the E-Verify system to verify a new employee’s employment eligibility;
• Requires employers to certify use of the E-Verify system on unemployment compensation or reemployment assistance system returns;
• Requires employers to use a certain form if the E-Verify system is unavailable;
• Requires employers to retain specified documentation for a certain number of years;
• Prohibits an employer from continuing to employ an unauthorized noncitizen after obtaining knowledge that a person is or has become unauthorized, with an exception;
• Authorizes specified persons or entities to request, and requires an employer to provide, copies of specified documentation;
• Requires a public agency to require in any contract that a contractor or subcontractor register with and use the E-Verify system;
• Prohibits a public agency, contractor, or subcontractor from entering into a contract unless each party to the contract registers with and uses the E-Verify system; and
• Requires the Florida Department of Economic Opportunity to impose fines against employers under certain circumstances.

The American Immigration Lawyers Association (AILA) noted that “while the full impact of FL 1718 on Florida residents is difficult to quantify, its impact on the state’s economy is likely to be devastating.” AILA cited a 2019 report by the Migration Policy Institute estimating that more than 700,000 undocumented individuals are in the Florida workforce and that almost one in four workers in the construction industry are undocumented. Similarly, AILA noted, a 2021 report by the New American Economy Research Fund estimated that approximately 42 percent of Florida’s farmworkers are undocumented.

The National Immigration Forum said the legislation “is likely to have a detrimental effect on Florida residents and institutions, including the state’s faith community, health care industry, and businesses.”

Details:

• FL 1718. https://m.flsenate.gov/Session/Bill/2023/1718/BillText/er/PDF
• AILA statement (May 22, 2023). https://www.aila.org/infonet/fl-1718-florida-anti-immigrant-legislation
• “Florida’s Immigration Enforcement Legislation: Five Key Concerns,” National Immigration Forum. https://immigrationforum.org/article/floridas-immigration-enforcement-legislation-five-key-concerns/
• Statement From Ron DeSantis. https://flgov.com/2023/05/10/governor-ron-desantis-signs-strongest-anti-illegal-immigration-legislation-in-the-country-to-combat-bidens-border-crisis/

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8. State Dept. Delays Effective Date of Consular Fee Rule

The Department of State (DOS) is delaying until June 17, 2023, the effective date of its rule raising consular fees for most nonimmigrant visas and special visas, published on March 28, 2023. DOS said this was to “provide for a 60-day delay in the effective date after receipt of the final rule in the Congress.”

Under the final rule, most consular service fees will be raised, although the fee increases are smaller than those proposed in the notice of proposed rulemaking due to revised projections for fiscal year (FY) 2022-2024 demand, DOS said.

Below are the adjustments that DOS will implement under the final rule:

• The application processing fee for non-petition-based nonimmigrant visas (NIVs) (except the E category) will increase from $160 to $185.
• The application processing fee for H, L, O, P, Q, and R category NIVs will increase from $190 to $205.
• The processing fee for Border Crossing Cards for Mexican citizens aged 15 and over will increase from $160 to $185.
• The fee for E category NIVs will increase from $205 to $315.
• The fee for the exchange visitor waiver of two-year residency requirement will stay at $120, instead of the proposed $510.

Details:

• DOS final rule, delay of effective date, 88 Fed. Reg. 34084 (May 26, 2023). https://www.govinfo.gov/content/pkg/FR-2023-05-26/pdf/2023-11420.pdf

DOS final rule, 88 Fed. Reg. 18243 (Mar. 28, 2023). https://www.govinfo.gov/content/pkg/FR-2023-03-28/pdf/2023-06290.pdf

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9. OFLC Announces ETA 9089 Case Submission for PERM in FLAG, Requires New Application Form/Process as of June 1

On May 26, 2023, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced Form ETA 9089 case submission for PERM in the Foreign Labor Application Gateway (FLAG), and related technical guidance.

OFLC had previously announced a delay to the date on which it would transition PERM submission and processing to FLAG and concurrently implement the revised Form ETA 9089 (now June 1, 2023). In response to stakeholder requests, OFLC used the delay to work with DOL’s Office of the Chief Information Officer to provide filers the option to link prevailing wage determinations to a PERM application where users no longer have access to the FLAG account from which the prevailing wage request was submitted. Information and guidance on how to use this option is in the addendum to the Form ETA 9089 User Guide on the PERM program page on FLAG.

OFLC noted that filers have been able to use FLAG’s case creation functionality in the PERM module since April 24, 2023. OFLC has received and reviewed numerous help desk inquiries about filing the revised version of Form ETA 9089. OFLC reminded users that it does not provide case-specific guidance on filing procedures and said it “strongly encourages all applicants to review the PERM regulations, the frequently asked questions (FAQs), and the Instructions to the Form ETA 9089 for general guidance. OFLC will continue to review received Help Desk inquiries and will provide additional guidance in the form of new FAQs.”

OFLC said one question has been so common that OFLC believes it should be addressed before full deployment of the PERM module in FLAG “to prevent confusion when filers try to submit PERM applications”:

Q: I’m filling out work experience in Appendix A.E – Foreign Worker Work Experience. What should I enter for the “end date” when the worker is presently working for the employer?

A: You can enter the current month and year for when you’re completing the application. Make sure to select “Yes” to question 1.j. Present.

OFLC added the notice below that users see when they log into their PERM accounts:

Effective May 31, 2023, 7:00 PM Eastern Standard Time, the Office of Foreign Labor Certification will not accept the previous version of Form ETA-9089 electronically or submitted by non-electronic methods (mail, email, or fax). All new versions of Form ETA-9089 must be submitted electronically in the Foreign Labor Application Gateway (FLAG) system after 6:59 PM on May 31, 2023, or by mail with a postmark date June 1, 2023 or later. Go to https://www.dol.gov/agencies/eta/foreign-labor for additional information.

Details:

• OFLC announcements. https://www.dol.gov/agencies/eta/foreign-labor (scroll to May 26, 2023).

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10. ICE Reminds SEVIS Users About Updated Visa Issuance Guidance and Fee Increase

U.S. Immigration and Customs Enforcement (ICE) issued a broadcast message to all Student and Exchange Visitor Information System (SEVIS) users to remind them about updated visa issuance guidance and a fee increase.

The message notes that in February 2023, the Department of State (DOS) provided updated guidance that consular officers can now issue an F or M student visa up to 365 days before an international student’s program start date. The message notes that students can only enter the United States 30 days before the program start date listed on their Form I-20: “Students who attempt to enter the United States more than 30 days before their program start date may be found inadmissible by U.S. Customs and Border Protection.” The message includes details on what students and school officials should confirm before a student arrives at a U.S. port of entry.

The message also reminded SEVIS users that the fee for student and exchange visitor visas would increase from $160 to $185 on May 30, 2023, but a separate rule from the Department of State delayed implementation of this fee increase to June 17, 2023.

Details:

• ICE Broadcast Message: “U.S. Department of State Provides Updated Visa Issuance Guidance,” No. 2305-01 (May 2, 2023). https://www.ice.gov/doclib/sevis/pdf/bcm2305-01.pdf
• “U.S. Department of State Guidance on Visa Issuance FAQ” (n.d.) https://www.ice.gov/doclib/sevis/pdf/VisaGuidance_FAQ.pdf
• DOS guidance (Feb. 21, 2023). https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html
• “Publication of Final Rule on Nonimmigrant Visa Fee Increases,” DOS press release (Mar. 28, 2023). https://www.state.gov/publication-of-final-rule-on-nonimmigrant-visa-fee-increases/

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11. Biden Administration Publishes Final Rule on Asylum Ineligibility, Seeks Comments

On May 16, 2023, the Departments of Homeland Security (DHS) and Justice (DOJ) published a final rule released on May 10, 2023, “Circumvention of Lawful Pathways,” which was effective May 11, 2023. The rule introduces a rebuttable presumption of asylum ineligibility for “certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” The rule applies “only to those who enter during a limited, specified date range at the southwest land border or adjacent coastal borders.”

The Departments request comments by June 15, 2023, on whether the rebuttable presumption should extend to noncitizens who enter the United States at a maritime border without documents during the same temporary time period.

Details:

• “Circumvention of Lawful Pathways,” joint DHS-DOJ final rule, 88 Fed. Reg. 31314 (May 16, 2023). https://www.govinfo.gov/content/pkg/FR-2023-05-16/pdf/2023-10146.pdf

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12. USCIS Updates Review Process for Cubans, Haitians, Nicaraguans, and Venezuelans

On May 18, 2023, U.S. Citizenship and Immigration Services (USCIS) announced an updated process for granting advance travel authorization for up to 30,000 noncitizen Cubans, Haitians, Nicaraguans, and Venezuelans each month to come to the United States to seek parole on a case-by-case basis. USCIS said that due to high interest, it updated the review process effective May 17, 2023.

USCIS noted that the number of supporters who have submitted Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, is “significantly higher than the 30,000 monthly travel authorizations available.” Under the new review process, USCIS will randomly select about half of the monthly total, regardless of filing date, from the entire pending workload of Forms I-134A to determine whether the case can be confirmed. USCIS will review the other half of the monthly total of Forms I-134A “based on when the case was submitted under the first-in, first-out method, which prioritizes the oldest Forms I-134A for review.”

Details:

USCIS alert (May 18, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-review-process-for-the-processes-for-cubans-haitians-nicaraguans-and-venezuelans

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13. OFLC Releases Program Statistics, Data, H-2B Labor Recruiter List

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released public disclosure data and selected program statistics, and updated its H-2B labor recruiter list:

Statistics/Data

The public disclosure data and program statistics were drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2022, through March 31, 2023, reporting period of fiscal year 2023. OFLC has also released selected program statistics for the first quarter of fiscal year 2023 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.

H-2B Labor Recruiter List

The updated list of foreign labor recruiters for the H-2B program includes the name and location of persons or entities identified on Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B applications. The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during October 1, 2022, through March 31, 2023.

Details:

• OFLC announcement. https://www.dol.gov/agencies/eta/foreign-labor (scroll to May 15, 2023).

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14. EOIR Announces 19 New Immigration Judges

On May 12, 2023, the Department of Justice’s Executive Office for Immigration Review (EOIR) announced the appointment of 19 immigration judges, including one assistant chief immigration judge, to immigration courts in Arizona, California, Illinois, Louisiana, Massachusetts, New York, and Texas.

Attorney General Merrick B. Garland appointed Rhana Ishimoto as an assistant chief immigration judge and the following individuals as immigration judges: Maria T. Baldini-Potermin, Vicenta I. Banuelos-Rodriguez, Patrick D. Barrett, Elisa C. Brasil, Yul-mi Cho, Roger H. Dinh, Colin P. Eichenberger, Gabrielle D. Jones, Hannah B. Kubica, Kalenna Lee, Katie G. Mullins, Angela Munro, Nicolas Orechwa, Adrian N. Roe, Lucero M. Saldana Mistry, Jacob J. Stender, Abdias E. Tida, and Jami L. Vigil.

Individuals interested in these positions are invited to sign up for job alerts that are sent when new immigration judge job opportunities become available.

Details:

• EOIR notice (includes biographical information on each appointee) (May 12, 2023). https://tinyurl.com/yskxjs7j

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15. As Title 42 Expired, Biden Administration Released Final Rule on Asylum Ineligibility, Fact Sheet on ‘Additional Sweeping Measures’; Challenges Ensue

The Departments of Homeland Security (DHS) and Justice (DOJ) released a final rule on May 10, 2023, “Circumvention of Lawful Pathways,” which was effective May 11, 2023, and published May 16, 2023. DHS and the Department of State (DOS) also released a related fact sheet.

DHS/DOJ Final Rule

The rule introduces a rebuttable presumption of asylum ineligibility for “certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” The rule “will apply only to those who enter during a limited, specified date range at the southwest land border or adjacent coastal borders.” Specifically, the rule applies to noncitizens who enter the United States without authorization from Mexico at the southwest land border or adjacent coastal borders on or after the date of termination of the Title 42 public health order, May 11, 2023, and before a specified date 24 months from the rule’s effective date. However, the rule will continue to apply to such noncitizens who entered the United States during the 24-month timeframe in their Title 8 proceedings and in any subsequent asylum applications, except for those applications filed after the two-year period by those who entered the United States as minors and who apply as principal applicants, the rule states.

The Departments requested comments on whether applicability of the rebuttable presumption should be extended to noncitizens who enter the United States without documents sufficient for lawful admission during the same temporary time period at a maritime border.

DHS/DOS Fact Sheet

The DHS/DOS fact sheet, released May 10, 2023, announced “additional sweeping measures” to manage the border as part of the “comprehensive, multi-agency, multi-country plan to prepare for the return to processing migrants under Title 8 authorities.” The measures include:

• Opening the first regional processing centers to direct individuals to lawful pathways, with eventual plans to open about 100 such centers in key locations in the Western Hemisphere;
• Deploying additional troops to support the Border Patrol at the southwest border;
• Surging additional resources to manage increased encounters;
• Expanding access to the CBPOne app and transitioning to a new appointment scheduling system;
• Implementing the final rule noted above; and
• Ramping up efforts to counter misinformation disseminated by smugglers.

In related news, a federal judge granted Florida’s request for a temporary restraining order blocking the Biden administration’s plan to release certain migrants on parole. Also, the American Civil Liberties Union and immigration groups sued to block the new asylum limits.

Details:

• “Circumvention of Lawful Pathways,” joint DHS-DOJ final rule (advance copy). https://public-inspection.federalregister.gov/2023-10146.pdf
•  “Department of State and Department of Homeland Security Announce Additional Sweeping Measures to Humanely Manage Border through Deterrence, Enforcement, and Diplomacy,” DHS fact sheet. https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border
• “Federal Judge Blocks Biden Move to Release Migrants on ‘Parole’ Ahead of Title 42 End,” The Hill (May 12, 2023). https://thehill.com/regulation/court-battles/4001528-federal-judge-blocks-biden-move-to-release-migrants-on-parole/
• Florida v. Mayorkas, temporary restraining order (May 11, 2023). https://storage.courtlistener.com/recap/gov.uscourts.flnd.464923/gov.uscourts.flnd.464923.10.0.pdf

“ACLU Sues to Block New Asylum Restrictions,” The Hill (May 12, 2023). https://thehill.com/homenews/administration/4001833-aclu-sues-to-block-new-asylum-restrictions/

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16. June Visa Bulletin Reports India Employment-Based Retrogressions

The Department of State’s (DOS) Visa Bulletin for June 2023 reports a retrogression for the India EB-5 category and a likely retrogression soon for the India EB-3 category:

Steady number use and high demand in the EB-3 category for India will most likely necessitate retrogression of the EB-3 final action date for India as early as next month to hold number use within the maximum allowed under the FY 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

As readers were informed was possible in Item F of the May 2023 Visa Bulletin, it has become necessary to retrogress the EB-5 final action date for India effective in June. India’s number use in the family and employment preference categories for FY 2023 is subject to prorating under INA § 202(e). Number use has been consistently robust throughout the fiscal year in the family and employment preference categories, and it has been determined that India is approaching its prorated limit for EB-5 numbers. Thus, applicants from India are subject to a final action date of 01APR17. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Details:

• DOS Visa Bulletin for June 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-june-2023.html

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17. OFLC Postpones Date for Submitting Revised PERM and CW-1 Forms in FLAG

The Department of Labor’s Office of Foreign Labor Certification (OFLC) postponed to June 1, 2023, the date for filers to begin submitting the new, revised applications for permanent employment certification and CW-1 applications for temporary employment certification in the Foreign Labor Application Gateway (FLAG) system.

Details:

• OFLC announcement. https://www.dol.gov/agencies/eta/foreign-labor (scroll to May 11, 2023).

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18. CBP No Longer Requires Proof of Vaccination for Air Travelers

As has been recently reported, U.S. Customs and Border Patrol’s (CBP) Carrier Liaison Program announced on May 11, 2023, that under a Presidential Proclamation, the COVID-19 vaccination requirement for noncitizen nonimmigrant air travelers was terminated as of May 12, 2023.

The rescission took effect for flights departing to the United States from a foreign country on or after 12:01 am ET on May 12, 2023. Noncitizen nonimmigrant air passengers no longer must show proof of being fully vaccinated with an accepted COVID-19 vaccine to board a flight to the United States, CBP said.

Details:

• “Rescinding Requirement for Proof of Covid-19 Vaccination for All Airline or Other Aircraft Passengers Arriving into the United States From any Foreign Country,” CBP (May 11, 2023). https://www.aila.org/infonet/cbp-no-longer-requires-proof-covid-19-vaccination
• “A Proclamation on Revoking the Air Travel COVID-19 Vaccination Requirement,” White House (May 9, 2023). https://www.whitehouse.gov/briefing-room/presidential-actions/2023/05/09/a-proclamation-on-revoking-the-air-travel-covid-19-vaccination-requirement/

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19. CDC Updates COVID-19 Vaccination Requirements for Civil Surgeons

On May 12, 2023, the Centers for Disease Control and Prevention (CDC) updated guidance on its Immigrant, Refugee, and Migrant Health webpage on COVID-19 vaccination requirements for civil surgeons:

• The applicant must receive one dose of the COVID-19 vaccine if a dose is due at the time of the exam according to current CDC guidance. Additional doses are no longer required, and applicants do not have to postpone completion of the exam to complete the primary series of the COVID-19 vaccine.
• Applicants who have completed any approved primary COVID-19 series before the exam require no additional COVID-19 doses for immigration. Those who have not yet done so should receive a bivalent vaccine.
• Applicants who have received one or more doses but have not completed the primary series and are not yet due for the next dose in the series at the time of the exam should use the “Insufficient time interval between doses” blanket waiver.

Details:

• COVID-19 Vaccination Requirement, CDC (May 12, 2023). https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons/vaccinations.html#covid-19-vaccination

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20. CIS Ombudsman Releases Tips on Avoiding Delays for F-1 Students Seeking OPT

The Office of the Citizenship and Immigration Services (CIS) Ombudsman released tips on how F-1 students seeking Optional Practical Training (OPT) can avoid delays in processing the Form I-765, Application for Employment Authorization. The tips include:

• Check USCIS’ website for updates before you submit Form I-765.
• Make sure Form I-20, Certification of Eligibility for Nonimmigrant Student Status, is signed, dated, and endorsed for employment authorization.
• Apply online.
• Submit Form I-765 within 30 days or 60 days of the Date Issued by the Designated School Official on the Form I-20.
• Submit a properly completed Form I-20 together with Form I-765 at the same time.
• Update your mailing address with both USCIS and the U.S. Postal Service (USPS)

Details:

• “How F-1 Students Seeking Optional Practical Training Can Avoid Form I-765 Delays,” CIS Ombudsman. https://www.dhs.gov/sites/default/files/2023-05/How%20F-1%20Students%20Seeking%20OPT%20Can%20Avoid%20Form%20I-765%20Delays.pdf

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21. ABIL Global: Canada

Housing shortages have led to political pressures and a new law and regulations that could have a chilling effect on the ability of employers to attract foreign talent.

Canada is welcoming more immigrants than ever before. Last year was a record year for processing immigration applications. In 2022, Canada welcomed a record-breaking 431,000 new permanent residents, surpassing the record of 405,000 set in 2021. This number is expected to grow to half a million by 2025. Canadians used to fear immigrants stealing their jobs, but these days some Canadians are concerned that newcomers will take their homes.

The housing shortage has become an acute problem, primarily due to a significant shortage of workers in construction and supporting trades, and a shortage of construction materials. The increase in both temporary and permanent newcomers is also fueling greater demand for housing, and in turn resentment and fear of newcomers.

The federal government could have addressed the housing shortage with sound immigration policy—specifically, to regularize those workers without status in Canada who were already working in construction trades, and to facilitate the selection of construction trade workers as temporary workers and new immigrants. Current immigration policy favors applicants with post-secondary education and strong English or French language skills, which most construction trade workers lack. Immigration Refugee Citizenship Canada (IRCC) might also have considered reducing the number of foreign students admitted to Canada as this category of temporary residents has ballooned since 2015, and many will not have a path to permanent residence in any event. The federal government seems to lack the political will to address many issues related to the foreign student program, likely because the foreign student industry is big business.

Instead, the government of Canada passed the Prohibition On the Purchase of Residential Property by Non-Canadians Act (the Act), a new law supposedly to help make more homes affordable for people living in Canada. This law has a serious negative implication for newcomers to Canada, in addition to seriously impeding the ability to attract talent to Canada to address labor shortages. The Act came into force on January 1, 2023, and prevents non-Canadians (those who are neither Canadian citizens nor permanent residents of Canada) from buying residential property in Canada for two years, including preventing non-Canadians from using corporate structures to avoid the prohibition. The Act defines residential property as buildings with three homes or fewer, as well as parts of buildings like a semi-detached house or a condominium unit. The law does not prohibit the purchase of larger buildings with multiple units. The Act includes a $10,000 fine for any non-Canadian or anyone who knowingly assists a non-Canadian and is convicted of violating the Act. Further, if a court finds that a non-Canadian has done this, they may order the sale of the house.

Clearly the prohibition could have a chilling effect on the ability of Canadian businesses to attract foreign talent, especially when combined with provincial legislation that taxes the purchase of residential properties by foreign nationals. In Ontario, that tax is 25 percent of the value of the property, although the foreign national can apply for a tax rebate if they become a permanent resident within four years of making the purchase. The regulations under the Act set out specific exceptions. These exemptions included properties in very rural locations, but unfortunately few foreign workers and immigrants settle in rural areas. Initially, when enacted on January 1, 2023, foreign workers who held a work permit or were authorized to work under section 186 of the Immigration Refugees Protection Regulations, and had worked in Canada a minimum of three years within the four years preceding the year in which the purchase was made, filed income tax returns, and had not purchased more than one residential property, were exempted.

A ban targeting foreign home buyers will not necessarily prevent speculation in real estate markets, especially since nonresidents only make up 2.2 percent of residential property owners in Ontario and 3.1 percent in British Columbia. Newcomers have to live somewhere, so if they are prohibited from buying a home, they will rent a house or apartment and potentially take up valuable living space for Canadians who may not be able to afford to buy and must rent. Rents in Canada have increased by 10 percent on average across Canada in the last year.

Amendments to the regulations allow more flexibility in certain circumstances. Work permit holders can now purchase residential property, for example, as long as they have 183 days or more of validity remaining on their work permit at the time of purchase and have not purchased more than one residential property. The initial requirements for tax filings and previous work experience in Canada were repealed. They are still subject to any applicable provincial tax.

For many foreign nationals living in Canada temporarily, becoming a permanent resident of Canada is a priority. Without permanent resident status, they may still be subject to the Act and/or provincial taxes. Typically, most foreign nationals do not qualify for permanent residence until they have worked in Canada for a Canadian company for at least one year. Further, there is no ability to apply for permanent residence at will; instead, applicants must be invited to apply for permanent residence by IRCC. Consequently, there is a great deal of uncertainty around qualifying and when to apply for permanent residence, which makes it difficult to provide newcomers with any assurance about their eligibility to buy residential property in Canada without restrictions. Foreign workers should seek legal advice from a Canadian lawyer about their eligibility for permanent residence soon after they arrive in Canada.

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New Publications and Items of Interest

Agency Twitter accounts:

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

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

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

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ABIL Member / Firm News

Charles Foster was awarded the title of “Dean Emeritus” by the Executive Committee of the Consular Corps of Houston for his services as interim and acting Dean of the Consular Corps of Houston in recent years. He is also the Honorary Consul-General of the Kingdom of Thailand. Mr. Foster is the chairman of Foster LLP. His law practice focuses primarily on representing multinational companies and foreign investors in U.S. immigration law matters.

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) authored a new blog post: “The Unintended Consequences of USCIS’ New ‘Family Reunification Program.’ ” https://www.immigration.net/2023/05/17/the-unintended-consequences-of-usciss-new-family-reunification-program/

Mr. Kuck was quoted by Atlanta News First in “Georgia Immigration Attorney Discusses Impacts of Title 42 Expiring.” He discussed the processes in place for migrants arriving at the southern border, including being detained “for a hearing generally in a phone booth at a detention center,” removal if they can’t prove a credible fear of persecution if returned to their home countries, or asylum processing if they can prove a credible fear. “After they have filed their asylum application, they can file for a work permit…when that work permit comes, typically [for] about six months they can work. Which means that for these open jobs, employers here in Georgia [will] now have workers to do those jobs,” he said. At the next court date, Mr. Kuck said, migrants “are required to bring evidence and if you don’t have evidence other than a suspicious story, you’re not going to win asylum.” https://www.atlantanewsfirst.com/2023/05/10/georgia-immigration-attorney-discusses-impacts-title-42-expiring/

Mr. Kuck was quoted by 11Alive in “Title 42 Ending, Georgia Getting Ready for Expected Increase in Migrants Across Southern Border.” He said, “What will happen? You will see videos of lots of people coming to the border, thousands of them, because they’ve been lining up in Mexico for weeks in anticipation of the much built-up end of Title 42. And we will see a massive surge because the one thing that nobody is talking about is—why are there so many people at the border all of a sudden? And it’s because we have unprecedented levels of refugee crises in Latin America that we’ve never seen in our history. So, the migrants are not generally Mexicans coming in. These are from Central and South America, where crises in their own countries are compelling them to come forward.” He said that without Title 42 restrictions, “people will again start to be deported to their home countries. They’re going to deport you back to Peru, or they’re going to deport you back to Colombia. This enables that process. And that’s the message that needs to be delivered to those countries. Desiring a better life is not asylum. You will not be allowed to stay in the U.S. if just wanting a better life is why you’re coming to America.” https://www.11alive.com/article/news/local/georgia-prepares-for-additional-migrants/85-9f0e3835-e53f-486e-8398-edc2b19bdd8b

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) authored a new blog post: “Remembering Mark Von Sternberg Through Matter of Recinas.” http://blog.cyrusmehta.com/2023/05/remembering-mark-von-stenberg-through-matter-of-recinas.html

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Although Section H.10-B Has Disappeared in the New ETA-9089, Will Its Ghost Continue to Haunt Us?,” http://blog.cyrusmehta.com/2023/06/although-section-h-10-b-has-disappeared-in-the-new-eta-9089-will-its-ghost-continue-to-haunt-us.html; “Kellogg Has Reared its Ugly Head in the New Labor Certification Fork: How Do We Deal With Alternate Requirements?,” http://blog.cyrusmehta.com/2023/05/kellogg-has-reared-its-ugly-head-in-the-new-labor-certification-form-how-do-we-deal-with-alternate-requirements.html; and “Answering Tricky Questions on the Revised Labor Certification Form on Dual Representation and Familial Relationships,” http://blog.cyrusmehta.com/2023/05/answering-tricky-questions-on-the-revised-labor-certification-form-on-dual-representation-and-familial-relationships.html

Mr. Mehta and Jessica Paszko co-authored a new blog post: “Termination in the Twilight Zone When the I-485 Application Has Been Pending for Less Than 180 Days.” http://blog.cyrusmehta.com/2023/05/termination-in-the-twilight-zone-when-the-i-485-application-has-been-pending-for-less-than-180-days.html

Bernard Wolfsdorf (bio: https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) and Naveen Bhora co-authored a new blog post: “DV Green Card Lottery Results Out. Hoorah!” https://wolfsdorf.com/dv-green-card-lottery-results-out/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by CBS News in “Trump Vows to End Birthright Citizenship for Children of Undocumented Immigrants If He Wins in 2024.” Mr. Yale-Loehr said, “Any executive action that a president might try to end birthright citizenship would be challenged in court and would be likely struck down as unconstitutional.” He noted, however, that “it’s pretty clear that, for political purposes, he thinks that this kind of announcement will appeal to his base. It shows that he has anti-immigration credentials. And most of his voters don’t know or don’t care about whether such an executive order would be legal.” https://www.cbsnews.com/colorado/news/trump-birthright-citizenship-children-unauthorized-immigrants/?intcid=CNM-00-10abd1h

Mr. Yale-Loehr coauthored an op-ed in The Hill with Jacob Hamburger, an incoming visiting assistant professor at Cornell Law School. The op-ed, “To Address the Migration Crisis, State Governments Should Hire the Migrants,” concerns the controversy over the migrant influx in New York City and other large cities. The op-ed suggests that states can and should employ recent migrant arrivals without violating federal immigration law. Mr. Yale-Loehr and Mr. Hamburger propose that states create a new Migrant Empowerment Corps, modeled after the Depression-era Civilian Conservation Corps. https://thehill.com/opinion/immigration/4030557-to-address-the-migration-crisis-state-governments-should-hire-the-migrants/

Mr. Yale-Loehr and Jacob Hamburger also coauthored an op-ed in Slate: “Biden Will Never Get Us Out of the Trump Era Like This.” https://slate.com/news-and-politics/2023/05/biden-immigration-asylum-border-title-forty-two-covid.html

Mr. Yale-Loehr was quoted by New York Daily News in “Texas Judge Hears Arguments in Challenge to Revised DACA Policy.” He predicted that if the Texas case makes it to the Supreme Court, the court would not issue a final ruling before June 2025: “Litigation takes time. No one should worry that the DACA program is going to end tomorrow.” https://www.nydailynews.com/news/politics/us-elections-government/ny-daca-challenge-texas-judge-hears-arguments-20230602-t7bo6xbinzbgxiw5vpse2ed6ue-story.html

Mr. Yale-Loehr was quoted in a Weill Cornell Medicine press release about recent commentary in a medical journal that he coauthored calling for equal access to health care for Deferred Action for Childhood Arrivals recipients. https://news.weill.cornell.edu/news/2023/06/commentary-calls-for-equal-access-to-healthcare-for-daca-recipients-and-all-immigrants (a slightly different version was published in Mirage News: https://www.miragenews.com/commentary-urges-equal-healthcare-access-for-1019415/

Mr. Yale-Loehr was quoted by Univision in “Biden Government Defends Family Separations at the Border in Court During Trump.” Mr. Yale-Loehr said, “The forced separation of families during the Trump administration violated the due process rights of families. Many of them are now suing the United States government for damages. The forced separation also set a bad precedent, both for future presidents and for the leaders of other countries who might try the same thing.” https://www.univision.com/noticias/inmigracion/gobierno-biden-defiende-tribunales-separaciones-forzadas-trump-frontera (Spanish)

Mr. Yale-Loehr was quoted by the Washington Post in “Tim Scott Hypes ‘Terrorist Watch List’ Border Crossings.” Commenting on remarks by Republican presidential candidate Tim Scott that “hundreds of people” have been crossing the southern border into the United States, Mr. Yale-Loehr said that the phrase “crossing our borders” was an exaggeration. “They were caught at the border, either at a port of entry or between a port of entry. So perhaps ‘caught attempting to cross the border’ would be more accurate.” He also noted that not everyone on the watch list is a terrorist. https://www.washingtonpost.com/politics/2023/05/24/tim-scott-hypes-terrorist-watch-list-border-crossings/ (available by subscription)

Mr. Yale-Loehr was quoted by CNY Central in ” ‘We Welcome Immigrants,’ Cornell Professor Says Influx of Migrants Could Improve Economy.” Among other things, Mr. Yale-Loehr said, “I would say we welcome immigrants, we want them to come properly, we want them to come legally. I would co-sign Governor Hochul’s letter to the federal immigration agency urging them to decide these work permit applications [more quickly], and I would also urge New York State to appropriate more money to help counties on immigration generally.” He said that “the people need to think about the fact that these migrants are actually going to help the economies of upstate New York or wherever else. “We have a job shortage in New York State, and there are many jobs these migrants can do…we should be welcoming them with open arms.” Video and article: https://cnycentral.com/news/local/we-welcome-immigrants-cornell-professor-says-influx-of-migrants-could-improve-economy

Mr. Yale-Loehr was quoted by the Associated Press in “Video Prompts False Claims That Soldier Allowed Migrants to Cross Border Illegally.” Mr. Yale-Loehr dismissed as “ludicrous” claims that soldiers’ actions that were videotaped in Eagle Pass, Texas, and widely circulated violated 8 U.S.C. §§ 1324 and 1327. He said § 1327 is a “rarely-used provision” prohibiting people from aiding certain criminal and subversive foreign nationals from entering the country, and § 1324, the other statute mentioned in comments posted on the video, penalizes people who “harbor” undocumented migrants. Mr. Yale-Loehr suggested the bus people were boarding was likely destined for the nearest Border Patrol station where the migrants would be screened, processed, and detained, as is the agency’s protocol. They aren’t simply being let free as claimed, he noted. “The video doesn’t show any effort to harbor or hide undocumented migrants. Claims that federal officials are simply letting migrants enter the U.S. illegally are unfounded.” https://apnews.com/article/fact-check-immigration-border-texas-title-42-919121412226

Mr. Yale-Loehr was interviewed by several media outlets about immigration policy changes:

• “Immigration Expert Expects New Asylum Policy to be Challenged in Court,” Scripps News. Mr. Yale-Loehr said, “If you do enter the United States illegally, you will be presumed ineligible for asylum [under the new post-Title 42 Biden administration asylum rule] with certain limited exceptions. They want people instead to use this new CBP One app to schedule asylum interviews and then have the interviews at the ports of entry. So, they’re hoping that by the combination of parole, the refugee processing centers, and the CBP One app, people will do things legally. And this new rule then penalizes those who try to enter the United States illegally.” He also said “[w]e need to have an approach that realizes that we can only manage the border. We can’t ever stop all illegal immigration, but we also need to have Congress enact more work visas so the people who do want to come to the United States temporarily can do so legally and won’t be tempted to enter illegally.” https://www.10news.com/news/national/immigration-expert-expects-new-asylum-policy-to-be-challenged-in-court
• “Migrant Crisis Explained: Where Do We Go From Here?,” Fox 5 NY News. Mr. Yale-Loehr said, “Our immigration system has not changed, but the world has changed.” He noted that there is no quick fix to asylum backlogs and border issues. “Yes, we do need to try to manage our border. The second prong would be to provide more work visas for people who do want to come and work so they can do so legally … And the third prong is to legalize the estimated 10 million people in the United States who lack authorization right now.” https://www.fox5ny.com/news/migrant-crisis-explained-where-do-we-go-from-here
• A video of Mr. Yale-Loehr’s remarks is at https://www.10news.com/news/national/immigration-expert-expects-new-asylum-policy-to-be-challenged-in-court

Mr. Yale-Loehr was quoted in several media outlets about the end of Title 42:

• “White House, States, Congress Look for Immigration Solutions as Title 42 Ends,” United Press International. Mr. Yale-Loehr said, “Too many people will want to enter, and there won’t be enough Border Patrol agents to prevent a surge of illegal entries.” He said that just and comprehensive immigration reform, which is unlikely in the current sharply divided Congress, would include more work visas “so that people who want to work temporarily in the U.S. could enter legally rather than illegally.” He also said he believes that the estimated 10 million undocumented people in the United States should be legalized “so that they can come out of the shadows.” And, finally, he said effective border security must be realized: “It is like three legs of a stool: All three legs are necessary for effective reform.” https://www.upi.com/Top_News/US/2023/05/11/title-42-immigration/6881683740849/
• “Biden Decides to Limit Access to Asylum at the Border With Mexico,” Brazilian Mail (Correio Braziliense). Mr. Yale-Loehr explained that as part of the end of Title 42, the Biden administration is implementing a new rule under which anyone who enters the United States without authorization will be considered ineligible for asylum. “The authorities want people to use the new app, called CBP One, for scheduling asylum interviews at ports of entry. It’s a way to legally apply for asylum,” he said. Mr. Yale-Loehr predicted “chaos and confusion at the border at first.” https://www.correiobraziliense.com.br/mundo/2023/05/5093570-biden-decide-limitar-acesso-a-asilo-na-fronteira-com-o-mexico.html (in Portuguese with English translation available)

Mr. Yale-Loehr was quoted by BollyInside in “Miami’s Real Estate Community Concerned About Negative Effects of DeSantis-Supported Bills: ‘This Will Be Painful.’ ” Limiting the buying power of foreign nationals from several nations in the United States “could be a real blow to [the EB-5 immigrant investor] program,” he said. https://www.bollyinside.com/news/real-estate/miamis-real-estate-community-concerned-about-negative-effects-of-desantis-supported-bills-this-will-be-painful/

Below are ABIL Members and their partners/associates listed in Who’s Who Legal: Corporate Immigration 2023 (https://whoswholegal.com/analysis/corporate-immigration-2023—legal-marketplace-analysis):

EUROPE-MIDDLE EAST-AFRICA

Global Elite Thought Leaders:

Laura Devine – Laura Devine Immigration, London, UK

Ana Garicano – Sagardoy Abogados, Madrid, Spain

Gunther Mävers – michels.pmks Rechtsanwälte Partnerschaft mbB, Cologne, Germany

Marco Mazzeschi – Mazzeschi – Corporate Immigration and Citizenship Law, Milan, Italy

Nicolas Rollason – Kingsley Napley, London, UK

Karl Waheed – Karl Waheed Avocats, Paris, France

Leading Firms:

Kingsley Napley, London, UK

Laura Devine Solicitors, London, UK

Flynn Hodkinson, London, UK

Other Leading Individuals:

BELGIUM: Bernard Caris – Younity, Brussels, Belgium

FRANCE: Karl Waheed – Karl Waheed Avocats, Paris, France

GERMANY: Gunther Mävers – michels.pmks Rechtsanwälte Partnerschaft mbB, Cologne, Germany

GERMANY: Bettina Offer – Offer & Mastmann, Frankfurt, Germany

ITALY: Marco Mazzeschi – Mazzeschi – Corporate Immigration and Citizenship Law, Milan, Italy

NETHERLANDS: Jelle Kroes – Kroes Advocaten Immigration Lawyers, Amsterdam, Netherlands

SPAIN: Ana Garicano – Sagardoy Abogados, Madrid, Spain

SWITZERLAND: Nina Perch-Nielsen – Blue Lake Legal, Zurich, Switzerland

TURKEY: Maria Celebi – Bener Law Office, Istanbul, Turkey

NORTH AMERICA

Global Elite Thought Leaders:

Barbara Jo Caruso – Corporate Immigration Law Firm, Toronto, Canada

Ronald Klasko – Klasko Immigration Law Partners, Philadelphia, United States

Charles Kuck – Kuck Baxter Immigration, Atlanta, United States

Cyrus Mehta – Cyrus D Mehta & Partners, New York, United States

Angelo Paparelli – Los Angeles, United States

Gregory Siskind – Siskind Susser, Memphis, United States

William Stock – Klasko Immigration Law Partners, Philadelphia, United States

Bernard Wolfsdorf – Wolfsdorf Rosenthal, Santa Monica, United States

Stephen Yale-Loehr – Miller Mayer LLP, Ithaca, United States

Leading Firms:

Klasko Immigration Law Partners, United States

Foster, United States

Wolfsdorf Rosenthal, United States

Other Leading Individuals:

CANADA: Barbara Jo Caruso – Corporate Immigration Law Firm, Toronto, Canada

U.S.: Cyrus Mehta – Cyrus D Mehta & Partners, New York, NY, United States

U.S.: Charles Kuck – Kuck Baxter Immigration, Atlanta, GA, United States

U.S.: Stephen Yale-Loehr – Miller Mayer LLP, Ithaca, NY, United States

U.S.: Gregory Siskind – Siskind Susser, Memphis, TN, United States

U.S.: Ira Kurzban – Kurzban Kurzban Tetzeli & Pratt, Coral Gables, FL, United States

U.S.: Vincent Lau – Clark Lau, Boston, MA, United States

U.S.: Vic Goel – Goel & Anderson, Reston, VA, United States

U.S.: Marketa Lindt – Sidley Austin, Chicago, IL, United States

U.S.: Rami Fakhoury – Fakhoury Global Immigration, Troy, MI, United States

ASIA-PACIFIC

Global Elite Thought Leaders:

Phillip Yip – Phillip Yip & Associates, Sydney, Australia

Other Leading Individuals:

AUSTRALIA: Phillip Yip – Phillip Yip & Associates, Sydney, Australia

HONG KONG: Eugene Chow – Chow King & Associates, Wanchai, Hong Kong

LATIN AMERICA

Global Elite Thought Leaders:

Ariel Orrego-Villacorta – AOV Abogados, Lima, Peru

Other Leading Individuals:

COLOMBIA: Rodrigo Tannus Serrano – Tannus & Asociados, Bogota, Colombia

PERU: Ariel Orrego-Villacorta – AOV Abogados, Lima, Peru

The following ABIL members, and members of ABIL firms, were listed in LawDragon’s 2023 list of 100 leading immigration lawyers:

Delisa Bressler – Foster – Austin, TX

Helene Dang – Foster – Houston, TX

Corina Farias – Foster – Austin

Charles Foster – Foster – Houston, TX

Ronald Klasko – Klasko Immigration Law Partners – Philadelphia, PA

Ira Kurzban – Kurzban Kurzban – Coral Gables, FL

Avalyn Langemeier – Foster – Houston, TX

Marketa Lindt – Sidley – Chicago, IL

Robert Loughran – Foster – Austin, TX

John Meyer – Foster – Austin, TX

Dorothee Mitchell – Foster – Austin, TX

Farshad Owji – WR Immigration – San Francisco, CA

Angelo Paparelli – Vialto Law – Los Angeles, CA

Jose Perez – Foster – Houston

John Pratt – Kurzban Kurzban – Coral Gables, FL

Edward Ramos – Kurzban Kurzban – Coral Gables, FL

Kimberley Best Robidoux – WR Immigration – San Diego, CA

William Stock – Klasko Immigration Law Partners – Philadelphia, PA

Helena Tetzeli – Kurzban Kurzban – Coral Gables, FL

Bernard Wolfsdorf – WR Immigration – Santa Montica, CA

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Government Agency Links

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

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

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

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In this issue:

1. Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only, under the recently announced H-2B supplemental cap temporary final rule.

2. USCIS Releases New Forms for EB-5 Immigrant Investor Program – U.S. Citizenship and Immigration Services has released two new forms under the EB-5 Reform and Integrity Act of 2022.

3. SEVIS Update: COVID-19 Guidance Extended for Nonimmigrant Students – U.S. Immigration and Customs Enforcement’s March 2020 guidance continues for the 2022-23 academic year only for nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to the Student and Exchange Visitor Program’s existing regulations regarding online learning.

4. CBP Expands Biometric Facial Recognition Technology at U.S. International Airports – Travelers arriving at an international airport in the United States will pause for a photo at the primary inspection point. U.S. travelers and foreign nationals who are not required to provide biometrics and wish to opt out of the new biometric process can notify a CBP officer as they approach the primary inspection point.

5. Public Charge Resources Webpage Updated – Among other updates, a question-and-answer section addresses concerns and misconceptions about the public charge ground of inadmissibility.

6. Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications – A group of investment and capital firms filed a lawsuit against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022.

7. USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions – U.S. Citizenship and Immigration Services is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

8. DOL Clarifies Method of Contacting AFL-CIO Required Under Rule Increasing Number of H-2B Visas Available in Second Half of FY 2022 – Examples of how to contact the AFL-CIO, as provided in a temporary final rule, include emailing or mailing the job order, along with a request for assistance to recruit workers, to the appropriate AFL-CIO office.

9. DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications – The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the Wage and Hour Division may implement.

10. Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year – The visas are for U.S. employers seeking to employ additional temporary nonagricultural workers on or after April 1, 2022, through September 30, 2022.

11. DHS Announces TPS Designation, Registration Process for Afghans – The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible.

12. June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability – Among other things, the bulletin notes that high number use in the Employment Third Preference “Other Workers” category has necessitated the establishment of a worldwide final action date in June.

13. Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border – The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.

14. New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program – USCIS published two new forms for regional center designation under the EB-5 Immigrant Investor Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027. The agency held a related listening session and released a Q&A, and members of Congress sent a letter to the Department of Homeland Security.

15. Foreign Labor Certification Updates – The Department of Labor’s Office of Foreign Labor Certification announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations.

16. USCIS Corrects Eligibility Date on South Sudan TPS-Based EADs – USCIS corrected “September 17, 2021” to “May 2, 2022” as the eligibility date that should be showing on South Sudan temporary protected status-based employment authorization documents (EADs) to receive an automatic 180-day EAD extension through November 1, 2022.

17. New Lockbox Filing Location Updates Webpage – USCIS launched a new webpage with lockbox filing location updates.

18. State Dept. Updates Visa Reciprocity Schedule for Kenya – On May 9, 2022, the Department of State updated the visa reciprocity schedule for Kenya for several nonimmigrant visa categories.

19. USCIS Increases Automatic Work Permit Extension Period for Certain Applicants – USCIS announced a temporary final rule, effective May 4, 2022, that increases to up to 540 days the automatic extension period for work authorization and Employment Authorization Documents (EADs) available to certain EAD renewal applicants. The rule is expected to affect approximately 87,000 workers who have filed for renewal of their work authorization and whose 180-day automatic extension periods have expired or are about to expire.

20. State Dept. Appeals Four Court Orders on Diversity Visa Adjudications and Processing – The Department of State released a statement summarizing four court orders regarding the reservation of numbers for and/or adjudication of DV-2020 and DV-2021 diversity visas, and announcing that it is appealing the orders “because the Department believes the courts misinterpreted the law.”

21. Case Processing Info Changes Announced – Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types.

22. CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders – To reduce wait times, U.S. Customs and Border Protection is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.

23. ABIL Global: Schengen Area – This article discusses how to calculate the 90/180-days allowance for non-European Union nationals traveling to Schengen countries, and the new Electronic Entry System.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – June 2022

1. Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022

U.S. Citizenship and Immigration Services (USCIS) announced on May 31, 2022, that it has received enough petitions to reach the cap for the additional 23,500 visas made available for returning workers only, under the recently announced H-2B supplemental cap temporary final rule, which increased by up to 35,000 the cap for additional H-2B nonimmigrant visas through the end of fiscal year (FY) 2022.

The random selection, completed on May 27, included all H-2B cap-subject petitions filed under the H-2B returning worker allotment that were received between May 19 and May 25. Petitions accepted for processing will have a receipt date of May 31, 2022.

USCIS said that petitioners whose workers were not selected for the 23,500 returning worker allotment “are encouraged to refile for workers from El Salvador, Guatemala, Honduras and Haiti while visas for that allotment remain available.” The final date for filing petitions for nationals of those countries who are exempt from the returning worker requirement is September 15, 2022, or when the cap is reached, whichever occurs first.

The agency will continue to accept H-2B petitions for workers filing under the El Salvador, Guatemala, Honduras, and Haiti allotment, as well as those that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

• “Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022,” USCIS alert, May 31, 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

• “Temporary Increase in H-2B Nonimmigrant Visas for FY 2022,” USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2022

• “DHS and DOL Announce Availability of Additional H-2B Visas for Second Half of Fiscal Year,” USCIS news release, May 16, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-second-half-of-fiscal-year

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2. USCIS Releases New Forms for EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) has released two new forms under the EB-5 Reform and Integrity Act of 2022. The new forms are:

• Form I-956F, Application for Approval of an Investment in a Commercial Enterprise
• Form I-956G, Regional Center Annual Statement

USCIS explained that Form I-956F can only be filed by an approved regional center. Form I-956F is similar in some respects to an “exemplar” submission on Form I-924 under the previous program; however, Form I-956F is required by statute for regional centers to apply for approval of each particular investment offering through an associated new commercial enterprise. Form I-956G takes the place of Form I-924A from the previous program but incorporates the increased statutory reporting requirements.

The next series of forms to be released are Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. USCIS will notify stakeholders once these forms are available.

Effective June 2, 2022, Forms I-956F and I-956G must be submitted in compliance with new program requirements. The filing fee is $17,795 for Form I-956F and $3,035 for Form I-956G.

Details:

• USCIS alert, June 2, 2022, https://www.uscis.gov/newsroom/alerts/uscis-releases-new-forms-for-immigrant-investor-program

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3. SEVIS Update: COVID-19 Guidance Extended for Nonimmigrant Students

U.S. Immigration and Customs Enforcement (ICE) released guidance regarding distance learning to all Student and Exchange Visitor Information System (SEVIS) users to clarify that its March 2020 guidance continues for the 2022-23 academic year only for nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to the Student and Exchange Visitor Program’s existing regulations regarding online learning.

The March 2020 guidance “enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19,” ICE said.

Details:

• “Broadcast Message: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year,” ICE, May 31, 2022, https://www.ice.gov/doclib/sevis/pdf/bcm2205-03.pdf

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4. CBP Expands Biometric Facial Recognition Technology at U.S. International Airports

U.S. Customs and Border Protection (CBP) has expanded biometric facial comparison technology at all international airports across the United States under the “Simplified Arrival” process. CBP said that this expansion complements biometric boarding at select departure locations.

Travelers arriving at an international airport will pause for a photo at the primary inspection point. A CBP officer will review and query the travel document, which will retrieve the traveler’s passport or visa photo from government holdings and compare it to the new photo. CBP said the process “takes a few seconds and is more than 98% accurate.”

CBP said that U.S. travelers and foreign nationals who are not required to provide biometrics and wish to opt out of the new biometric process can notify a CBP officer as they approach the primary inspection point. These travelers must present a valid travel document for inspection by a CBP officer and will be processed consistent with existing requirements for admission into the United States.

CBP explained that “Simplified Arrival” is an enhanced international arrival process that uses facial biometrics to automate the manual document checks required for admission into the United States. The process fulfills a Congressional mandate to biometrically record the entry and exit of non-U.S. citizens. Foreign travelers who have traveled to the United States previously “may no longer need to provide fingerprints, as their identity will be confirmed through the touchless facial biometric process.” CBP said that more than 171 million travelers have participated in the biometric facial comparison process at air, land, and sea ports of entry.

Details:

• CBP media release, June 2, 2022,

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5. Public Charge Resources Webpage Updated

U.S. Citizenship and Immigration Services (USCIS) has updated its public charge resources webpage “with more information to help reduce undue fear and confusion among immigrants and their families, including U.S. citizens and their children, that may prevent them from obtaining access to critical government services available to them.”

A question-and-answer section addresses concerns and misconceptions about the public charge ground of inadmissibility. For example, USCIS does not consider vaccines or public benefits specifically related to the COVID-19 pandemic when making public charge determinations. “We encourage everyone, including noncitizens, to seek necessary medical care, including treatment or preventive services for COVID-19. Noncitizens may seek pandemic-related benefits and services (including food assistance, housing programs, and others) for which they are eligible—without fear of negative consequences to their immigration status.”

The updated content also “clarifies that relatively few noncitizens in the United States are both subject to the public charge ground of inadmissibility and eligible for the public benefits considered under the 1999 Interim Field Guidance, including Supplemental Security Income, Temporary Assistance for Needy Families, and programs (including Medicaid) supporting noncitizens who are institutionalized for long-term care at government expense,” USCIS said.

Details:

• USCIS alert, June 3, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-public-charge-resources-webpage-to-provide-information-on-the-public-charge-ground-of

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6. Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications

A group of investment and capital firms filed a lawsuit on May 24, 2022, against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services (USCIS) decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022, which was signed into law following a lapse in authorization for the EB-5 Regional Center Program. Plaintiffs say that by categorically decertifying more than 600 existing EB-5 regional centers and requiring them to recertify, USCIS “eviscerated” the program and determined that a wholly new regional center program was created rather than following congressional intent to reauthorize the program with a few changes and allow existing regional centers to continue their work.

Alleging that USCIS’s action was “unlawful for a host of reasons,” plaintiffs said the agency’s action meant that “all existing regional centers, which already have billions of dollars in invested capital, ongoing development projects, and investors awaiting adjudication of their visa petitions, must effectively pause all revenue-generating operations (while still maintaining regulatory obligations to existing investors) indefinitely until USCIS approves their new applications. At current processing rates, it will take well over a decade for more than 600 programs to become redesignated.”

Plaintiffs are represented by H. Ronald Klasko and Daniel B. Lundy, of Klasko Immigration Law Partners LLP, and Paul W. Hughes, Andrew A. Lyons-Berg, and Alex C. Boota, of McDermott Will & Emery LLP.

This is the second lawsuit challenging USCIS’s claim that all regional centers must be redesignated. A preliminary injunction hearing in Behring Regional Center LLC v. Mayorkas, No. 3-22-cv-02487-VC (N.D. Cal.), will be held June 2.

Details:

• EB5 Capital v. DHS, May 24, 2022,
• “DHS ‘Decimated’ EB-5 Visa Capital Firms, Investors Say,” Law360, May 24, 2022, https://www.law360.com/articles/1496566/dhs-decimated-eb-5-visa-capital-firms-investors-say (registration required)

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7. USCIS To Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions

U.S. Citizenship and Immigration Services (USCIS) is implementing premium processing for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This expansion of premium processing applies only to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS said. Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

USCIS said the expansion will occur in phases:

• Beginning June 1, 2022, USCIS is accepting Form I-907 requests for E13 multinational executive and manager petitions received on or before January 1, 2021.
• Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1, 2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
• USCIS will continue working toward premium processing availability of additional Form I-140 petitions, Form I-539, and Form I-765 in fiscal year 2022.

USCIS said it will reject premium processing requests for these Form I-140 classifications that were filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request.

For the month of June, USCIS will accept both the 09/30/20 and the 05/31/22 editions of Form
I-907. Starting July 1, the agency will reject the older 09/30/20 edition of Form I-907.

Details:

• USCIS alert, May 24, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form-i-140

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8. DOL Clarifies Method of Contacting AFL-CIO Required Under Rule Increasing Number of H-2B Visas Available in Second Half of FY 2022

A temporary final rule issued by the Department of Labor (DOL) on May 18, 2022, included additional recruitment requirements for certain employers. One such requirement is that where the occupation or industry is traditionally or customarily unionized, “the employer must contact (by mail, email or other effective means) the nearest American Federation of Labor and Congress of Industrial Organizations [AFL-CIO] office covering the area of intended employment and provide written notice of the job opportunity, by providing a copy of the job order placed … and request assistance in recruiting qualified U.S. workers for the job.”

Examples of such contact provided in the rule include emailing or mailing the job order, along with a request for assistance to recruit workers, to the appropriate AFL-CIO office. To aid employers who must conduct this additional recruitment step, one effective means of contacting the nearest AFL-CIO office covering the area of intended employment is to email the job order and request for assistance to [email protected] or contacting the national AFL-CIO by mail at:

AFL-CIO
Attn: H-2B
815 Black Lives Matter Plaza, NW
Washington, DC  20005

DOL said that when received, the agency will distribute these materials to the most appropriate local AFL-CIO office serving the area of intended employment for that job opportunity. DOL said employers “are encouraged to contact the AFL-CIO using the email or mailing address above, though contact directly with the AFL-CIO office covering the area of intended employment is also acceptable. Employers are reminded to retain documentation of contact with the AFL-CIO as required.”

Details:

• DOL announcement, May 27, 2022, https://www.dol.gov/agencies/eta/foreign-labor
• Temporary final rule, 87 Fed. Reg. 30334 (May 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-18/pdf/2022-10631.pdf

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9. DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications

The Department of Labor’s Wage and Hour Division (WHD) released a bulletin to the field regarding employment of H-2B workers in unapproved job classifications (i.e., a job classification not listed on the Application for Temporary Employment Certification (TEC), Form ETA-9142B). The memo notes that such employment violates the requirement that employers may not place H-2B workers in positions not listed on the TEC application.

The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the WHD may implement.

Details:

• “Employment of H-2B Workers in a Job Classification Not Listed on the TEC Application (Form ETA-9142B) in the H-2B Visa Program,” DOL/WHD Field Assistance Bulletin No. 2022-3, Apr. 13, 2022, https://www.dol.gov/sites/dolgov/files/WHD/fab/2022-3.pdf

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10. Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced a temporary final rule making available an additional 35,000 H-2B temporary nonagricultural worker visas during the second half of fiscal year (FY) 2022. The visas are for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers. The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022.

In support of the temporary final rule, the Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-6 and accompanying instructions. The TFR requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. This attestation must be submitted to U.S. Citizenship and Immigration Services along with Form I-129 in support of an H-2B application subject to the H-2B cap by September 30, 2022.

Details:

• USCIS news release, May 16, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-second-half-of-fiscal-year
• DHS/DOL temporary final rule, 87 Fed. Reg. 30334 (May 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-18/pdf/2022-10631.pdf
• DOL forms, including Attestation for Employers, https://www.dol.gov/agencies/eta/foreign-labor/forms

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11. DHS Announces TPS Designation, Registration Process for Afghans

The Department of Homeland Security has provided information on how to register for temporary protected status (TPS) under Afghanistan’s 18-month designation. The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible for TPS under the designation of Afghanistan.

To be eligible for TPS under this designation, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and continuous physical presence in the United States since May 20, 2022. Afghan nationals currently not residing in the United States or who arrived in the United States after March 15, 2022, are not eligible for TPS under this designation.

DHS said that through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis for humanitarian reasons for a period of two years and received work authorization. These individuals may also be eligible for TPS.

Details:

• Designation of Afghanistan for Temporary Protected Status, DHS (USCIS), 87 Fed. Reg. 30976 (May 20, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-20/pdf/2022-10923.pdf
• USCIS news release, May 19, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-announces-registration-process-for-temporary-protected-status-for-afghanistan
• “Secretary Mayorkas Designates Afghanistan for Temporary Protected Status,” DHS, Mar. 16, 2022, https://www.dhs.gov/news/2022/03/16/secretary-mayorkas-designates-afghanistan-temporary-protected-status

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12. June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability

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

1. Establishment of Employment Third Preference “Other Workers” (EW) Final Action Date

High number use in the Employment Third Preference “Other Workers” (EW) category has necessitated the establishment of a worldwide final action date in June to hold number use within the maximum allowed under the FY-2022 annual limit. All countries are subject to a final action date of 08MAY19 except for China-mainland born, which is subject to a 01JUN12 final action date and India, which is subject to a 15JAN12 final action date.

1. Establishment of C5 and T5 Final Action Date and Application Filing Date for China-Mainland Born

It has become necessary to establish a final action date and application filing date for C5 and T5 China-mainland born because sufficient demand has materialized as readers were cautioned was a possibility in Item D of the May 2022 Visa Bulletin. China-mainland born C5 and T5 applicants are subject to a 22NOV15 final action date and an application filing date of 15DEC15.

1. Availability of Diversity Visas (DV)

Most regions have been set to “Current” for June 2022 in an effort to maximize number use during the DV-2022 program year. However, rank cut-offs could be re-established for any region or country in future months to keep number use within the applicable annual limits.

Details:

• Dept. of State Visa Bulletin for June 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-june-2022.html

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13. Federal Judge Blocks Effort to End Title 42 Policy at U.S.-Mexico Border

Shortly before the Centers for Disease Control (CDC) was set to terminate its Trump-era COVID-19 pandemic restriction at the U.S.-Mexico border, known as “Title 42,” a federal judge in Louisiana blocked its termination temporarily with a nationwide preliminary injunction. The judge found that several dozen Republican-led states were likely to prevail on their claims against terminating the policy based on the Administrative Procedure Act, and noted that termination would negatively affect plaintiff states and the Department of Homeland Security. He concluded that the policy should continue while the states’ lawsuit proceeds.

The Department of Justice plans to appeal the decision while enforcing the Title 42 policy pending appeal.

Details:

• State of Louisiana v. CDC, https://s3.documentcloud.org/documents/22026721/title-42-preliminary-injunction.pdf
• “Federal Judge Blocks Biden Administration From Lifting Title 42 for Now,” CNN, May 20, 2022, https://www.cnn.com/2022/05/20/politics/title-42-biden-us-mexico-border/index.html

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14. New Forms, New Program Requirements Announced for Entities Seeking Regional Center Designation Under EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) published two new forms for regional center designation under the EB-5 Immigrant Investor Program: Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program. USCIS said that all entities seeking regional center designation must submit these forms in compliance with new program requirements, which began May 14, 2022, and are effective through September 30, 2027.

Below are highlights of related news:

• USCIS said it will continue to adjudicate Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and will adjudicate Form I-829 petitions associated with Form I-526, Immigrant Petition by Alien Entrepreneur, filed before March 15, 2022, under the applicable eligibility requirements in place before enactment of the EB-5 Reform and Integrity Act of 2022.
• USCIS said it also has resumed processing of regional center-based Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before the sunset of the previous regional center program on June 30, 2021. The agency 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 will continue to reject all Form I-526 petitions received on or after July 1, 2021, when the petition indicates that the petitioner’s investment is associated with a regional center.
• The filing fee for the I-956 is $17,795. (No, that’s not a typo.) There is no filing fee for the I-956H, but a biometric services fee of $85 per person is required. Filing and biometric service fees are final and nonrefundable, regardless of any action USCIS takes on the application, or if the applicant withdraws the request. USCIS will reject the form if the applicant submits an incorrect fee.
• The agency released a related Q&A and held a “Listening Session” on April 29, 2022, that received negative reviews.
• Four senior members of Congress sent a letter on May 9, 2022, to the Department of Homeland Security (DHS). Among other things, the letter calls for DHS to confirm compliance with the new integrity measures required under the EB-5 Reform and Integrity Act of 2022 “without the need for a full-scale redesignation of existing regional centers.” The letter recommends a “transition” to avoid administrative burdens for the agency and “unnecessary complications to designated regional centers who have remained in good standing with USCIS and complied with the rules even during the program’s lapse.” The letter says, “Current guidance on the USCIS website requiring new regional center designations for every existing regional center is confusing and causing great concern in the EB-5 stakeholder community. We believe that there should be stakeholder engagement and then guidance on the implementation of the program.” The letter notes that an interpretation requiring new regional center designations would “result in all existing investors without approved conditional permanent residency facing denial.” The letter was signed by Rep. Jerrold Nadler (D-NY) and Sens. Chuck Schumer (D-NY), John Cornyn (R-TX), and Lindsey Graham (R-SC).

Details:

• USCIS alert, https://www.uscis.gov/newsroom/alerts/two-new-forms-published-for-regional-center-designation
• USCIS alerts, EB-5 Immigrant Investor Program, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program
• USCIS Q&A (EB-5 Questions and Answers, updated April 2022), https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-questions-and-answers-updated-april-2022
• EB-5 Reform and Integrity Act of 2022 (H.R. 2471, Consolidated Appropriations Act, 2022), https://www.congress.gov/bill/117th-congress/house-bill/2471/
• USCIS EB-5 Reform and Integrity Act of 2022 Listening Session, https://www.uscis.gov/outreach/notes-from-previous-engagements/uscis-eb-5-reform-and-integrity-act-of-2022-listening-session

• Listening Session remarks by Ur Jaddou, USCIS Director, Apr. 29, 2022, https://www.uscis.gov/sites/default/files/document/outreach-engagements/EB-5_Reform_and_Integrity_Act_of_2022_Listening_Session.pdf

• Form I-956, Application for Regional Center Designation, https://www.uscis.gov/i-956
• Form I-956H, Bona Fides of Persons Involved with Regional Center Program, https://www.uscis.gov/i-956
• “USCIS Drops Bombshell EB-5 Q&A Hours Before One-Sided, Overwhelmingly Negative “Listening Session,” Investment Migration Insider, May 3, 2022, https://www.imidaily.com/program-updates/uscis-drops-bombshell-eb-5-qa-hours-before-one-sided-overwhelmingly-negative-listening-session/

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15. Foreign Labor Certification Updates

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced updates to public disclosure data and selected program statistics; the H-2B Foreign Labor Recruiter List; and tips and assistance for stakeholders filing applications for prevailing wage determinations. Below are highlights.

Public disclosure data and selected program statistics for Q2 of fiscal year (FY) 2022. The OFLC released a comprehensive set of public disclosure data through the second quarter of FY 2022. The OFLC drew the data from employer applications requesting prevailing wage determinations and labor certifications for the PERM, Labor Condition Application (LCA) (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The files include all final determinations OFLC issued for these programs during the October 1, 2021, through March 31, 2022, reporting period of FY 2022. OFLC also released selected program statistics for Q2 of FY 2022 for the same programs. https://www.dol.gov/agencies/eta/foreign-labor/performance

H-2B Foreign Labor Recruiter List for Q2 of FY 2022. The OFLC published an updated list of foreign labor recruiters for the H-2B program. The list contains the name and location of persons or entities identified on Appendix C of the Form ETA-9142B that were hired by, or working for, the recruiter that employers have indicated they engaged, or planned to engage, in the recruitment of prospective H-2B workers to perform the work described on their H-2B application. The H-2B Foreign Labor Recruiter List includes only those names and locations associated with H-2B applications that were processed or issued a final decision during the October 1, 2021 through March 31, 2022. https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list (Foreign Labor Recruiter List); https://www.dol.gov/agencies/eta/foreign-labor/faqs/print (FAQs)

Tips and assistance for stakeholders filing applications for prevailing wage determinations. The OFLC hosted a webinar on April 19, 2022, providing tips and assistance for stakeholders on the process of filing Form ETA-9141, Application for Prevailing Wage Determination, for the PERM and LCA programs. The recording and presentation materials are linked via the Prevailing Wage Information and Resources page (scroll down to Webinars). https://www.dol.gov/agencies/eta/foreign-labor/wages

Details:

• OFLC announcements, https://www.dol.gov/agencies/eta/foreign-labor

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16. USCIS Corrects Eligibility Date on South Sudan TPS-Based EADs

U.S. Citizenship and Immigration Services (USCIS) issued a correction on May 10, 2022, to its notice on the extension and redesignation of South Sudan for temporary protected status (TPS), which was published on March 3, 2022. Under the “General Employment-Related Information for TPS Applicants and Their Employers” section of the original notice, USCIS corrected “September 17, 2021” to “May 2, 2022” as the eligibility date that should be showing on South Sudan TPS-based employment authorization documents (EADs) to receive an automatic 180-day EAD extension through November 1, 2022.

Details:

• USCIS notice/correction, 87 Fed. Reg. 28030 (May 10, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-10/pdf/2022-10018.pdf

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17. New Lockbox Filing Location Updates Webpage

U.S. Citizenship and Immigration Services (USCIS) launched a new webpage with lockbox filing location updates. For example, the webpage notes that:

• On May 2, 2022, USCIS updated the filing locations for applicants filing Form I-821, Application for Temporary Protected Status, under the designation for Ukraine.
• On May 9, 2022, USCIS added the filing locations for certain applicants filing Form I-765, Application for Employment Authorization, under eligibility category (c)(14) (a noncitizen granted deferred action).
• On May 15, 2022, USCIS added the filing locations for applicants filing Form I-956, Application for Regional Center Designation, and Form I-956H, Bona Fides of Persons Involved with Regional Center Program, to request designation as a regional center.

Details:

• USCIS Lockbox Filing Location Updates, updated May 10, 2022, https://www.uscis.gov/forms/forms-updates/lockbox-filing-location-updates

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18. State Dept. Updates Visa Reciprocity Schedule for Kenya

On May 9, 2022, the Department of State updated the visa reciprocity schedule for Kenya for several nonimmigrant visa categories.

Details:

• Reciprocity: What’s New?, Dept. of State, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/reciprocity-whats-new.html
• Kenya Reciprocity Schedule, https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country/Kenya.html

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19. USCIS Increases Automatic Work Permit Extension Period for Certain Applicants

U.S. Citizenship and Immigration Services (USCIS) announced a temporary final rule, effective May 4, 2022, that increases to up to 540 days the automatic extension period for work authorization and Employment Authorization Documents (EADs) available to certain EAD renewal applicants.

USCIS said the increased extension period “will help avoid gaps in employment for noncitizens with pending EAD renewal applications and stabilize the continuity of operations for U.S. employers.” The rule is expected to affect approximately 87,000 workers who have filed for renewal of their work authorization and whose 180-day automatic extension periods have expired or are about to expire.

USCIS released the following details:

• The TFR, which only applies to those EAD categories currently eligible for an automatic 180-day extension, will temporarily provide up to 360 days of additional automatic extension time (for a total of 540 days) to eligible applicants with a timely filed Form I-765 renewal application pending during the 18-month period after publication of the temporary final rule “while USCIS continues to work through pending caseloads that were exacerbated by the COVID-19 pandemic,” USCIS said. Beginning October 27, 2023, automatic extensions of employment authorization and EAD validity will revert to the up-to-180-day period for eligible applicants who timely file Form I-765 renewal applications.
• Noncitizens with a pending EAD renewal application whose 180-day automatic extension has lapsed and whose EAD has expired will be granted an additional period of employment authorization and EAD validity, beginning on May 4, 2022 and lasting up to 540 days from the expiration date of their EAD, such that they may resume employment if they are still within the up to 540-day automatic extension period and are otherwise eligible. Noncitizens with a pending renewal application still covered under the 180-day automatic extension will be granted an additional up to 360-day extension, for a total of up to 540 days past the expiration of the current EAD. Noncitizens with a pending renewal application and valid EAD on May 4, 2022, or who timely file an EAD renewal application before October 27, 2023, will be granted an automatic extension of up to 540 days if their EAD expires before the renewal application is processed.
• The automatic extension generally will end upon notification of a final decision on the renewal application or the end of the up-to-540-day period (i.e., up to 540 days after the expiration date on the applicant’s facially expired EAD), whichever comes earlier.
• Certain noncitizens who are in the United States may file a Form I-765, Application for Employment Authorization, with USCIS to request employment authorization and an EAD. Other noncitizens whose immigration status authorizes them to work in the United States without restrictions may also use Form I-765 to apply for an EAD that shows such authorization.
• Systematic Alien Verification for Entitlements (SAVE) will generally verify employment authorization or this EAD auto-extension as part of initial verification. Additional verification may be required in limited instances such as when the applicant’s data provided by the user agency does not match federal immigration records.

Details:

• USCIS news release, May 3, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-increases-automatic-extension-period-of-work-permits-for-certain-applicants
• “DHS Publishes Rule Temporarily Increasing Automatic Extension Period of Employment Authorization and/or EADs for Certain Individuals” (includes information on documentation benefit applicants will have whose work authorization and/or EADs are extended up to 540 days), USCIS (SAVE), May 4, 2022, https://www.uscis.gov/save/whats-new/dhs-publishes-rule-temporarily-increasing-automatic-extension-period-of-employment-authorization
• “Automatic Employment Authorization Document (EAD) Extension,” USCIS, updated May 4, 2022, https://www.uscis.gov/eadautoextend
• USCIS temporary final rule, 87 Fed. Reg. 26614 (May 4, 2022), https://www.govinfo.gov/content/pkg/FR-2022-05-04/pdf/2022-09539.pdf
• “USCIS Issues New Rule on Employment Authorization,” Forbes, https://www.forbes.com/sites/stuartanderson/2022/05/03/uscis-issues-new-rule-on-employment-authorization/?sh=9f27ebd10b13

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20. State Dept. Appeals Four Court Orders on Diversity Visa Adjudications and Processing

The Department of State (DOS) released a statement summarizing four court orders regarding the reservation of numbers for and/or adjudication of DV-2020 and DV-2021 diversity visas, and announcing that it is appealing the orders “because the Department believes the courts misinterpreted the law.”

DOS explained that while the appeal is pending, the courts have granted stays with respect to adjudicating visas from prior years, meaning that “the Department is not required to adjudicate visas from prior years until the appeals court issues its decision.” DOS explained that the courts, however, required the Department to complete the systems modifications necessary to process DV cases from prior years, which DOS said it will do in compliance with the orders.

DOS said it will publish additional public guidance regarding these cases “should it be necessary to do so.”

Details:

• DOS news release, May 3, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-2020-and-2021-updates.html

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21. Case Processing Info Changes Announced

U.S. Citizenship and Immigration Services (USCIS) announced changes to case processing information available online. Users can now immediately find processing time information for their particular type of case rather than seeing an aggregate of all related case types. Additional changes include:

• Adding drop-down options for form categories to help narrow results to the processing times that are relevant to a case;
• Adding a case inquiry tool where the user can insert their receipt date and get an immediate answer on whether they should contact USCIS with questions about their particular case; if so, benefit requestors will be provided a link to submit a case inquiry online;
• Displaying a single 80^th-percentile processing time (rather than a range) to simplify the information provided and improve the ability of users to estimate how long it is likely to take USCIS to process a benefit request; and
• Revising, streamlining, and adding more content to the processing times webpages, including a new FAQ page.

Details:

• USCIS news release, May 5, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-simplifying-improving-communication-of-case-processing-data

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22. CBP Urges Travelers to Apply for I-94 Online Before Arriving at U.S. Land Borders

To reduce wait times, U.S. Customs and Border Protection (CBP) is urging travelers who require a Form I-94, Arrival/Departure Record, to apply and prepay online before arriving at a U.S. land border.

An I-94 is needed by all visitors except U.S. citizens, returning residents, those with immigrant visas, and most Canadian citizens visiting or in transit. Travelers are issued an I-94 during the admission process at the port of entry.

Details:

• CBP release, Apr. 29, 2022,
• Travel information, CBP, https://www.cbp.gov/travel
• Advisories and wait times, CBP, https://www.cbp.gov/travel/advisories-wait-times

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23. ABIL Global: Schengen Area

This article discusses how to calculate the 90/180-days allowance for non-European Union nationals traveling to Schengen countries, and the new Electronic Entry System.

How to Count Your 90 Days

Non-European Union (EU) visitors can stay in the Schengen countries for maximum of 90 days in any 180-day period, but the calculation is not easy.

The Schengen area currently includes 26 EU countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The scannable QR code below leads to EU Migration and Home Affairs, which includes visa policy information and lists of countries whose citizens must have a visa or are exempt from visa requirements when crossing Schengen external borders.

Third-country nationals (e.g., those who are not citizens of the EU and Iceland, Norway, Liechtenstein, or Switzerland), irrespective of being visa-required or exempt, who intend to travel to the Schengen area for a short trip for business or tourism can stay for a maximum of 90 days in any 180-day period. A few terms and rules apply:

Date of entry: The first day of stay on the territory of the Schengen Member State

Date of exit: The last day of stay in the Schengen Area

This applies only to short-term visitors. Periods of stay authorized under a residence permit or a long-stay visa are not taken into account in the calculation of the duration of stay on the territory of the Member States.

Reference to “any 180-day period” implies the application of a “moving” 180-day reference period, looking backwards at each day of the stay (be it at the entry or at the day of an actual check), into the last 180-day period, to verify if the 90-days/180-day-period requirement continues to be fulfilled.

As noted above, calculation is often not easy. The EU has created an online calculator.

New Entry/Exit System

The new Entry/Exit System (EES), to be operational in 2022, will automatically identify those who overstay their periods of admission. It will collect identity information and the date and place of entry and exit. The EES will apply to non-EU nationals, visa-required and visa-exempt travelers in the Schengen area. It will replace manual stamping of passports.

Details:

• “How to Count Your Schengen 90 Days,” Medium, https://medium.com/studiomazzeschi/how-to-count-your-schengen-90-days-ee96f5d25326
• Entry/Exit System (EES), Migration and Home Affairs, European Commission, https://ec.europa.eu/home-affairs/policies/schengen-borders-and-visa/smart-borders/entry-exit-system_en

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New Publications and Items of Interest

USCIS public engagement on Afghanistan TPS. U.S. Citizenship and Immigration Services (USCIS) will hold a public engagement on temporary protected status for Afghanistan on Thursday, June 16, 2022, from 2-3 p.m. ET. USCIS will provide an overview of the TPS designation and hold a question-and-answer session. To register, visit the USCIS registration page, enter your email address and select “Submit,” then select “Subscriber Preferences,” “Questions,” complete the questions, and select “Submit” again.

Employment authorization document (EAD) extension calculator. U.S. Citizenship and Immigration Services has launched an EAD Automatic Extension Calculator. The calculator will “calculate the new EAD expiration date for eligible employees” affected by an automatic extension for certain renewal applicants from up to 180 days to up to 540 days. https://www.uscis.gov/i-9-central/form-i-9-resources/employment-authorization-document-ead-automatic-extension-calculator

National Visa Center Public Inquiry telephone line suspended. The National Visa Center (NVC) has suspended its public inquiry telephone line. The suspension “will not impede any essential functions of NVC,” the Department of State said. The announcement includes tips for interacting with NVC. https://travel.state.gov/content/travel/en/News/visas-news/nvc-public-inquiry-telephone-line-suspension.html

“Eligible to Naturalize” factsheets. U.S. Citizenship and Immigration Services has released fact sheets providing information on the “eligible to naturalize” population, including select characteristics of people with lawful permanent resident status in several areas. https://www.uscis.gov/news/all-news/fact-sheets (scroll to May 16, 2022)

Readout on backlog reduction. U.S. Citizenship and Immigration Services held a virtual public engagement on May 18, 2022, with nearly 2,000 stakeholders nationwide on the agency’s efforts to reduce backlogs and improve processing times. USCIS updated participants on the agency’s recently announced initiatives to use all available regulatory, policy, and operational tools to reduce backlogs and processing times, including the expansion of premium processing, providing timely access to employment authorization documents, and further reducing the agency’s pending caseload. https://www.uscis.gov/newsroom/news-releases/readout-of-national-public-engagement-on-backlog-reduction

Effects of long visa processing delays on tourism and business travelers. On May 9, 2022, Bloomberg Law published “Tourism Industry Rebound Hampered by Long Visa Processing Delays.” The article notes that international travel to the United States is not expected to return to pre-pandemic levels until 2024 at the earliest, in large part because of long visa wait times in some of the largest markets for international travel to the United States. For example, the article notes, as of May 2022 inbound travelers can expect to wait 702 days in Guadalajara, Mexico; 354 days in Sao Paulo, Brazil; and 643 days in Bogota, Colombia. International visitors “typically make up about half of business and tourist travel to the Miami area,” two-thirds of which is from South American countries. Securing visas through the Department of State “has become a major hurdle for international tourists and business travelers, foreign workers, and immigrants seeking family-based green cards,” the article states. https://news.bloomberglaw.com/daily-labor-report/tourism-industry-rebound-hampered-by-long-visa-processing-delays

Ukrainian-language “Uniting for Ukraine” information. U.S. Citizenship and Immigration Services provided information in Ukrainian on the “Uniting for Ukraine” program, under which the Department of Homeland Security (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. https://www.uscis.gov/newsroom/alerts/uscis-nadae-informaciyu-schodo-ednannya-zaradi-ukraini (Ukrainian); https://www.uscis.gov/newsroom/alerts/uscis-provides-information-on-uniting-for-ukraine (English)

Agency Twitter accounts:

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

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

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

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ABIL Member / Firm News

1. Ronald Klasko, of Klasko Immigration Law Partners, LLP, will speak on the EB-5 panel at the Investment Migration Forum, sponsored by the Investment Migration Council. Global leaders in investment migration from more than 40 countries will be speaking and attending the forum to be held June 6-9, 2022, in Brussels, Belgium. https://investmentmigration.org/forum/

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

• Partner José Pérez and Attorney Melissa Cantu will present in a Foster webinar, “Basics of Family-Based Immigration,” on Wednesday, June 15, 2022. The webinar will provide HR professionals with a basic understanding of family-based immigration. HR professionals can expect to learn about family-based visas, and issues facing U.S. citizens and lawful permanent residents who wish to reunite with their families. https://attendee.gotowebinar.com/register/4939537719342625549
• Pérez will speak on a panel, “Foreign/Mexican Investments in the Texas Business Markets,” at the U.S.-Mexico Real Estate Investment Summit on Thursday, June 9, 2022. REBS Dallas will bring together executives representing real estate funds, institutional investors, developers, real estate brokers, consultants, attorneys, and academics, as well as government officials and other representatives of the business and financial communities of Texas and Mexico. https://rebs.mx/

IMMpact Immigration Litigation, created by Kuck Baxter Immigration LLC and Siskind Susser PC, announced the first addition to its group of law firms since the joint venture’s founding in 2020: Wasden Bless & Forney. IMMpact, created with the goal of pooling resources to pursue mass immigration-related litigation, has filed 23 federal cases so far, including challenging various Department of State visa bans, a Department of Labor regulation, various cases relating to delays in processing of immigration benefits, and others. Mr. Kuck said, “We are excited and honored to have this amazing team of immigration litigators join the IMMpact Litigation team. Their individual and combined experience in federal court and deep knowledge of government litigation tactics allows IMMpact to offer our clients an unprecedented depth of skill and capacity.” https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:9d777bd7-c05d-3683-bef3-a4e153846658#pageNum=1 (press release); https://www.immpactlitigation.com/ (IMMpact website)

Guest author Prof. Stacy Caplow has authored a new blog post for Cyrus D. Mehta & Partners PLLC, “The Pathos of Patel v. Garland.” http://blog.cyrusmehta.com/2022/05/the-pathos-of-patel-v-garland.html

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) has accepted the position of Editor-in-Chief (EIC) of the American Immigration Lawyers Association’s Law Journal, following the previous EIC’s departure on June 30, 2022. Mr. Mehta’s blog is at http://blog.cyrusmehta.com/.

Mr. Mehta and Jessica Paszco co-authored a new blog post, “H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date Is Current and Green Card is Not Applied for Within One Year.” http://blog.cyrusmehta.com/2022/05/h-1b-extension-beyond-six-years-will-not-be-granted-if-priority-date-is-current-and-green-card-is-not-applied-for-within-one-year.html

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Ethical Considerations When ICE Moves to Dismiss Removal Proceedings Under the Doyle Prosecutorial Discretion Memo,” http://blog.cyrusmehta.com/2022/05/ethical-considerations-when-ice-moves-to-dismiss-removal-proceedings-under-the-doyle-prosecutorial-discretion-memo.html, and , “Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence.” http://blog.cyrusmehta.com/2022/05/helping-afghans-and-ukrainians-can-progress-from-parole-to-temporary-protected-status-to-permanent-residence.html

WR Immigration announced two nominations for Chambers and Partners’ North American Diversity & Inclusion Awards. Bernard Wolfsdorf is nominated for Pro Bono Lawyer of the Year and WR Immigration is nominated for Pro Bono Outstanding Firm. The awards ceremony will be held June 9, 2022, in Los Angeles, California. https://wolfsdorf.com/chambers-diversity-inclusion-awards-north-america-2022/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by law.com in “Immigration Lawyers Welcome Clarity and Lessening of Bias Wrought by Court Notification Statute on Hochul’s Desk.” A measure, passed by the New York legislature and awaiting Gov. Hochul’s signature, is structured so that courts would give standard required language about the risk of immigration consequences resulting from a guilty plea to everyone—the court wouldn’t first find out whether a defendant is a noncitizen. “So there’s no discrimination in that sense,” Mr. Yale-Loehr said. He noted that immigration law and criminal law are complicated, and that advising people about the intersection of them makes it even more complicated. “Many times people erroneously think that it’s only if they plead guilty to a felony crime that they might be deportable, but in many cases under federal immigration law, pleading guilty to a misdemeanor can also make you deportable,” he said

Mr. Yale-Loehr was quoted by Spectrum News in “Lawmakers Call for Investigation Into Office Handling Asylum Cases for New England States.” He explained that some outside factors may have played a part in the Boston U.S. Citizenship and Immigration Service office’s low approval rate. “There are a lot of reasons, [including] high turnover of officers [and] pressure to decide cases quickly … if [officers] see the same kind of case over and over again, you sort of feel like you know that type of case without really probing into the individual facts of the case. … There’s a lot of disparity in all of the USCIS asylum offices and it got worse during the Trump administration. There was pressure from headquarters to make it harder to win approval. So approval rates across the country went down. They just seem to have gone down more in Boston than in some of the other USCIS asylum offices.” https://spectrumnews1.com/ma/worcester/politics/2022/06/01/lawmakers-call-for-investigation-into-office-handling-asylum-cases-for-new-england-states

Mr. Yale-Loehr was quoted by the Washington Examiner in “Biden’s Options Limited on Title 42 COVID-19 Migration Rule After Court Ruling.” Mr. Yale-Loehr said the Biden administration has three options in deciding what to do after a federal district court issued an order barring the administration from terminating its Title 42 policy of barring most people from entering the United States at the U.S.-Mexico border: it could appeal to the U.S. Court of Appeals for the Fifth Circuit, start the rulemaking process and ask for public comment on terminating Title 42, or give up and keep the measure in place. Since the White House has already said it will appeal, that process will play out over the course of several months, leaving Title 42 effectively in place for the foreseeable future. Mr. Yale-Loehr said the decision not to seek an immediate stay may have boiled down to practical reasons. “I suspect the reason is that it is very hard to win an emergency stay,” he said. https://www.washingtonexaminer.com/news/white-house/bidens-options-limited-on-title-42-covid-19-migration-rule-after-court-ruling

Mr. Yale-Loehr was quoted by Univision in “The Four Cases in the Hands of the Supreme Court That Will Impact Hundreds of Thousands of Immigrants.” In one case, he said, “Two lower courts have held that, in certain cases, immigrants have [a] right” to request a bond hearing after six months in detention. “But the conservative majority on the Supreme Court may disagree with those rulings,” he said. The arguments, presented by defense attorneys for immigrants and the U.S. government, will decide whether foreigners who have been detained for more than six months “have the right to a bail hearing to be released,” he noted. In another case, he said, the plaintiff “is arguing that, to avoid a due process violation, he and certain other immigrants should be entitled to a bond hearing after six months in detention. However, in 2021 the Supreme Court ruled 6-3 that immigrants who return to the United States illegally after being deported must be held without bond while they await a second deportation hearing.” Mr. Yale-Loehr further said that “both cases are important, in part due to the large backlog of cases in the immigration courts. More than 1.7 million immigrants have cases pending with the [Executive Office for Immigration Review] (EOIR). It can take years to get a decision. If immigrants have to be detained all that time, the monetary and social costs will be immense.” https://www.univision.com/noticias/inmigracion/estos-son-los-cuatro-casos-de-inmigracion-pendientes-corte-suprema (Spanish with English translation available)

Mr. Yale-Loehr was quoted by Univision in “Supreme Court Ruling Leaves Immigrants With Errors in Their Paperwork on the Brink of Deportation.” Mr. Yale-Loehr said that the Supreme Court’s decision “means that thousands of immigrants each year will no longer be able to go to federal court to correct factual errors by immigration judges. Given how much is at stake in deportation proceedings, Congress should provide funding for attorneys to represent immigrants in all deportation proceedings in the same way that attorneys are automatically provided to everyone charged with a crime.” https://www.univision.com/noticias/inmigracion/fallo-corte-suprema-deja-inmigrantes-al-borde-de-deportacion-las-claves (Spanish, with English translation available)

Mr. Yale-Loehr was quoted by Law360 in “High Court Raises Stakes of Immigration Court Decisions.” He said that noncitizens without legal representation are more likely to be affected by the Supreme Court’s ruling because they don’t have the help of legal professionals trained to watch out for potential errors by immigration adjudicators. He said legal aid programs can help address the disadvantages facing noncitizens who lack access to counsel, and encouraged immigration advocates to push for federal, state, and local governments to fund such programs. “We need to make sure that every immigrant has good representation in immigration court. Given the many errors the immigration bureaucracy makes, many people will be denied their day in court because of this decision,” he said. https://www.law360.com/immigration/articles/1493704/high-court-raises-stakes-of-immigration-court-decisions (registration required)

Mr. Yale-Loehr was quoted by the Associated Press in “Video Spreads False Claims About Immigrants.” Regarding claims that immigrants living in the United States without authorization commit a high number of crimes, he said, “Almost every reputable report that I have seen has found that immigrants commit crimes at a lower rate than native born U.S. citizens.” Mr. Yale-Loehr cited a 2020 study published in Proceedings of the National Academy of Sciences, a peer-reviewed journal. Using data from the Texas Department of Public Safety, the study found that immigrants living in the U.S. without authorization have “substantially lower crime rates than native-born citizens and legal immigrants across a range of felony offenses.” Regarding an estimate of the number of immigrants who could be living in the United States without authorization, Mr. Yale-Loehr said, “Their numbers of 21 million are just wildly off base. They are double what reputable research organizations have found.” He pointed to the Pew Research Center, which estimated that 10.5 million immigrants were living in the U.S. without authorization as of 2017. Regarding claims by conservative activist Candace Owens, citing a 2011 Center for Immigration Studies (CIS) report,  that immigrants living in the United States use public benefits at a high rate and that 80% never go off welfare, Mr. Yale-Loehr noted that a 2002 Brookings Institution report states that use of welfare by legal permanent residents has declined by a faster rate than use of such benefits by citizens. “The CIS report doesn’t distinguish between legal and illegal immigrants,” he noted. “Neither report states that 80% of undocumented immigrants never go off welfare. The bottom line: These two reports fail to support Candace Owens’ claim.” https://apnews.com/article/fact-check-charlie-kirk-candace-owens-immigration-688231079873

Mr. Yale-Loehr was quoted by Time in “Why Judges Are Basically in Charge of U.S. Immigration Policy Now.” He said, “This is a manifestation of our broken immigration system. Today, almost every executive action on immigration is being challenged in the courts.” He also noted that judges having so much power to determine immigration policy also puts the U.S. judicial system in a delicate spot, since federal judges are often wary of being drawn into issues of national sovereignty or of impinging on the executive branch’s authority to conduct foreign policy. But these days, they often have no choice. “Courts are loath to weigh in,” he said. Another reason for the recent explosion of court challenges was the pace at which the Trump administration moved on immigration issues, the article notes. That “unprecedented pace” led to an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Mr. Yale-Loehr said. And now, he said, “Conservative states are suing every chance they get to challenge everything that the Biden administration is doing on immigration.” https://time.com/6172684/judges-us-immigration-policy/

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Government Agency Links

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

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

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

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In this issue:

1. Cap Reached for Additional Returning Worker H-2B Visas for FY 2021 – Under the recently announced H-2B supplemental cap temporary final rule, USCIS has received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only. USCIS continues to accept petitions for H-2B nonimmigrant workers for the additional 6,000 visas allotted for nationals of Honduras, Guatemala, and El Salvador.

2. State Dept. Expands National Interest Exception Criteria for Travelers from Covid-Restricted Countries – The Department expanded the NIE criteria for individuals subject to proclamations restricting travel to the United States due to physical presence in China, Iran, India, Brazil, South Africa, the Schengen Area, the United Kingdom, and Ireland.

3. DHS Terminates Migration Protection Protocols Program – Alejandro Mayorkas, DHS Secretary, announced on June 1, 2021, that he has terminated the Migration Protection Protocols (MPP) program.

4. ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility – U.S. Immigration and Customs Enforcement announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

5. USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals – Fully vaccinated individuals no longer have to wear a face covering. USCIS also eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms.

6. DHS Designates Haiti for Temporary Protected Status – The Department of Homeland Security has designated Haiti for TPS for 18 months.

7. DHS Designates Burma (Myanmar) for Temporary Protected Status – The Department of Homeland Security has designated Burma (Myanmar) for TPS through November 25, 2022.

8. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From Burma (Myanmar) – The Department of Homeland Security announced the suspension until November 25, 2022, of certain regulatory requirements for F-1 nonimmigrant students from Burma (Myanmar) who are experiencing severe economic hardship as a result of the current crisis in Burma.

9. Higher Education Associations Urge Biden Administration to Take Action to Allow International Students to Return to Campus In Time for Fall Semester – The associations ask for timely and efficient processing of visa applications and work authorizations.

10. CBP Continues Temporary Travel Restrictions From Canada, Mexico Into United States Via Land POEs and Ferries – Temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through June 21, 2021.

11. Round Table of Former Immigration Judges Asks Attorney General to Review, Rescind Trump Administration Decisions – The group asked Attorney General Merrick Garland to “review and rescind many, if not all, of the decisions that former Attorneys General Sessions, Whitaker, Barr, and Rosen certified to themselves.”

12. DHS, DOJ Announce New Dedicated Docket Process for Immigration Hearings – The new process is intended to “significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border.”

13. DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap – The Departments of Homeland Security and Labor published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for nationals of Honduras, El Salvador, and Guatemala.

14. DHS Issues Final Rule to Remove Vacated H-1B Rule – The vacated interim final rule, issued in October 2020, made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.

15. USCIS Extended SAVE Records Download Deadline – U.S. Citizenship and Immigration Services extended the deadline for SAVE users to download older case information before USCIS disposed of it. This applied to SAVE records that were more than 10 years old (those dated on or before December 31, 2010).

16. ETA Proposes Revision to CW-1 Application for Temporary Employment Certification in Marianas – The information collected through the form remains unchanged.

17. State Dept. Announces Updated Interpretation of Acquisition of Citizenship at Birth – The Department of State announced on May 18, 2021, an update in its interpretation and application of the requirements for acquisition of U.S. citizenship at birth in light of advances in assisted reproductive technology.

18. DHS Announces Continuation of International Entrepreneur Program – USCIS said the program, first introduced in 2017, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.”

19. USCIS Temporarily Suspends Biometrics Requirement for Certain Nonimmigrants Changing or Extending Status – Previously, applicants had to submit requests in writing to reschedule their biometrics appointments.

20. USCIS Allows Rescheduling of Biometric Appointments by Phone – The Department of Homeland Security plans to withdraw a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

21. DOL Further Delays Effective Date of Prevailing Wage Computation Final Rule – The Department of Labor has delayed a final rule on prevailing wage computations until November 14, 2022.

22. CBP Announces Policy Change on National Interest Exceptions at Port of Atlanta – Due to a “recent necessary policy change,” U.S. Customs and Border Protection (CBP) at the Port of Atlanta will only consider processing § 212(f) national interest exception waiver requests for “urgent humanitarian reasons or those involving national security and/or law enforcement matters.”

23. Afghan Translators/Interpreters Who Helped United States Seek Visas Promised to Them – An estimated 18,000 Afghan translators/interpreters and their families who have aided the U.S. military and government with translation services await pending Special Immigrant Visas. With the September 2021 deadline looming for the United States to withdraw American troops, pleas for visas to be issued quickly have been renewed.

24. USCIS Provides Guidance on Exemption to Temporary Need Requirement for Certain H-2B Workers in Guam and Marianas – USCIS issued guidance effective immediately regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions for certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands.

25. President Biden Raises Refugee Cap to 62,500 in FY 2021 – President Joe Biden revised the United States’ annual refugee admissions cap to 62,500 for fiscal year FY 2021, with a goal of 125,000 admissions for FY 2022.

26. DHS Will Withdraw Proposed Rule on Work Authorization for Certain Persons With Final Removal Orders – The Department of Homeland Security will withdraw a proposed rule that would have revised DHS regulations to eliminate employment authorization for individuals who have final orders of removal and are released from DHS custody on an order of supervision, with a narrow exception.

27. DHS Will Withdraw Proposed Rule on Expanding Biometrics Collection, Use – The Department of Homeland Security plans to withdraw a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

28. DHS Ratifies Rule That Removes 30-Day EAD Processing Requirement – Secretary of Homeland Security Alejandro Mayorkas ratified a rule regarding applications for employment authorization documents filed by people who have applied for asylum.

29. EOIR Announces 17 New Immigration Judges – The Executive Office for Immigration Review announced 17 new Immigration Judges, including one Assistant Chief Immigration Judge and six Unit Chief Immigration Judges, and released biographical information about all of them.

30. ABIL Global: India – The Indian government has simplified the rules for renewal of Overseas Citizenship of India (OCI) cards.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – June 2021

1. Cap Reached for Additional Returning Worker H-2B Visas for FY 2021

Under the recently announced H-2B supplemental cap temporary final rule, U.S. Citizenship and Immigration Services (USCIS) announced on June 3, 2021, that it has received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only. USCIS continues to accept petitions for H-2B nonimmigrant workers for the additional 6,000 visas allotted for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Triangle).

USCIS said it is rejecting and returning any cap-subject petitions for H-2B returning workers (not including those filed under the Northern Triangle allotment) received after June 1, 2021, together with any accompanying filing fees.

Petitioners whose workers were not selected for the 16,000 returning worker allotment are encouraged to refile for workers from the Northern Triangle countries while visas for that allotment remain available. The final date for filing petitions requesting Northern Triangle nationals who are exempt from the returning worker requirement is July 8, 2021. If fewer than 6,000 beneficiaries are requested toward the visas set aside for nationals of the Northern Triangle countries, USCIS will announce by July 23, 2021, that the remaining visa numbers will be made available to beneficiaries regardless of nationality, subject to the returning worker limitation.

USCIS said it will continue to accept H-2B petitions for workers filing under the Northern Triangle allotment, as well as those that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

• USCIS announcement, https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021
• “Temporary Increase in H-2B Nonimmigrant Visas for FY 2021” page, USCIS, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2021
• Joint temporary final rule, https://www.govinfo.gov/content/pkg/FR-2021-05-25/pdf/2021-11048.pdf

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2. State Dept. Expands National Interest Exception Criteria for Travelers from Covid-Restricted Countries

On May 27, 2021, the Department of State expanded the National Interest Exception (NIE) criteria for individuals subject to proclamations restricting travel to the United States due to physical presence in China, Iran, India, Brazil, South Africa, the Schengen Area, the United Kingdom, and Ireland.

Categories of qualified travelers who can now apply and qualify for NIEs include those “who are seeking to provide vital support or executive direction for critical infrastructure; those traveling to provide vital support or executive direction for significant economic activity in the United States; journalists; students and certain academics covered by exchange visitor programs; immigrants; and fiancés.”

Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) may travel to the United States following the procedures summarized in the notice, which also provides information for F-1 or M-1 students and on NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Travelers requiring a visa stamp and/or NIE should review the website of the nearest U.S. embassy or consulate for further instructions specific to the post.

Details:

• State Dept. notice,

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3. DHS Terminates Migration Protection Protocols Program

Alejandro Mayorkas, Secretary of the Department of Homeland Security (DHS), announced on June 1, 2021, that he has terminated the Migration Protection Protocols (MPP) program. The Trump administration implemented the program in January 2019 with a memorandum from then-DHS Secretary Kirstjen Nielsen.

Under the program, approximately 68,000 individuals were returned to Mexico following their enrollment. According to a new memorandum, Secretary Mayorkas determined that “MPP does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls.” Under MPP, certain non-Mexican applicants for admission to the United States who arrived on land at the southwest border could be returned to Mexico to await their removal proceedings. Due to public health measures necessitated by the ongoing COVID-19 pandemic, however, DHS and the Executive Office for Immigration Review (EOIR) “stopped being able to facilitate and conduct immigration court hearings for individuals enrolled in MPP beginning in March 2020,” the memo notes. DHS “has worked with interagency partners and facilitating organizations to implement a phased process for the safe and orderly entry into the United States of certain individuals who had been enrolled in MPP” following DHS’s suspension of new enrollments as of January 21, 2021.

The memo states that termination of MPP “does not impact the status of individuals who were enrolled in MPP at any stage of their proceedings before EOIR or the phased entry process” described in the memo.

Details:

• DHS memorandum, June 1, 2021, https://www.dhs.gov/sites/default/files/publications/21_0601_termination_of_mpp_program.pdf

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4. ICE Announces Extension, New Employee Guidance on I-9 Compliance Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced an extension until August 31, 2021, of the flexibilities in rules related to Form I-9 compliance that were initially granted last year due to precautions related to COVID-19.

The latest extension includes guidance for employees hired on or after June 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) process until they undertake non-remote employment on a “regular, consistent, or predictable basis,” or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. If there are employees physically present at a work location, no exceptions are being implemented for in-person verification of identity and employment eligibility documentation.

Details:

• ICE announcement, May 26, 2021, https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility-0

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5. USCIS Eases Visitor Restrictions for Fully Vaccinated Individuals

Due to updated guidance from the Centers for Disease Control and Prevention, U.S. Citizenship and Immigration Services (USCIS) has updated its visitor policy. Fully vaccinated individuals no longer have to wear a face covering. Individuals two years old and older who are not fully vaccinated must still wear a face covering.

“Fully vaccinated” is defined as at least two weeks having passed after receiving a second dose in a two-dose series or at least two weeks having passed after receiving a dose of a single-dose vaccine.

USCIS also eased other requirements for fully vaccinated individuals who do not have COVID-19 symptoms. Those who have returned from domestic air, international air, or cruise ship travel in the past 10 days may enter USCIS facilities if they are fully vaccinated. Individuals who have been in close contact (within six feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the previous 14 days may also enter USCIS facilities if they are fully vaccinated. Healthcare workers who consistently wear an N95 respirator and proper personal protective equipment or equivalent when in contact with COVID-19-positive individuals continue to be exempt from reporting close contact, USCIS said.

In Department of Homeland Security-controlled spaces, “this guidance supersedes state, local, tribal, or territorial rules and regulations regarding face coverings,” USCIS said.

Details:

• USCIS notice, May 27, 2021, https://www.uscis.gov/news/alerts/uscis-eases-visitor-restrictions-for-fully-vaccinated-individuals

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6. DHS Designates Haiti for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Haiti for temporary protected status (TPS) for 18 months.

TPS will apply only to those individuals who are already residing in the United States as of May 21, 2021, and meet all other requirements. Those who attempt to travel to the United States after this announcement will not be eligible for TPS and may be repatriated, DHS warned. Haiti’s 18-month designation will take effect on the publication date of the Federal Register notice, to come shortly. The notice will provide instructions for applying for TPS and employment authorization documentation.

Details:

• DHS announcement, May 22, 2021, https://www.dhs.gov/news/2021/05/22/secretary-mayorkas-designates-haiti-temporary-protected-status-18-months

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7. DHS Designates Burma (Myanmar) for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Burma (Myanmar) for temporary protected status (TPS) through November 25, 2022. The designation allows an estimated 1,600 Burmese nationals (or individuals having no nationality who last habitually resided in Burma) who have been continuously residing in the United States since March 11, 2021, and continuously physically present in the United States since May 25, 2021, to file initial applications for TPS.

The 180-day initial registration period began on May 25, 2021, and runs through November 22, 2021. Applicants may also be eligible to apply for TPS-related employment authorization documents and for travel authorization.

Details:

• DHS announcement, https://www.uscis.gov/news/news-releases/dhs-announces-open-registration-for-temporary-protected-status-for-burma
• Designation of Burma (Myanmar) for Temporary Protected Status, 86 Fed. Reg. 28132 (May 25, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-25/pdf/2021-11075.pdf

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8. DHS Suspends Certain Regulatory Requirements for F-1 Nonimmigrant Students From Burma (Myanmar)

On May 24, 2021, the Department of Homeland Security (DHS) announced the suspension until November 25, 2022, of certain regulatory requirements for F-1 nonimmigrant students from Burma (Myanmar) who are experiencing severe economic hardship as a result of the current crisis in Burma. The notice temporarily suspends applicable on-campus and off-campus employment regulations for eligible Burmese students who meet certain conditions.

Details:

• DHS notice, https://www.ice.gov/doclib/sevis/pdf/bcm2105-03.pdf
• Federal Register notice,

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9. Higher Education Associations Urge Biden Administration to Take Action to Allow International Students to Return to Campus In Time for Fall Semester

The American Council on Education (ACE) and a group of higher education associations sent a letter to Secretary of State Antony Blinken and Secretary of Homeland Security Alejandro Mayorkas urging them to take immediate action to allow international students to return to their campuses and institutions in the fall semester. “Given the processing time for visas, we believe there are actions that need to be taken now to allow enough time for processing and for international students to make plans to travel to the United States safely.” The associations ask for timely and efficient processing of visa applications and work authorizations, including optional practical training, among other measures.

NAFSA: Association of International Educators, sent a separate letter to Secretary Blinken, noting among other things that over the past four years, the United States “lost international students to competitors like Canada, Australia, and even China.”

The ACE letter notes a 43 percent decline in new international student enrollment at U.S. institutions during the COVID-19 pandemic, and a decline in the overall economic impact generated by international students of $1.8 billion during the 2019-2020 academic year from $40.5 billion in the prior year. There were approximately 1.1 million international students in the United States in the 2019-2020 academic year.

Details:

• ACE letter, https://www.acenet.edu/Documents/Letter-State-DHS-Fall-2021-031821.pdf
• NAFSA letter, https://www.nafsa.org/sites/default/files/media/document/NAFSAtoSecretaryBlinken.pdf
• “Colleges Beg Biden to Save International Student Enrollment,” Politico, May 29, 2021, https://www.politico.com/news/2021/05/29/colleges-biden-visas-international-students-491346

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10. CBP Continues Temporary Travel Restrictions From Canada, Mexico Into United States Via Land POEs and Ferries

The Department of Homeland Security (DHS) announced that temporary limits on nonessential travel of individuals from Canada or Mexico into the United States at land ports of entry along the border, including ferry service, will continue through June 21, 2021. The restrictions only allow processing for entry into the United States of those travelers engaged in “essential travel,” as defined in the notice.

Details:

• Federal Register notice (Canada), https://www.govinfo.gov/content/pkg/FR-2021-05-24/pdf/2021-10991.pdf
• Federal Register notice (Mexico), https://www.govinfo.gov/content/pkg/FR-2021-05-24/pdf/2021-10992.pdf

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11. Round Table of Former Immigration Judges Asks Attorney General to Review, Rescind Trump Administration Decisions

The Round Table of Former Immigration Judges (RTFIJ), a group of 40 former immigration judges and appellate-level judges of the Board of Immigration Appeals, sent a letter on May 25, 2021, asking Attorney General Merrick Garland to “review and rescind many, if not all, of the decisions that former Attorneys General Sessions, Whitaker, Barr, and Rosen certified to themselves.” RTFIJ said that the “vast majority of those decisions overturned decades of substantive and procedural immigration law and policy and are antithetical to an unbiased and independent immigration court system.”

RTFIJ singled out 17 cases divided into three general categories: (1) decisions regarding the authority of Immigration Judges to control and manage their own dockets; (2) decisions involving the intersection of criminal and immigration laws; and (3) decisions that significantly contract substantive asylum laws. RTFIJ said it is especially concerned about the first and third categories, which “have turned the Immigration Courts into nothing more than cogs in the deportation machine, and Immigration Judges into prosecutors instead of fair and impartial adjudicators.” RTFIJ noted that instead of ensuring the issuance of more orders of removal, the Department of Homeland Security “succeeded only in increasing the case backlog exponentially while reducing the overall case completion rate.”

Details:

• RTFIJ letter, May 25, 2021, https://immigrationcourtside.com/wp-content/uploads/2021/05/AG-Garland-letter-Precedents-FInal.pdf

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12. DHS, DOJ Announce New Dedicated Docket Process for Immigration Hearings

The Departments of Homeland Security (DHS) and Justice (DOJ) announced on May 28, 2021, a new “Dedicated Docket” process intended to “significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border.”

The effort is focused on families arriving between ports of entry at the southwest border and aims to have an immigration judge issue a decision within 300 days of the initial master calendar hearing, subject to the unique circumstances of each case.

Details:

• DOJ announcement, May 28, 2021, https://www.justice.gov/opa/pr/dhs-and-doj-announce-dedicated-docket-process-more-efficient-immigration-hearings

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13. DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap

The Departments of Homeland Security (DHS) and Labor (DOL) published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year (FY) 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for workers from Honduras, El Salvador, and Guatemala (Northern Triangle).

The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.

USCIS Acting Director Tracy L. Renaud said that the rule “requires that employers take additional steps to recruit U.S. workers, and provides for ‘portability,’ which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved.” She noted that portability enables H-2B workers to “change employers more quickly if they encounter unsafe or abusive working conditions.” She said DHS and DOL “will conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”

Starting May 25, 2021, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate that their business is likely to suffer irreparable harm without a supplemental workforce.

Details:

• “U.S. Departments of Homeland Security and Labor Issue Joint Rule Supplementing H-2B Visa Cap,” May 21, 2021, https://www.uscis.gov/news/news-releases/us-departments-of-homeland-security-and-labor-issue-joint-rule-supplementing-h-2b-visa-cap

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14. DHS Issues Final Rule to Remove Vacated H-1B Rule

The Department of Homeland Security issued a final rule, effective May 19, 2021, that removes an interim final rule issued in October 2020 and later vacated by a federal district court, “Strengthening the H-1B Nonimmigrant Visa Classification Program.” The interim final rule made changes to the regulatory definitions and standards for “specialty occupation,” “worksite,” “third-party worksite,” “U.S. employer,” “employer-employee relationship,” and others.

The final rule removes from the Code of Federal Regulations the regulatory text that DHS promulgated in the October 2020 interim final rule and restores the regulatory text to appear as it did before.

Details:

• Final rule, DHS, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10489.pdf
• Vacated interim final rule, October 8, 2020, https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22347.pdf

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15. USCIS Extended SAVE Records Download Deadline

The Systematic Alien Verification for Entitlements (SAVE) program announced that U.S. Citizenship and Immigration Services extended the deadline to June 4, 2021, for SAVE users to download older case information before USCIS disposed of it. This applied to SAVE records that were more than 10 years old (those dated on or before December 31, 2010).

The downloadable Historic Records Report “provides data about each SAVE case that is more than 10 years old and slated for deletion in accordance with the governing National Archives and Records Administration (NARA) Retention and Disposal schedule,” SAVE explained. The data includes basic SAVE verification case information. The report is available annually to SAVE Super Users for about 90 days to allow user agencies to download and retain information about these cases before their deletion.

Details:

• “SAVE Instructions to Download Historic Records Report Tip Sheet,” https://www.uscis.gov/sites/default/files/document/guides/Instructions_to_Download_NARA_Reports_in_SAVE.pdf

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16. ETA Proposes Revision to CW-1 Application for Temporary Employment Certification in Marianas

The Department of Labor’s Employment and Training Administration (ETA) proposes to amend Form ETA-9141C, Application for Prevailing Wage Determination, and its instructions, “to make sure this form, which is specific to the CW-1 program, conforms to the information collected through the general Form ETA-9141, Application for Prevailing Wage Determination (Form ETA-9141C),” used by employers in connection with prevailing wage requests for other labor certification application programs and for labor condition applications. The information collected through the form remains unchanged.

The CW-1 nonimmigrant visa program permits employers who meet program requirements to hire nonimmigrant workers temporarily in the Commonwealth of the Northern Mariana Islands to perform services or labor based on the employer’s need.

The notice informs the public of the Department’s request to seek an extension of the validity of this information collection while also revising the Form-9141C, and its instructions, and invites comments from the public for 60 days. The deadline for comments is July 19, 2021.

Details:

• Office of Foreign Labor Certification notice, May 19, 2021, https://www.dol.gov/agencies/eta/foreign-labor
• Federal Register notice, May 19, 2021, https://www.govinfo.gov/content/pkg/FR-2021-05-19/pdf/2021-10529.pdf
• Supporting statement,

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17. State Dept. Announces Updated Interpretation of Acquisition of Citizenship at Birth

The Department of State announced on May 18, 2021, an update in its interpretation and application of the requirements for acquisition of U.S. citizenship at birth in light of advances in assisted reproductive technology. Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, “will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the [Immigration and Nationality Act’s] other requirements.” Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent. Requirements for children born to unmarried parents remain unchanged.

Details:

• S. Citizenship Transmission and Assisted Reproductive Technology,” May 18, 2021, https://www.state.gov/u-s-citizenship-transmission-and-assisted-reproductive-technology/

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18. DHS Announces Continuation of International Entrepreneur Program

U.S. Citizenship and Immigration Services (USCIS) announced on May 10, 2021, that the Department of Homeland Security (DHS) is withdrawing a 2018 proposed rule that would have removed the International Entrepreneur parole program from DHS regulations. USCIS said the program, first introduced in 2017, “will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.”

Under the program, parole may be granted for up to three entrepreneurs per start-up entity, as well as their spouses and children. Entrepreneurs granted parole are eligible to work only for their start-up business. Their spouses may apply for employment authorization in the United States, but their children are not eligible for such authorization based on the program. An applicant must file Form I-941, Application for Entrepreneur Parole, with the required fees (including biometric) and supporting documentary evidence. The fees are $1,200 for filing the
I-941 and $85 for biometrics. Additional forms and fees are required for spouses and children.

Details:

• USCIS/DHS announcement, May 10, 2021, https://www.uscis.gov/news/news-releases/dhs-announces-continuation-of-international-entrepreneur-parole-program
• USCIS International Entrepreneur Parole page, which includes details on eligibility requirements, filing procedures, and links to forms, is at https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole

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19. USCIS Temporarily Suspends Biometrics Requirement for Certain Nonimmigrants Changing or Extending Status

Effective May 17, 2021, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend the biometrics submission requirement for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, and E nonimmigrant status. USCIS will allow adjudications for those specific categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director, the agency said.

This temporary suspension will apply to applicants filing Form I-539 requesting:

• Extension of stay in or change of status to H-4, L-2, or E-1 nonimmigrant status;
• Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor)); or
• Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D).

This suspension will apply only to the above categories of Form I-539 applications that are either:

• Pending as of May 17, 2021, and have not yet received a biometric services appointment notice; or
• New applications postmarked or submitted electronically on or after May 17, 2021.

USCIS noted that it retains discretion on a case-by-case basis to require biometrics for applicants who meet the criteria above, and any applicant may be scheduled for an Application Support Center (ASC) appointment to submit biometrics.

Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment, USCIS said.

Effective May 17, 2021, Form I-539 applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. USCIS will allow a short grace period during which USCIS will not reject Form I-539 filed with the biometric services fee. USCIS will begin rejecting paper Form I-539 applications postmarked May 27, 2021, or later (while this suspension of the biometrics requirement is in effect), if applicants meeting the above criteria submit a single payment covering both the filing fee and the $85 biometrics services fee. If USCIS rejects the paper application because the applicant included the $85 biometrics service fee after the grace period, the applicant will need to re-file Form I-539 without the biometric services fee.

Details:

• Proposed rule, withdrawal (prepublication copy),
• “USCIS Will Suspend Trump-Era Biometric Screening Rule for Work-Permit Applicants,” Reuters, May 4, 2021, https://www.reuters.com/business/legal/uscis-will-suspend-trump-era-biometric-screening-rule-work-permit-applicants-2021-05-04/

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20. USCIS Allows Rescheduling of Biometric Appointments by Phone

U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2021, that applicants, petitioners, requestors, and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center. Previously, applicants had to submit requests in writing to reschedule their biometrics appointments.

USCIS said that applicants must establish “good cause” for rescheduling and must call before the date and time of their original appointment to reschedule. If an applicant fails to call before the scheduled appointment or to establish good cause, “USCIS may consider the application, petition, or request abandoned and, as a result, it may be denied.”

Details:

• “Rescheduling Biometric Services Appointments by Phone,” USCIS, May 11, 2021, https://www.uscis.gov/news/alerts/rescheduling-biometric-services-appointments-by-phone

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21. DOL Further Delays Effective Date of Prevailing Wage Computation Final Rule

The Department of Labor has delayed a final rule on prevailing wage computations from May 14, 2021, until November 14, 2022.

The latest action includes corresponding delays in the rule’s transition dates until January 1, 2023, January 1, 2024, January 1, 2025, and January 1, 2026, respectively. For most job opportunities, the transition would occur in two steps. For job opportunities that will be filled by workers who are the beneficiary of an approved Immigrant Petition for Alien Worker, or successor form, or are eligible for an extension of their H–1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act, (2002), the transition would occur in four steps.

Details:

• Final rule; delay of effective and transition dates, Dept. of Labor, 86 Fed. Reg. 26164 (May 13, 2021), https://www.govinfo.gov/content/pkg/FR-2021-05-13/pdf/2021-10084.pdf

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22. CBP Announces Policy Change on National Interest Exceptions at Port of Atlanta

Due to a “recent necessary policy change,” effective May 14, 2021, U.S. Customs and Border Protection (CBP) at the Port of Atlanta will only consider processing § 212(f) national interest exception (NIE) waiver requests for “urgent humanitarian reasons or those involving national security and/or law enforcement matters.” All other requests, including any requests currently pending with CBP Atlanta, “will need to be processed by the U.S. Embassy or Consulate,” CBP said.

On April 26, 2021, the Secretary of State made a national interest determination regarding categories of travelers to be excepted from Presidential Proclamations (PPs) 9984, 9992, and 10143 related to the spread of COVID-19.  As a result of this determination, together with national interest determinations already in place, travelers subject to these proclamations, due to their presence in China, Iran, Brazil, South Africa, the Schengen area, the United Kingdom, and Ireland, who are seeking to provide vital support for critical infrastructure; journalists; and students and certain academics covered by exchange visitor programs, among others, may now qualify for a National Interest Exception (NIE).

Details:

• “National Interest Exceptions for Certain Travelers from China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland,” Dept. of State, May13, 2021,

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23. Afghan Translators/Interpreters Who Helped United States Seek Visas Promised to Them

An estimated 18,000 Afghan translators/interpreters and their families who have aided the U.S. military and government with translation services await pending Special Immigrant Visas. With the September 2021 deadline looming for the United States to withdraw American troops, pleas for visas to be issued quickly have been renewed.

Many such Afghans fear for their lives. The Lutheran Immigration and Refugee Service (LIRS) wrote to President Biden to urge him to “evacuate Afghan wartime allies who have already applied for the Special Immigrant Visa [SIV] program and their families to American territory.” According to LIRS, “[s]ince 2002, the U.S. government has employed Afghan allies to serve alongside U.S. troops, diplomats, and other government employees as translators, interpreters, cultural advisors, or support staff.” In recognition of the peril they face, LIRS noted, Congress enacted the Afghan SIV program in 2009 and “mandated that visa applications be processed within nine months.” The American Legion has also pleaded their case to the Biden administration and Congress.

Details:

• “Family of Slain Afghan U.S. Military Interpreter Headed to Houston After 10-Year Visa Delay,” Houston Public Media, May 14, 2021, https://www.houstonpublicmedia.org/articles/news/politics/immigration/2021/05/14/398056/family-of-slain-afghan-u-s-military-interpreter-headed-to-houston-after-10-year-visa-delay/
• “Thousands of Afghans and Iraqis Are Under Threat for Helping Americans. Now They Hope Biden Will Help Them Resettle in the United States,” Washington Post, Dec. 30, 2020, https://www.washingtonpost.com/politics/biden-refugees-visas/2020/12/30/572c00fc-3e4f-11eb-9453-fc36ba051781_story.html
• S. Veterans Scramble to Help Interpreters Left Behind,” American Legion, Apr. 29, 2021, https://www.legion.org/security/252361/us-veterans-scramble-help-interpreters-left-behind
• “Review of the Afghan Special Immigrant Visa Program,” Office of Inspector General, Dept. of State, June 2020, https://www.oversight.gov/sites/default/files/oig-reports/AUD-MERO-20-35.pdf
• “Recommendations to Provide Humanitarian Protections for Certain Afghan Civilians,” LIRS, May 12, 2021, https://www.lirs.org/wp-content/uploads/2021/05/LIRS-Letter-Requesting-Humanitarian-Protections-for-Certain-Afghan-Civilians_12-MAY-2021.pdf

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24. USCIS Provides Guidance on Exemption to Temporary Need Requirement for Certain H-2B Workers in Guam and Marianas

U.S. Citizenship and Immigration Services (USCIS) issued guidance on May 13, 2021, effective immediately, regarding the filing and adjudication of temporary nonagricultural worker (H-2B) nonimmigrant visa petitions for certain H-2B workers on Guam and in the Commonwealth of the Northern Mariana Islands. Specifically, the guidance notes that the National Defense Authorization Act for fiscal year 2021 (FY 2021 NDAA) provides that an H-2B employer who qualifies under certain parameters is not required to demonstrate that the service or labor is temporary in nature if the employment start date is before December 31, 2023. Included are employers with contracts or subcontracts that are “supporting” or “adversely affected by” the military realignment, in addition to those that are “associated with” or “directly connected to” it. The FY 2021 NDAA states that priority will be given to federally funded military projects. “Adversely affected by” includes but is not limited to projects for which the military realignment “has caused a loss of business income or a negative impact on the availability of necessary labor or resources that is not purely speculative (that is, based on assertions with no documentation to support the claim.”

The exemption may be granted for certain contracts or subcontracts for labor or services required for performance of a contract or subcontract for construction, repairs, renovations, or facility services, “provided they have a non-speculative supporting relationship to, association with, are adversely affected by, or have a direct connection to the military realignment.”

Details:

• USCIS Policy Alert PA-2021-06, May 13, 2021, https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210513-H2BNDAA.pdf

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25. President Biden Raises Refugee Cap to 62,500 in FY 2021

President Joe Biden revised the United States’ annual refugee admissions cap to 62,500 for fiscal year (FY) 2021, with a goal of 125,000 admissions for FY 2022. The announcement followed criticism after he announced plans to keep the number of refugee admissions at 15,000 this fiscal year primarily because of logistical concerns.

President Biden said that the “sad truth is that we will not achieve 62,500 admissions this year. We are working quickly to undo the damage of the last four years.” He said that “we are going to rebuild what has been broken and push hard to complete the rigorous screening process for those refugees already in the pipeline for admission.”

Details:

• “Statement by President Joe Biden on Refugee Admissions,” White House, May 3, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/03/statement-by-president-joe-biden-on-refugee-admissions/
• “Biden, in Reversal, Raises the Refugee Admission Cap to 62,500 in the Next Six Months,” New York Times, May 3, 2021, https://www.nytimes.com/2021/05/04/us/politics/biden-refugee-numbers.html

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26. DHS Will Withdraw Proposed Rule on Work Authorization for Certain Persons With Final Removal Orders

On May 10, 2021, the Department of Homeland Security (DHS) will withdraw a proposed rule published on November 19, 2020, that would have revised DHS regulations to eliminate employment authorization for individuals who have final orders of removal and are released from DHS custody on an order of supervision, with a narrow exception.

DHS noted that it received more than 302 comments in response to the proposed rule, nearly 98 percent of which were in opposition. Commenters who opposed the rule argued that it “would significantly limit the ability of individuals who have a final order of removal and are released on an order of supervision to legally work, be self-sufficient, and support their families, which may include U.S. citizen children and lawful permanent resident spouses or partners. Several commenters also noted the proposed rule would impose exorbitant costs and burdens on U.S. employers related to labor turnover and the proposed E-Verify requirement,” DHS said. Also, various state and local agencies, including Attorneys General from 15 states, opposed the rule on the basis that “it would decrease tax revenue, deny states various revenue streams, and increase costs related to state-funded public benefit programs.” Many commenters also disagreed with the proposed rule’s assertion that the proposed changes would incentivize individuals with final orders of removal to leave the United States.

DHS said it decided to withdraw the proposed rule because the original bases and rationale “no longer align with the [Biden administration’s] immigration enforcement priorities.” Withdrawing the proposed rule, DHS said, will allow covered individuals “to continue to work for American businesses that provide services in key industries and to supplement the existing U.S. workforce.”

Details:

• Proposed rule, withdrawal (prepublication copy),
• USCIS announcement, https://www.uscis.gov/news/alerts/dhs-withdraws-proposed-biometrics-rule

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27. DHS Will Withdraw Proposed Rule on Expanding Biometrics Collection, Use

On May 10, 2021, the Department of Homeland Security (DHS) plans to withdraw a proposed rule concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement.

The proposed rule called for providing DHS with flexibility to change its biometrics collection practices and policies as needed. Included were expanding the use of biometrics beyond background checks and document production to include identity verification and management in the immigration lifecycle, enhancing vetting to prove identity and familial relationships, precluding imposters, and improving consistency in biometrics terminology.

DHS said it still supports some of these goals but “not in a way that conflicts” with Executive Order, 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” which instructs the Secretary of Homeland Security to identify barriers impeding access to immigration benefits.

In response to the notice of proposed rulemaking published on September 11, 2020, DHS received more than 5,000 comments, most of them in opposition. Commenters mentioned immigration policy, privacy, and economic concerns, and said the rule was “unnecessary, offensive, an invasion of privacy, would infringe on freedoms, and [would] violate the respect, privacy rights, and civil liberties of U.S citizens, legal immigrants, noncitizens, victims of domestic violence, other vulnerable parties, and children.” Many commenters also said the rule was “overly broad, highly invasive, and would impose excessive monetary costs on applicants and result in administration delays,” DHS said.

DHS said it will analyze the entirety of the proposed rule in the context of the directive in EO 14012 and consider what changes may be appropriate. In the meantime, DHS will maintain its current biometrics collection practices and policies.

Details:

• Proposed rule, withdrawal (prepublication copy),
• “USCIS Will Suspend Trump-Era Biometric Screening Rule for Work-Permit Applicants,” Reuters, May 4, 2021, https://www.reuters.com/business/legal/uscis-will-suspend-trump-era-biometric-screening-rule-work-permit-applicants-2021-05-04/

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28. DHS Ratifies Rule That Removes 30-Day EAD Processing Requirement

On May 7, 2021, Secretary of Homeland Security Alejandro Mayorkas ratified a rule regarding applications for employment authorization documents (EADs) filed by people who have applied for asylum.

The Department of Homeland Security (DHS) said that although the promulgation of the rule and its ratification “were necessary and justified due to operational realities, Secretary Mayorkas recognizes that work authorization is crucially important to people requesting asylum and reaffirms [DHS’s] commitment to adjudicate applications as quickly and efficiently as possible.” The Department said it “plans to engage in future rulemaking to advance this important interest.”

Details:

• “DHS Ratifies Rule That Removes 30-Day EAD Processing Requirement and Acknowledges Importance of Issuing Timely Work Authorizations,” Dept. of Homeland Security, May 7, 2021, https://www.dhs.gov/news/2021/05/07/dhs-ratifies-rule-removes-30-day-ead-processing-requirement

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29. EOIR Announces 17 New Immigration Judges

The Executive Office for Immigration Review (EOIR) announced 17 new Immigration Judges (IJs), including one Assistant Chief Immigration Judge (ACIJ) and six Unit Chief Immigration Judges (UCIJs).

Attorney General Merrick B. Garland appointed Megan B. Herndon, Wade T. Napier, Tamaira Rivera, David H. Robertson, Elizabeth Crites, Bryan E. DePowell, Nicholle M. Hempel, Kathy J. Lemke, Martinque M. Parker, David M. Paxton, Bryan D. Watson, Kenya L. Wells, and Mark R. Whitworth to their new positions; former Acting Attorney General Monty Wilkinson appointed Adam Perl to his new position; former Acting Attorney General Jeffrey A. Rosen appointed William H. McDermott to his new position; and former Attorney General William P. Barr appointed Elliot M. Kaplan and Jeb T. Terrien to their new positions.

Details:

• “EOIR Announces 17 New Immigration Judges,” Executive Office for Immigration Review, May 6, 2021 (includes biographical information), https://www.justice.gov/eoir/file/1392116/download

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30. ABIL Global: India

The Indian government has simplified the rules for renewal of OCI cards.

The Overseas Citizenship of India (OCI) card is popular among foreign nationals who are of Indian origin and spouses of foreign origin of Indian citizens. The card provides for hassle-free entry and unlimited stay in India.

According to news reports, the Ministry of Home Affairs has simplified the rules regarding renewals. OCI cardholders are no longer required to have their OCI cards reissued each time they obtain a new passport.

Previously, it was mandatory for OCI cards to be re-issued each time a cardholder 20 years of age or younger obtained a new passport, and also at least once after the cardholder obtained a passport after the age of 50. Although the Indian government never enforced this rule consistently and permitted entry to OCIs even if they had not renewed the card, many OCIs frequently faced issues at foreign airports before traveling to India if they had not renewed the OCI card after being issued a new passport. Different airlines interpreted these rules inconsistently.

The new guidance is summarized as follows:

• Card issued before holder turned 20. Those with OCI cards issued before the cardholder turned 20 years old only need to obtain a reissued OCI card once when they obtain a new passport after reaching 20 years of age.
• Card issued after holder turned 20. OCI cardholders who obtained their OCI card after they turned 20 years of age no longer need to obtain a re-issued OCI card and can continue to use their existing card.
• New passport obtained after holder turns 50. OCI cardholders who obtain new passports after the age of 50 are no longer required to have their OCI card reissued.
• New government notification requirements.

• OCI cardholders 20 years of age or younger must upload copies of their new passports with recent passport-size photographs to the OCI online portal each time a new passport is issued, and once after reaching 50 years of age.
• OCI cardholders married to Indian citizens or other OCI cardholders who obtain a new passport must upload a copy of their passport with a recent photograph and a declaration that they are still married.
• Updated documents and photographs may be uploaded by OCI cardholders within three months of receipt of the new passport.
• Travel restrictions. There are no travel restrictions from the date the new passport is issued until new details are recorded on the OCI portal.

The Indian government has yet to post instructions on updating documents and photographs under the relaxed guidance.

Details:

• “Government Simplifies Renewal of OCI Cards,” NDTV, Apr. 16, 2021,

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New Publications and Items of Interest

Training webinar on Labor Dept. e-filing. The Department of Labor announced a training webinar to be held June 23, 2021, on e-filing. Topics will include understanding the dashboard and case details page, how to file cases, receiving served documents, and other issues. https://efile.dol.gov/announcements/efs-webinars-apr-may-june-2021 Webinar on international entrepreneur parole program. USCIS invites stakeholders to a webinar on June 16, 2021, from 2 to 3 p.m. ET, on the international entrepreneur parole program. The webinar will provide an overview of the criteria for consideration for parole, details on how to file, and answers to questions, which should be emailed by June 2 to [email protected]. To register, go to https://public.govdelivery.com/accounts/USDHSCISINVITE/subscriber/new?topic_id=USDHSCISINVITE_408 Immigrant and Employee Rights Section webinars. The Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division is offering free webinars for the public. There are webinars for workers, employers, and advocates. https://www.justice.gov/crt/webinars COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant, up-to-date information. The list of online resources below is intended to serve as a quick reference to the most current available agency information.

General Information

• Coronavirus.gov: Primary federal site for general coronavirus information
• USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
• CDC.gov/coronavirus: Centers for Disease Control and Prevention information

• American Immigration Lawyers Association: https://www.aila.org/advo-media/issues/all/covid-19 (links to practice alerts on this site are restricted to members)
• NAFSA: https://www.nafsa.org/regulatory-information/coronavirus-critical-resources

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

• https://www.dhs.gov/coronavirus-news-updates
• https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

• USCIS: USCIS.gov/coronavirus
• ICE:

• Overview and FAQs: https://www.ice.gov/coronavirus
• Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
  pdf

• CBP:

• Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
• Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

Department of Labor:

• Office of Foreign Labor Certification:

• OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
• COVID-19 FAQs:
  • Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
  • Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
  • Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf

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

• Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html
• Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
• J-1 exchange visitor information: https://j1visa.state.gov/covid-19/

Justice Department

• Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

Agency Twitter Accounts

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

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

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

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ABIL Member / Firm News

Dorothee Mitchell, an attorney and partner at Foster LLP, was named new Honorary Consul of the Federal Republic of Germany in Austin, Texas. Ms. Mitchell was inaugurated by Consul General Thomas Meister at a ceremony on May 11, 2021. Ms. Mitchell is licensed to practice law in both the United States and in Germany. She is a native German speaker with fluency in English, and is a dual German-U.S. citizen with extensive German and U.S. legal experience. She has lived in Austin, Texas, for the past 15 years and is well-connected in the German community in Austin. https://www.germany.info/us-en/embassy-consulates/gkhoustonen/-/2458662

Jeff Joseph, of Joseph & Hall, PC; Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm); and Greg Siskind, of Siskind Susser, PC, along with the American Immigration Lawyers Association and several other nonprofit organizations, filed a federal lawsuit challenging a rule that would prioritize H-1B visas based on wage levels. Among other things, the plaintiffs argue that the rule would “have a deleterious impact on small business, start-ups, non-profits, rurally located business and other industries that rely on foreign highly skilled workers, but who are not able to compensate workers at the highest wage level.” According to reports, the lawsuit also notes that Chad Wolf, who reviewed and approved the final rule, was not properly appointed as Acting Secretary of Homeland Security and thus lacked the authority to promulgate the rule. https://timesofindia.indiatimes.com/world/us/lawsuit-against-biden-admin-challenges-proposed-allocation-of-h-1b-visas-based-on-wages/articleshow/82733895.cms

Klasko Immigration Law Partners, LLP, has posted the latest episode in its “Statutes of Liberty” series: “The International Entrepreneur Rule is Back!” (Episode 25)

Klasko Immigration Law Partners, LLP, has released the third and final episode in a three-part series about problems in the EB-5 investor program. This episode covers litigation options

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has authored several new blog posts: “State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad is Welcome and Consistent With Federal Court Decisions,” http://blog.cyrusmehta.com/2021/06/3440.html; “Proposals for Shattering Barriers and Obstacles to Legal Immigration Without Waiting for Congress to Act.” http://blog.cyrusmehta.com/2021/05/proposals-for-shattering-barriers-and-obstacles-to-legal-immigration-without-waiting-for-congress-to-act.html

Mr. Mehta co-authored a new blog post: “U.S. Imposes Covid Travel Ban on India: How Effective Are Such Travel Bans?” http://blog.cyrusmehta.com/2021/05/us-imposes-covid-travel-ban-on-india-how-effective-are-such-travel-bans.html

Mr. Mehta was quoted extensively by the Times of India in “U.S. Immigration Reforms: Stop Counting Family Members to Mitigate Green Card Backlogs, Says Cyrus Mehta, Immigration Attorney.” The article reported on his recommendations to overcome barriers to legal immigration. https://bit.ly/3fAGjNd

Mr. Mehta was quoted in several articles about H-1B temporary workers who traveled to India to look after their Covid-stricken parents and are now stranded there:

• “They Went Back to India to Care for Parents Dying of COVID-19. Now, They’re Stranded,” Mother Jones, May 6, 2021. Mr. Mehta said that the ban on travel from India isn’t very useful in stopping the spread of the virus since citizens, permanent residents, and others are still allowed to travel. But the ban disproportionately affects those who are working on temporary visas such as the H-1B visa. “Representing H1B visa holders, I know what they’ve gone through. Each time they go to India, there’s a ban imposed on them. In the Trump administration, they were subject to bans. Then they wait patiently. They’ve now scheduled a visa appointment. And their appointment for later this week has been cancelled because of this latest COVID ban on India. So they’ve got a double whammy.” He suggested stricter controls and protocols such as rigorous testing, quarantining, and vaccination requirements as a better approach to controlling the spread of the virus, the article noted. https://bit.ly/3w9BhN4
• “As U.S. Travel Ban Kicks In, Families Are Sundered and Plans Are Disrupted,” Times of India, May 5, 2021. Instead of banning nonimmigrant professionals from India, who may have been vaccinated or tested negative for the virus, while allowing in students, green card holders, and citizens from around the world who may be carrying the virus, “[i]sn’t it better to ensure that travelers to [the United States] are vaccinated and/or test negative and quarantine?” he said. Mr. Mehta added that the ban is disproportionately affecting professionals from India and the virus “does not know the difference” between citizens and nonimmigrants. https://bit.ly/2QqKGRq

Mr. Mehta spoke on “Australian Gold Rush or Cave In? Navigating the Minefield of Dual Representation in Family-Based Immigration” at the 2021 Annual Conference of the American Immigration Lawyers Association’s Asia-Pacific Chapter (APAC) on May 10, 2021.

Several ABIL members/firms submitted comments in response to the Biden administration’s invitation to suggest ways to overcome barriers to legal immigration:

• Mehta, https://www.regulations.gov/comment/USCIS-2021-0004-6585
• Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm), https://www.regulations.gov/comment/USCIS-2021-0004-7288
• Siskind, https://www.regulations.gov/comment/USCIS-2021-0004-5933

Mr. Paparelli; Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US), and Nicolai Hinrichsen, a partner at Miller Mayer, LLP; and Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) and Vivian Zhu, a partner at Wolfsdorf Rosenthal LLP, were listed in the 2021 edition of EB5 Investors Magazine‘s awards issue. https://www.eb5investors.com/magazine/article/eb5-top25-attorneys-immigration-attorneys

Mr. Siskind was quoted by the New York Times in “They Live in the U.S., But They’re Not Allowed to Come Home.” Mr. Siskind said that the Biden administration “just put the same blanket ban for India that they were using in the Trump administration. He is suing the administration over the Department of State’s inability to issue visas in countries experiencing lockdowns. “This was the same style ban that President Biden said last March was ineffective and was a bad idea.” https://www.nytimes.com/2021/05/17/us/politics/india-travel-restrictions.html

Wolfsdorf Rosenthal LLP published a new blog post: “HR is Driving the Economy With Foreign-Born Talent”; “Biden’s Actions on Immigration Enforcement Have Been Inconsistent Since Taking Office”; “Do H-1B Workers Displace American Workers? It’s Not a Zero-Sum Game”; and “DHS to Withdraw Trump Opposition to International Entrepreneur Parole Rule.” https://wolfsdorf.com/news/

Mr. Yale-Loehr was quoted by Brasil de Fato in “American Dream, International Nightmare: Immigration to the USA.” He said, “The last time we reformed immigration rules was in 1996, so for 25 years we’ve seen mismanagement of resources and a Congress acting under outdated laws.” Mr. Yale-Loehr also said that “every administration has a lot of power to interpret these laws more rigidly or lightly. [Former President] Trump interpreted it harshly, while [President] Biden promises to adopt more serenity. Part of this complexity reflects the scale of the challenge of creating a series of general regulations that affect millions of people, from those who want to come to the U.S. for a short period, as tourists, to those who want to come as students, who flee some kind of persecution, or who want to naturalize themselves as American citizens.” https://www.brasildefato.com.br/2021/06/03/sonho-americano-pesadelo-internacional-a-imigracao-aos-eua (Portuguese with English translation available)

Mr. Yale-Loehr co-wrote an article, “Using Existing Immigration Categories Creatively to Support Immigrant Entrepreneurs.” https://millermayer.com/2016/visa-options-immigrant-entrepreneurs/

Mr. Yale-Loehr supervised a case in Cornell Law School’s Asylum Clinic recently. An article about the case, “Asylum Clinic Wins Release for Cuban Doctor Detained by ICE,” was published in the Cornell Chronicle on June 1, 2021. https://news.cornell.edu/stories/2021/06/asylum-clinic-wins-release-cuban-doctor-detained-ice

Mr. Yale-Loehr was quoted by Univision in “Biden Moves Forward With His Plan to Eliminate ‘Zero Tolerance’ and Expand Legal Migration.” He said, “The administrative reforms proposed by the Biden administration are a good first step, but they will take time to implement and will be challenged in court. In addition, Republicans will use immigration against Biden in the 2022 midterm elections. Finally, the next president could undo any administrative reform.” https://www.univision.com/noticias/inmigracion/politica-migratoria-biden-se-basa-desaparecer-tolerancia-cero-trump (Spanish with English translation available)

Mr. Yale-Loehr was interviewed in a podcast, Immigration Nerds. https://player.captivate.fm/episode/c8dc09d2-b41e-492e-9d29-5aef3bb99d54

Mr. Yale-Loehr co-authored an article with Leon Rodriguez (partner at Seyfarth Shaw LLP and former USCIS Director) and others called “Unleashing International Entrepreneurs to Help the U.S. Economy Recover from the Pandemic.” The article, published by the Brookings Institution, recommends several ways to make it easier for international entrepreneurs to work in the United States and build or grow new companies. https://www.brookings.edu/research/unleashing-international-entrepreneurs-to-help-the-u-s-economy-recover-from-the-pandemic/

Mr. Yale-Loehr authored an op-ed for The Hill that was mentioned in a Forbes article, “What International Students and U.S. Universities Need to Know.” Forbes article: https://www.forbes.com/sites/stuartanderson/2021/05/03/what-international-students-and-us-universities-need-to-know/?sh=5ef5033c79d2; Hill op-ed: “Biden Brings Hope for International Students,” https://thehill.com/opinion/immigration/550110-biden-brings-hope-for-international-students

Mr. Yale-Loehr co-authored an article in the New England Journal of Medicine about a Cornell University asylum clinic client, Dr. Merlys Rodriguez Hernandez, who was in immigration detention while seeking asylum during the Covid-19 pandemic. She is now released on bond but still fighting deportation. The article, “Graphic Perspective: Detained,” is accessible to nonsubscribers with site registration. https://www.nejm.org/doi/full/10.1056/NEJMp2032690

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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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