In this issue:

1. USCIS Will Conduct Second Random Selection for Regular Cap From Previously Submitted FY 2025 H-1B Cap Registrations – U.S. Citizenship and Immigration Services will select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation. USCIS will make the selections from previously submitted electronic registrations using a random selection process.

2. I-9 Expiration Date Extended – U.S. Citizenship and Immigration Services has extended the expiration date of Form I-9, Employment Eligibility Verification, to 05/31/2027.

3. USCIS Releases Stats on O-1A Visas, National Interest Waivers, and EB-2 Receipts Since 2022 Guidance – U.S. Citizenship and Immigration Services has reported movement in the numbers of O-1A and EB-2 visa applications and approvals since Biden administration guidance was released in early 2022, along with an overall increase in applications for national interest waivers, although the approval rate for the latter declined. The approval rate for both O-1A and EB-2 applications remained at 90 percent or above in fiscal years 2018 through 2023.

4. DOS Issues Notice of Class-Wide Relief in Emami Litigation – The Department of State announced class-wide relief to begin August 12, 2024, following litigation, “to allow certain visa applicants who were refused visas under Presidential Proclamation 9645…to receive a one-time, non-transferable fee credit to submit a new visa application and (for eligible class members) to have the option to get a prioritized visa appointment.”

5. CIS Ombudsman Expands Nationwide Reach With Regional Representatives – The Citizenship and Immigration Services Ombudsman has expanded its reach across the United States with four regional representatives based in Los Angeles (Western), Dallas (Central), Boston (Northeast), and Orlando (Southeast).

6. DHS Adds Environmental Economics to STEM Designated Degree Program List – The Department of Homeland Security has amended its Science, Technology, Engineering and Mathematics Designated Degree Program List by adding “Environmental/Natural Resource Economics” to the qualifying fields of study

7. White House Orders Deferred Enforced Departure for Certain Lebanese Nationals – President Biden issued a memorandum directing the deferral, for 18 months, of the removal of any Lebanese national who was present in the United States on July 23, 2024, with a few exceptions.

8. USCIS Increases Investment and Revenue Thresholds Under International Entrepreneur Rule – In a final rule effective October 1, 2024, U.S. Citizenship and Immigration Services will increase the investment and revenue thresholds under International Entrepreneur Rule, as required every three years. The application fee will not change.

9. DOS Clarifies Guidance on Easing the Nonimmigrant Visa Process for College Graduates – On June 18, 2024, the Biden administration announced actions to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer. As part of this initiative, the Department of State clarified existing guidance to consular officers related to when they should consider recommending that the Department of Homeland Security grant a waiver of ineligibility, where applicable.

10. USCIS Issues New Policy Guidance on Noncompliance With EB-5 Regional Center Program – U.S. Citizenship and Immigration Services has issued policy guidance, effective immediately, on new provisions in the Immigration and Nationality Act that cover consequences for noncompliance with the EB-5 immigrant investor regional center program.

11. USCIS Publishes FAQs on H-1B Nonimmigrant Status – U.S. Citizenship and Immigration Services released frequently asked questions that address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident status, job changes or terminations, international travel, and dependent family members.

12. TPS Extended and Redesignated for Somalia; Work Authorization for F-1 Nonimmigrant Students From Somalia Announced – The Department of Homeland Security (DHS) announced that the designation of Somalia for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, to March 17, 2026. DHS also announced work authorization relief for F-1 students from Somalia.

13. USCIS Updates Public Information on International Entrepreneur Rule – U.S. Citizenship and Immigration Services (USCIS) recently updated its public information under the International Entrepreneur Rule.

14. TPS Extended and Redesignated for Yemen; Work Authorization for F-1 Nonimmigrant Students From Yemen Announced – The Department of Homeland Security announced that the designation of Yemen for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, ending on March 3, 2026. DHS also announced work authorization relief for F-1 students from Yemen.

15. Visa Bulletin: No Further Retrogression in EB-3 Category for August – The bulletin notes that although retrogression has not been necessary for August in the EB-3 category, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September.

16. DHS Proposes Expansion of Hefty Fees on H-1B and L-1 Visas Under 9-11 Response and Biometric Entry-Exit Requirements – The proposed regulatory changes would require covered employers to submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status.

17. USCIS Seeks Comments on Revisions to Application for Employment Authorization – Comments are due by August 12, 2024.

18. OFLC Releases Technical Notes on How It Will Apply the 2018 Standard Occupational Classification to Wages – The Department of Labor’s Office of Foreign Labor Certification (OFLC) released technical notes that explain how OFLC will apply the 2018 Standard Occupational Classification structure to Occupational Employment and Wage Statistics wages for the July 2024 through June 2025 wage year.

19. ABIL Global: France – A new law to control immigration entered into force on January 26, 2024. France also announced procedures related to the Olympic and Paralympic 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 – August 2024

1. USCIS Will Conduct Second Random Selection for Regular Cap From Previously Submitted FY 2025 H-1B Cap Registrations

Following its initial selections in March 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it will need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation. USCIS will make the selections from previously submitted electronic registrations using a random selection process.

USCIS said it will notify prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary. Those with selected registrations will have their USCIS online accounts updated to include a selection notice, which includes details of when and where to file.

USCIS will not conduct a second selection for the advanced degree exemption (master’s cap) because a sufficient number of master’s cap registrations were already selected and petitions received are projected to meet the FY 2025 master’s cap numerical allocation. The second round of selection for the regular cap will include previously submitted registrations that indicated eligibility for the master’s cap along with those that indicated only eligibility for the regular cap.

Details:

• USCIS notice (July 30, 2024).

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2. I-9 Expiration Date Extended

U.S. Citizenship and Immigration Services (USCIS) has extended the expiration date of Form I-9, Employment Eligibility Verification, to 05/31/2027.

Employers must use the Form I-9 with the edition date of 08/1/23, which may have an expiration date of either 07/31/2026 or 05/31/2027. Either form may be used until its respective expiration date, USCIS said. However, downloads from the Form I-9 download page will only include the new 05/31/2027 expiration date.

USCIS said that employers “are encouraged to update their electronic Forms I-9 systems to use the 05/31/2027, expiration date as soon as possible and must do so no later than July 31, 2026, the expiration date on the previously issued Form I-9.”

Details:

• USCIS notice (Aug. 2, 2024).

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3. USCIS Releases Stats on O-1A Visas, National Interest Waivers, and EB-2 Receipts Since 2022 Guidance

U.S. Citizenship and Immigration Services (USCIS) has reported movement in the numbers of O-1A and EB-2 visa applications and approvals since Biden administration guidance was released in early 2022, along with an overall increase in applications for national interest waivers, although the approval rate for the latter declined. The approval rate for both O-1A and EB-2 applications remained at 90 percent or above in fiscal years (FYs) 2018 through 2023. Below are highlights.

O-1A Visas: Applications and Approvals Increased

According to reports, after the Biden administration announced new guidance in January 2022, there were significant increases in applications and approvals for high-skilled visas, including O-1A visas for individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures, or television industry).

The 2022 guidance provided “examples of evidence that may satisfy the O-1A evidentiary criteria and discusse[d] considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM [science, technology, engineering, and mathematics] fields and the complexity of the evidence often submitted.”

U.S. Citizenship and Immigration Services (USCIS) reported that from FY 2021 to FY 2022, total receipts of Forms I-129 for O-1A petitioners increased 29 percent, from 7,710 to 9,970. They continued to increase slightly from 9,970 in FY 2022 to 10,010 in FY 2023. Approvals followed a similar trend by increasing by 25 percent from FY 2021 to FY 2022, from 7,320 to 9,120. They continued to increase slightly from 9,120 in FY 2022 to 9,490 in FY 2023. The approval rate remained stable at 90 percent or above in FYs 2018 through 2023.

EB-2 Receipts Increased; Approvals Increased, Then Decreased

There were also increases in EB-2 receipts, although approvals declined after increasing. USCIS reported that from FY 2021 to FY 2022, total receipts of Forms I-140 with and without waivers (combined) increased by 20 percent, from 70,600 to 84,470. Receipts continued to increase by another 10 percent from FY 2022 to FY 2023. Approvals increased by 60 percent from 57,810 in FY 2021 to 92,280 in FY 2022 but decreased about 12 percent from 92,280 in FY 2022 to 81,380 in FY 2023. The approval rate remained at 90 percent or above in FYs 2018 through 2023.

USCIS also noted that total EB-2 receipts in STEM job categories decreased by almost 13 percent, from 61,790 in FY 2022 to 53,960 in FY 2023. Receipts in non-STEM job categories increased by 28 percent during that time. Increasing numbers of EB-2 petitioners are requesting national interest waivers.

Details:

• STEM-Related Petition Trends: EB-2 and O-1A Categories FY 2018-FY 2023, USCIS (N.D.)
• O-1A Visas, National Interest Waivers Rise After Immigration Guidance, Forbes (July 30, 2024).

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4. DOS Issues Notice of Class-Wide Relief in Emami Litigation

The Department of State (DOS) announced class-wide relief to begin August 12, 2024, following litigation in the consolidated cases Emam v. Mayorkas and Pars Equality Center v. Blinken, “to allow certain visa applicants who were refused visas under Presidential Proclamation 9645…to receive a one-time, non-transferable fee credit to submit a new visa application and (for eligible class members) to have the option to get a prioritized visa appointment.” The fee credit may be used once toward any immigrant or nonimmigrant visa at any U.S. embassy or consulate, DOS said.

Class members include eligible nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were denied a visa under Presidential Proclamation 9645 between December 8, 2017, and January 20, 2021, and did not receive a waiver under Presidential Proclamation 9645. The notice includes details on eligibility and how to apply.

Details:

• DOS notice (Aug. 2, 2024).

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5. CIS Ombudsman Expands Nationwide Reach With Regional Representatives

The Citizenship and Immigration Services (CIS) Ombudsman has expanded its reach across the United States with four regional representatives based in Los Angeles (Western), Dallas (Central), Boston (Northeast), and Orlando (Southeast).

According to a statement from the CIS Ombudsman’s office, the regional representatives will:

• Engage with local immigration stakeholders to build relationships and hear about their experiences with U.S. Citizenship and Immigration Services (USCIS);
• Help identify issues that may only be occurring in specific areas or USCIS offices;
• Share feedback from local stakeholders with the CIS Ombudsman’s headquarters team to inform the recommendations it sends to USCIS to improve the agency’s policies and processes; and
• Provide an overview of the CIS Ombudsman’s case assistance services and clarify the process to the public.

The CIS Ombudsman said its public engagement team will continue to meet with stakeholders throughout the country, focusing on national and international organizations and employers, foreign embassies and consulates, and headquarters-level components of other federal departments and agencies.

Details:

• CIS Ombudsman statement (Aug. 2, 2024).

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6. DHS Adds Environmental Economics to STEM Designated Degree Program List

Effective July 23, 2024, the Department of Homeland Security (DHS) has amended its STEM [Science, Technology, Engineering and Mathematics] Designated Degree Program List by adding “Environmental/Natural Resource Economics” to the qualifying fields of study, and the corresponding Department of Education Classification of Instructional Programs code for that field:

The list is used to determine whether a degree obtained by certain F-1 nonimmigrant students following the completion of a program of study qualifies as a STEM degree as determined by DHS, as required for the F-1 student to be eligible to apply for a 24-month extension of their post-completion optional practical training (OPT) work authorization (EAD).

Details:

• DHS notice, 89 Fed. Reg. 59748 (July 23, 2024).

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7. White House Orders Deferred Enforced Departure for Certain Lebanese Nationals

On July 26, 2024, President Biden issued a memorandum directing the deferral, for 18 months, of the removal of any Lebanese national who was present in the United States on that date, with a few exceptions.

The memo also directs the Department of Homeland Security to authorize employment for noncitizens whose removal has been deferred under the memo for the duration of such deferral, and to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Lebanese nationals “as the Secretary of Homeland Security determines to be appropriate.”

Details:

• White House memorandum (July 26, 2024).

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8. USCIS Increases Investment and Revenue Thresholds Under International Entrepreneur Rule

In a final rule effective October 1, 2024, U.S. Citizenship and Immigration Services (USCIS) will increase the investment and revenue thresholds under the International Entrepreneur Rule (IER), as required every three years. The application fee will not change.

The IER allows the Department of Homeland Security (DHS) to “grant a period of authorized stay [parole], on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.” Under the rule, entrepreneurs granted parole are eligible to work only for their start-up businesses. The spouses and children of noncitizen entrepreneur may also be eligible for parole.

USCIS will make the following adjustments:

• For an initial application, entrepreneurs must show at least $311,071 (currently $264,147) in qualified investments from qualifying investors, at least $124,429 (currently $105,659) in qualified government awards or grants, or, if only partially meeting the threshold investment or award criteria, alternative reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
• For a second period of authorized stay under the IER, the entrepreneur generally must demonstrate that the start-up entity has either:
  • Received a qualified investment, qualified government grants or awards, or a combination of such funding, of at least $622,142 (currently $528,293);
  • Created at least five qualified jobs; or
  • Reached annual revenue in the United States of at least $622,142 (currently $528,293) and averaged at least 20% in annual revenue growth.
• The definition of a “qualified investor” requires the investor to have a history of substantial investment in successful startup entities. USCIS generally considers such an individual or organization a qualified investor if, during the preceding five years, the following apply:
  • The individual or organization made investments in startup entities of at least $746,571 (currently $633,952) in total, in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within the startup entities’ respective industries; and
  • After such investment by such individual or organization, at least two such startup entities each created at least five qualified jobs or generated at least $622,142 (currently $528,293) in revenue with average annualized revenue growth of at least 20%.

Details:

• USCIS final rule, 89 Fed. Reg. 60298 (July 25, 2024).

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9. DOS Clarifies Guidance on Easing the Nonimmigrant Visa Process for College Graduates

On June 18, 2024, the Biden administration announced actions to more efficiently process employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer. As part of this initiative, on July 15, 2024, the Department of State (DOS) clarified existing guidance to consular officers related to when they should consider recommending that the Department of Homeland Security grant a waiver of ineligibility under INA § 212(d)(3), where applicable.

The DOS guidance explains that there is a clear and significant U.S. public interest in requesting a waiver on an expedited basis “if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States.”

Details:

• DOS notice (July 15, 2024).
• DOS Foreign Affairs Manual guidance (July 15, 2024).
• White House Fact Sheet (June 18, 2024).

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10. USCIS Issues New Policy Guidance on Noncompliance With EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance, effective immediately, on new provisions in the Immigration and Nationality Act (INA) that cover consequences for noncompliance with the EB-5 regional center program.

The guidance updates Part G, Investors, in Volume 6 of the Policy Manual, to incorporate statutory reforms included in the EB-5 Reform and Integrity Act of 2022 (RIA). USCIS explained:

The guidance interprets the provisions related to sanctions, including terminations, debarments, and suspensions, for noncompliant regional centers, new commercial enterprises, job-creating entities, investors, and others. The guidance also explains what may be considered threats to the national interest, fraud, intentional material misrepresentation, deceit, and criminal misuse in the context of discretionary determinations that require us to take adverse action on certain EB-5 petitions, applications, and benefits. It also outlines special considerations for good-faith pre-RIA investors a to retain eligibility under INA sec. 203(b)(5)(M) after we terminate or debar their regional center, new commercial enterprise, or job-creating entity due to noncompliance.

Details:

• USCIS alert (July 16, 2024).

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11. USCIS Publishes FAQs on H-1B Nonimmigrant Status

U.S. Citizenship and Immigration Services (USCIS) released frequently asked questions (FAQs) that address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident (LPR) status, job changes or terminations, international travel, and dependent family members.

For example, USCIS noted that:

• An eligible H-1B worker can change employers as soon as the new employer’s nonfrivolous H-1B petition is properly filed with USCIS.
• USCIS will not revoke a Form I-140 petition approval solely due to termination of the petitioner’s business or the employer’s withdrawal, as long as the petition has been approved for at least 180 days or the associated adjustment of status application has been pending for at least 180 days, and the petition approval is not revoked on other grounds. In this scenario, the H-1B worker would retain their priority date.
• When an H-1B worker’s employment is terminated (either voluntarily or involuntarily), they typically may take one of several actions to remain in a period of authorized stay in the United States beyond 60 days.

A chart in the FAQs summarizes some common scenarios for H-1B workers.

Details:

• USCIS FAQs for Individuals in H-1B Nonimmigrant Status (July 17, 2024).

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12. TPS Extended and Redesignated for Somalia; Work Authorization for F-1 Nonimmigrant Students From Somalia Announced

The Department of Homeland Security (DHS) announced that the designation of Somalia for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, from September 18, 2024, to March 17, 2026. DHS also announced work authorization relief for F-1 students from Somalia. Below are highlights of DHS’s actions.

TPS Extension and Redesignation

The 60-day re-registration period for existing beneficiaries began July 22, 2024, and runs through September 20, 2024. U.S. Citizenship and Immigration Services (USCIS) encourages those who currently have TPS to timely re-register during the re-registration period and not wait until their Employment Authorization Documents (EADs) expire because delaying re-registration could result in gaps in their employment authorization documentation. DHS said that USCIS will continue to process pending applications filed under previous TPS designations for Somalia.

The redesignation of Somalia for TPS allows an estimated 4,300 Somali nationals (and individuals having no nationality who last habitually resided in Somalia) who have been continuously residing in the United States since July 12, 2024, to file initial applications for TPS if they are otherwise eligible. The extension of TPS for Somalia allows approximately 600 current beneficiaries to retain TPS through March 17, 2026, if they continue to meet TPS eligibility requirements.

DHS said it recognizes that not all re-registrants may receive a new EAD before their current EAD expires. For that reason, DHS is automatically extending through September 17, 2025, the validity of certain EADs previously issued under Somalia’s TPS designation.

Work Authorization Relief for F-1 Nonimmigrant Students From Somalia

DHS is also suspending certain regulatory requirements for F-1 nonimmigrant students from Somalia. These students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant status.

An F-1 nonimmigrant student must file Form I-765, Application for Employment Authorization, with USCIS to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current crisis in Yemen.

Details:

• DHS news release (July 19, 2024).
• USCIS TPS notice, 89 Fed. Reg. 59135 (advance copy) (July 22, 2024).
• S. Immigration and Customs Enforcement notice on employment authorization for F-1 students from Somalia, 89 Fed. Reg. 59129 (advance copy) (July 22, 2024).

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13. USCIS Updates Public Information on International Entrepreneur Rule

U.S. Citizenship and Immigration Services (USCIS) recently updated its public information under the International Entrepreneur Rule (IER). USCIS noted that the rule allows the Department of Homeland Security (DHS) to “grant a period of authorized stay [parole], on a case-by-case basis, to noncitizen entrepreneurs who show that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.”

Under the rule, entrepreneurs granted parole are eligible to work only for their start-up business. The spouse and children of the noncitizen entrepreneur may also be eligible for parole, USCIS noted. The agency listed several “threshold criteria and key elements” of the rule:

• Entrepreneurs may be either living abroad or already in the United States.
• Start-up entities must have been formed in the United States within the past five years.
• Start-up entities must demonstrate substantial potential for rapid growth and job creation by showing at least $264,147 in qualified investments from qualifying investors, at least $105,659 in qualified government awards or grants, or alternative evidence.
• The spouse of the entrepreneur may apply for employment authorization after being paroled into the United States.
• The entrepreneur may be granted an initial parole period of up to 2½ years. If approved for re-parole, based on additional benchmarks in funding, job creation, or revenue described in the guidance, the entrepreneur may receive up to another 2½ years, for a maximum of five years. (At that point or earlier, there are other Options for Noncitizen Entrepreneurs to Work in the United States, USCIS noted.)
• Up to three entrepreneurs per start-up can be eligible for parole under the rule.

Details:

• USCIS guidance (July 12, 2024).

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14. TPS Extended and Redesignated for Yemen; Work Authorization for F-1 Nonimmigrant Students From Yemen Announced

The Department of Homeland Security (DHS) announced that the designation of Yemen for Temporary Protected Status (TPS) has been extended and redesignated for 18 months, beginning on September 4, 2024, and ending on March 3, 2026. DHS also announced work authorization relief for F-1 students from Yemen. Below are highlights of DHS’s actions.

TPS Extension and Redesignation for Yemen

This extension and redesignation allows Yemeni nationals (and individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 2, 2024, and who have been continuously physically present in the United States since September 4, 2024, to apply or re-register for TPS, the notice states.

The 60-day re-registration period for existing beneficiaries began on July 10, 2024, and runs through September 9, 2024. U.S. Citizenship and Immigration Services encouraged re-registrants to timely re-register during the re-registration period and not wait until their Employment Authorization Documents (EADs) expire because delaying re-registration could result in gaps in their employment authorization documentation.

The redesignation of Yemen for TPS allows an estimated 1,700 Yemeni nationals (and individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 2, 2024, to file initial applications for TPS if they are otherwise eligible, the notice states. The extension of TPS for Yemen allows approximately 2,300 current beneficiaries to retain TPS through March 3, 2026, if they continue to meet TPS eligibility requirements.

Work Authorization Relief for F-1 Nonimmigrant Students From Yemen

DHS is also suspending certain regulatory requirements for F-1 nonimmigrant students from Yemen who are experiencing severe economic hardship as a direct result of the current crisis in Yemen. These students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant status. This action covers eligible F-1 nonimmigrant students from Yemen beginning on September 4, 2024, and ending on March 3, 2026.

An F-1 nonimmigrant student must file Form I-765, Application for Employment Authorization, with U.S. Citizenship and Immigration Services to apply for off-campus employment authorization based on severe economic hardship directly resulting from the current crisis in Yemen.

Details:

• DHS notice of TPS extension and redesignation for Yemen, 89 Fed. Reg. 56765 (July 10, 2024).
• DHS notice of work authorization relief for Yemeni F-1 nonimmigrant students, 89 Fed. Reg. 56759 (July 10, 2024).
• DHS news release on Yemeni TPS (July 8, 2024).

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15. Visa Bulletin: No Further Retrogression in EB-3 Category for August

The Department of State’s Visa Bulletin for August 2024 shows no further retrogression in the EB-3 visa category following retrogression in July. However, the August bulletin notes:

As readers were informed in Item D of the July 2024 Visa Bulletin, demand and number use has remained high in the EB-3 visa category. Although retrogression has not been necessary for August, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

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16. DHS Proposes Expansion of Hefty Fees on H-1B and L-1 Visas Under 9-11 Response and Biometric Entry-Exit Requirements

The Department of Homeland Security (DHS) has proposed to amend and clarify regulations concerning the 9-11 Response and Biometric Entry-Exit fee for H-1B and L-1 visas. The proposed regulatory changes would require covered employers to “submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies, so as to include extension-of-stay petitions that do not involve a change of employer. The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status.”

Reaction. Commenting on the proposed rule on July 8, 2024, the American Immigration Lawyers Association (AILA) noted that “DHS is proposing to significantly change its interpretation regarding when the 9-11 Biometric Fee, implemented under Public Law 114-113 for H-1B and L-1 visas, is required. This law created an additional fee of $4,000 for H-1B petitions and $4,500 for L-1 petitions when H-1B or L-1 workers comprise more than 50% of the petitioner’s U.S. workforce (Covered Employers). This fee is in addition to the other filing fees associated with these petitions.” In 2019, AILA explained, “in response to the DHS proposed revisions to the USCIS fee schedule that was ultimately enjoined, AILA urged DHS not to adopt the same statutory interpretation it proposes now, citing, among other reasons, the significant harm it would cause for certain U.S. employers, and that it was contrary to the plain language and intent of the statute.” In its comment, AILA delineated the reasons for its disagreement with the current proposal, which would require covered employers to pay the 9-11 Biometric Fee “not only for initial benefit requests with which all employers must include the Fraud Fee but also for requests by the same Covered Employer to extend the same worker’s H-1B or L-1 status, even though in the latter scenario the Fraud Fee is not required.”

Details:

• DHS proposed rule (U.S. Customs and Border Protection), 89 Fed. Reg. 48339 (June 6, 2024).
• AILA comment (July 8, 2024).

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17. USCIS Seeks Comments on Revisions to Application for Employment Authorization

U.S. Citizenship and Immigration Services (USCIS) seeks additional comments on its revisions to Form I-765, Application for Employment Authorization. Comments are due by August 12, 2024.

The notice states that instead of going to a Social Security Office, an applicant for work authorization can now apply for a Social Security Number (SSN) and Social Security card using Form I-765. If the relevant data elements are filled out, USCIS will send the applicant’s information to the Social Security Administration (SSA) upon approval of the employment authorization request. If the applicant already has an SSN and requested a Social Security card on Form I-765, SSA will issue a replacement SSN card.

Details:

• USCIS 30-day notice, 89 Fed. Reg. 57159 (July 12, 2024).

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18. OFLC Releases Technical Notes on How It Will Apply the 2018 Standard Occupational Classification to Wages

The Department of Labor’s Office of Foreign Labor Certification (OFLC) released technical notes that explain how OFLC will apply the 2018 Standard Occupational Classification (SOC) structure to Occupational Employment and Wage Statistics (OEWS) wages for the July 2024 through June 2025 wage year.

OFLC said that OEWS has aggregated certain 2018 SOC detailed occupations into a single broad occupation. OFLC will apply the single broad occupation wage estimate to each of the 2018 SOC detailed occupations. OEWS has published a list of OEWS occupations and definitions that include 2018 SOC detailed occupations that have been aggregated; a link to the list is included in the technical notes.

OFLC also explained that in certain instances, the 2018 SOC codes “may be aggregated, may not have wage estimates due to OEWS data limitations, may not have American Competitiveness and Workforce Improvement Act (ACWIA) Higher Education wage estimates due to OEWS data limitations, or may not have Job Zone data due to the Occupational Information Network (O*NET) data limitations.” The technical notes include examples of such instances.

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19. ABIL Global: France

A new law to control immigration entered into force on January 26, 2024. France also announced procedures related to the Olympic and Paralympic 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.

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 are taking place in Paris and other cities (Marseille, Toulouse, Lille). They began July 26 and will run until 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 early August, 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

On August 7, 2024, the Department of Labor will host a public webinar (scroll to July 26, 2024) to educate stakeholders, program users, and other interested members of the public on the changes to the H-2A nonimmigrant agricultural workers program made by the 2024 H-2A Farmworker Protection Final Rule. Participants in this webinar will receive tips on the new forms, filing instructions, and explanation of the transition process. The Final Rule became effective June 28, 2024, and the Office of Foreign Labor Certification will begin accepting applications subject to the provisions of this rule on August 29, 2024.

Video of briefing on executive actions to streamline D-3 waivers and access to employment-based visas for college and university graduates, including Dreamers. On July 10, 2024, the Presidents’ Alliance, TheDream.US, Cornell Law School, and partners hosted a briefing on the significance of the Biden-Harris administration’s new executive actions to streamline D-3 waivers and access to employment-based visas for eligible college and university graduates, including Deferred Action for Childhood Arrivals (DACA) recipients and other Dreamers. The briefing covered various topics, including who could be eligible and how businesses and campuses can engage to support eligible beneficiaries.

CIS Ombudsman updated FAQ page, webinar on Annual Report. The Citizenship and Immigration Services Ombudsman recently updated its Frequently Asked Questions page. Also, the CIS Ombudsman held a webinar on its 2024 Annual Report on July 30, 2024.

E-Verify webinars: E-Verify has updated its calendar of webinars. There is a new webinar focusing on acceptable documents for the Form I-9 work authorization verification process, to be presented August 14 and 27, 2024. Other topics include E-Verify for existing and Web services users, employee rights, employer responsibilities, information for federal contractors, an overview of E-Verify and Form I-9 requirements, and myE-Verify, among others.

SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) has updated its calendar of webinars. Topics include current users and best practices, and an overview.

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

Dagmar Butte was quoted by Forbes in O-1A Visas, National Interest Waivers Rise After Immigration Guidance. She said she was not surprised that the approval rate for national interest waivers declined. “I think while the category has been broadened, Matter of Dhanasar still rules the day, so for me, every case has to pass that test before I’ll file it.” Ms. Butte referenced the Administrative Appeals Office decision Matter of Dhanasar (December 27, 2016), which established a three-factor test for national interest waivers.

Klasko Immigration Law Partners, LLP (KILP) is celebrating its 20^th anniversary since its formation as a firm in 2004. Since its inception, KILP has grown from four partners to nine, from 30 employees to more than 110, from offices in two cities to offices in three cities with employees in 19 states. Over the last 20 years, KILP attorneys and the firm have been recognized by various publications, such as Chambers and Partners, U.S. News & World Report’s Best Lawyers in America©, Best Law Firms in America©, and Best Companies to Work For; EB5 Investors magazine; Human Resources Executive magazine; Lawdragon; and Lexology.

Cyrus Mehta authored a blog post: Obtaining Advance Parole on a Pending Adjustment of Status Application.

Mr. Mehta and Jessica Paszko authored a blog post: Does the Signing of the I-485 Supplement J by a New Employer Constitute Visa Sponsorship?

Greg Siskind of Siskind Susser PC authored a column on mastermind groups that was published by the American Bar Association (available by registration).

Jason Susser of Siskind Susser PC was quoted extensively by Forbes in USCIS Seeks to Boost Immigration Policy for Entrepreneurs (available via subscription). The article explains that Mr. Susser obtained approval for a client in the United States under the International Entrepreneur Rule, but the process took a long time, and the client returned to Canada and now runs a business there. “She was a graduate student and built a nice company. It took so long to get approved, and Canada has some major tax credits for startup [research and development] salaries that she told me she probably will not use the parole under the International Entrepreneur Rule after waiting two years and will remain in Canada.” The article notes that Mr. Susser said his client raised more than $1 million after completing her MBA at Stanford. Nine months passed after submitting the application before receiving a Request for Evidence from USCIS. “The first red flag was that the RFE came from the Immigrant Investor Program office, which are the officers who deal with EB-5 applications, and that program is notoriously slow. Then the RFE did not ask about the client but instead entirely focused on whether the U.S. investor is a ‘qualified investor.’ Even there, the big hang-up with the investor was not whether he had invested, but instead whether his investments in other companies had led to the required growth.” He said, “They were asking for documents of the U.S. investor’s other portfolio companies, which were unrelated to the case. Even though the investors we were working with were very supportive, they couldn’t go to companies they have invested in and ask for their employees’ I-9s, taxes and other private information to give to another company for an immigration case.” The case was approved after about two years, the article notes, but by that time, the client had decided to remain in Canada.

WR Immigration published a blog post: Corporate & Counsel Interlude: Employer Impact Statement on Parole and DACA/Dreamer Executive Order.

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

Mr. Yale-Loehr was quoted by the Boston Globe in ‘Czar’ or Not, Harris Bungled Immigration. He said that “it’s difficult to figure out what can be accomplished in a short period of time. I think she started the groundwork” to address the root causes of migration from Central America to the United States.

Mr. Yale-Loehr was quoted by the Chicago Sun-Times in Immigration Advocates in Chicago “Disappointed and Angry” Over Lack of Reforms, Plan DNC Protests. “I think there will be a lively debate at the Democratic National Convention in Chicago about immigration,” he said. “The Biden administration has done a lot, but really Congress needs to step up the plate to enact immigration reform to once and for all cure our broken immigration system.”

Mr. Yale-Loehr was quoted by Syracuse.com in Ecuadoran Accused of Killing Woman in Syracuse Was Waiting in U.S. for Immigration Hearing (available by subscription). He discussed what happens when a person crosses the border, with the overarching question of whether a person will be released into the United States or sent back. He noted that those requesting asylum will be asked whether they have a credible fear of persecution in their home country. If the answer is yes and the person provides an answer that doesn’t seem “frivolous,” they are let go with a court date and can remain in the United States while their asylum application is pending. Later they need to appear in immigration court and convince an immigration judge that their fear is based on one of the asylum grounds to remain in the United States, Mr. Yale-Loehr explained. In the case discussed in the article, the man accused of the murder, if convicted, is likely to serve a long sentence and be deported after completing it. “It’s clear that now he has come to the attention of the immigration authorities. No matter what happens with the criminal trial, he’s got immigration issues he’s going to have to deal with.”

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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. Certain Afghan Parolees to Receive Notices of EAD Extension – Certain Afghan parolees will receive notices indicating that the Department of Homeland Security is extending the validity of their employment authorization documents to align with the parole period shown on their Arrival/Departure Records.

2. USCIS Will No Longer Accept Combined Fee Payments for EB-5 Applications/Petitions – Beginning September 1, 2022, U.S. Citizenship and Immigration Services will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 applications or petitions with related forms.

3. ICE Plans Pilot of Photo IDs for Migrants Awaiting Deportation Proceedings – According to reports, U.S. Immigration and Customs Enforcement is developing a pilot program to issue photo ID cards to migrants awaiting deportation proceedings. The cards would not serve as a federal ID for other purposes.

4. EOIR Announces 19 New Immigration Judges – The Executive Office for Immigration Review appointed 19 new immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

5. USCIS Extends Certain COVID-19 Flexibilities – U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through October 23, 2022.

6. DHS Extends and Redesignates Syria for TPS, Suspends Certain Requirements for Syrian F-1 Students – DHS is extending the designation of Syria for temporary protected status (TPS) through March 31, 2024. DHS is also redesignating Syria for TPS. Also, effective October 1, 2022, until April 1, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria.

7. Some Parolees Can Now File Employment Authorization Applications Online – Certain parolees can now file Form I-765, Application for Employment Authorization, online, U.S. Citizenship and Immigration Services announced.

8. 100,000 Ukrainians Admitted to United States in July – According to reports, as part of what’s being called the largest refugee exodus since World War II, more than 100,000 Ukrainians who fled the Russian invasion of their country have been admitted into the United States, mostly in temporary statuses.

9. New STEM Resources Released – Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics in the United States.

10. USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted – If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must have updated their I-9 forms by July 31, 2022.

11. Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions – Being named on a competitive government grant for STEM research can be a positive factor in demonstrating that a beneficiary is at the top of their field, USCIS said.

12. Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits – Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.

13. USCIS Updates Guidance for Afghans and Iraqis Seeking Special Immigrant Classification – Among other things, the guidance clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish to show that they provided faithful and valuable service to the U.S. government.

14. USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions – Similar to the first phase of the expansion, this phase only applies 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

15. House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances – Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual defense bill.

16. DHS Extends TPS Designation for Venezuela – The Department of Homeland Security has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Approximately 343,000 individuals are estimated to be eligible for TPS under the existing designation of Venezuela.

17. New EB-5 Immigrant Investor Forms Released – U.S. Citizenship and Immigration Services has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022. The form is split into two versions: I-526, Immigrant Petition by Standalone Investor, and I-526E, Immigrant Petition by Regional Center Investor. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000.

18. Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers – Sens. Amy Klobuchar and Susan Collins sent a letter to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.

19. DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation – Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States, extended from within 14 days of arrival.

20. SSA Resumes Normal E-Verify Timeframes – Employees whose E Verify cases are referred to the Social Security Administration (SSA) on or after that date now have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

21. Labor Dept. Releases FAQ on Process for Requesting Support for Immigration-Related Prosecutorial Discretion for Workers Involved in Labor Disputes – The Department of Labor released frequently asked questions on the process for requesting DOL support for requests to the Department of Homeland Security for immigration-related prosecutorial discretion during labor disputes.

22. USCIS Rescinds Decision on Agency Interpretation of Authorized Travel by TPS Beneficiaries – Among other things, USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries but will instead provide a new TPS travel authorization document.

23. USCIS Releases New I-9 Guidance for Employers of E and L Nonimmigrants – USCIS has published new guidance on Form I-9, Employment Authorization Verification, related to employees with E and L nonimmigrant status in its Handbook for Employers (M-274, Section 6.9, Other Temporary Workers).

24. DHS Issues Final Rule Changing NAFTA to USMCA – The Department of Homeland Security issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement with references to the Agreement Between the United States of America, the United Mexican States, and Canada.

25. ABIL Global: Schengen Area – What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization 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 – August 2022

1. Certain Afghan Parolees to Receive Notices of EAD Extension

U.S. Citizenship and Immigration Services (USCIS) announced that certain Afghan parolees will receive a Form I-797C, Notice of Action, indicating that the Department of Homeland Security (DHS) is extending the validity of their Form I-766, Employment Authorization Document (EAD), to align with the parole period shown on their Form I‑94, Arrival/Departure Record.

USCIS explained that during Operation Allies Welcome, many Afghans who arrived as part of the evacuation efforts were paroled into the United States. Many applied for and received EADs. Certain EADs with a validity period of less than two years are now being automatically extended to align with the parole period shown on the beneficiary’s I-94. Affected beneficiaries will receive an I‑797C indicating that DHS is extending that individual’s EAD to align with the parole period shown on their Form I‑94.

Details:

• “USCIS Issuing Updated I-797C for Certain Operation Allies Welcome Parolees,” USCIS, Aug. 2, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/uscis-issuing-updated-i-797c-for-certain-operation-allies-welcome-parolees-0

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2. USCIS Will No Longer Accept Combined Fee Payments for EB-5 Applications/Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that beginning September 1, 2022, it will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 immigrant investor applications or petitions with related forms. If a petitioner or applicant submits a single, combined fee payment for the forms listed below, USCIS will reject the forms for improper fee payment and return the fee.

Specifically, USCIS will no longer accept combined payments when an immigrant investor files Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, together with Form I-485, Application to Register Permanent Residence or Adjust Status; Form I-131, Application for Travel Document; or Form I-765, Application for Employment Authorization.

Details:

• EB-5 Immigrant Investor Program alert, USCIS, Aug. 2, 2022, https://www.uscis.gov/working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-program

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3. ICE Plans Pilot of Photo IDs for Migrants Awaiting Deportation Proceedings

According to reports, U.S. Immigration and Customs Enforcement (ICE) is developing a pilot program to issue photo ID cards to migrants awaiting deportation proceedings. The cards would not serve as a federal ID for other purposes.

The program is pursuant to the Biden administration’s request for $10 million for the “ICE Secure Docket Card” program in next fiscal year’s budget. An ICE spokesperson said, “Moving to a secure card will save the agency millions, free up resources, and ensure information is quickly accessible to DHS officials while reducing the agency’s [Freedom of Information Act] backlog.”

Some House Republicans are “probing” the “reckless” plan, citing worries that the ID cards would be used to “improperly access benefits such as housing, healthcare, and transportation,” among other concerns. In a letter to ICE Acting Director Tae Johnson, the Republican lawmakers have requested a briefing and all documents related to the ICE Secure Docket Card program.

Details:

• U.S. to Issue ID to Migrants Awaiting Deportation Proceedings,” Durango Herald, Aug. 4, 2022,
• “Comer, Grothman Probe ICE’s Identification Cards Pilot Program for Illegal Immigrants,” July 29, 2022, https://republicans-oversight.house.gov/release/comer-grothman-probe-ices-identification-cards-pilot-program-for-illegal-immigrants/
• Letter from House Republicans to Tae Johnson, ICE Acting Director, July 29, 2022, https://republicans-oversight.house.gov/wp-content/uploads/2022/07/ICE-ID-Cards-Letter-07292022.pdf

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4. EOIR Announces 19 New Immigration Judges

The Department of Justice’s Executive Office for Immigration Review (EOIR) appointed 19 new immigration judges (IJs) to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

EOIR said it continues to work to expand its IJ corps and “welcomes qualified candidates from all backgrounds to join the agency.”

Details:

• EOIR notice, Aug. 5, 2022 (includes biographies of each of the 19 new IJs), https://www.justice.gov/eoir/page/file/1524336/download

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5. USCIS Extends Certain COVID-19 Flexibilities

U.S. Citizenship and Immigration Services (USCIS) is extending certain COVID-19-related flexibilities through October 23, 2022. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and October 23, 2022, inclusive:

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

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

• The form was filed up to 90 calendar days from the issuance of a decision by USCIS; and
• USCIS made that decision between November 1, 2021, and October 23, 2022, inclusive.

USCIS also said it has been evaluating which flexibilities should be extended permanently. As a result of this evaluation, the reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022. Under that policy, a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, USCIS will accept electronically reproduced original signatures. Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature, USCIS said. USCIS may request the original documents at any time, and failure to do so “could negatively impact the adjudication of the immigration benefit.”

Details:

• “USCIS Extends COVID-19-Related Flexibilities,” July 25, 2022,
• “USCIS Announces Flexibility in Submitting Required Signatures During COVID-19 National Emergency,” March 20, 2020, https://www.uscis.gov/news/alerts/uscis-announces-flexibility-in-submitting-required-signatures-during-covid-19-national-emergency

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6. DHS Extends and Redesignates Syria for TPS, Suspends Certain Requirements for Syrian F-1 Students

The Department of Homeland Security (DHS) announced several measures to provide relief to Syrians in the United States, summarized below.

Temporary Protected Status Extended, Redesignated

DHS is extending the designation of Syria for temporary protected status (TPS) for 18 months, effective October 1, 2022, through March 31, 2024. DHS is also redesignating Syria for TPS.

Extension. The extension allows existing TPS beneficiaries to retain TPS through March 31, 2024, as long as they otherwise continue to meet the eligibility requirements. Existing TPS beneficiaries who wish to extend their status through March 31, 2024, must re-register during the 60-day re-registration period, which begins on the date of publication of the notice in the Federal Register. As of press time, the notice was expected to be published on August 1, 2022.

Redesignation. The redesignation of Syria allows additional Syrian nationals (and individuals having no nationality who last habitually resided in Syria) who have been continuously residing in the United States since July 28, 2022, to apply for TPS for the first time during the initial registration period. In addition to demonstrating continuous residence in the United States since July 28, 2022, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since October 1, 2022.

DHS said the extension of TPS for Syria allows approximately 6,448 current beneficiaries to retain TPS through March 31, 2024, if they meet TPS eligibility requirements. Approximately 960 additional individuals may be eligible for TPS under the redesignation, DHS noted.

Certain Requirements Suspended for Syrian F-1 Students

Effective October 1, 2022, until April 1, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria, regardless of country of birth (or individuals having no nationality who last resided in Syria), and who are experiencing severe economic hardship as a direct result of the civil war in Syria. Eligible Syrian students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status. DHS said it will deem an F–1 nonimmigrant student who receives employment authorization by means of the notice “to be engaged in a ‘full course of study’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement” as described in the notice.

Details:

• DHS TPS notice (advance copy), https://www.govinfo.gov/content/pkg/FR-2022-08-01/pdf/2022-16508.pdf
• DHS TPS announcement,
• DHS F-1 student notice (advance copy), https://www.govinfo.gov/content/pkg/FR-2022-08-01/pdf/2022-16469.pdf

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7. Some Parolees Can Now File Employment Authorization Applications Online

Certain parolees can now file Form I-765, Application for Employment Authorization, online, U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2022. Effective immediately, eligible individuals paroled into the United States for urgent humanitarian or significant public benefit purposes under INA § 212(d)(5) who are eligible to seek work authorization under category (c)(11) can file Form I-765 online, with limited exceptions.

Those seeking a waiver of the filing fee or who are eligible for a fee exemption must still file the I-765 by mail.

Details:

• USCIS alert, July 28, 2022, https://www.uscis.gov/newsroom/alerts/parolees-can-now-file-form-i-765-online

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8. 100,000 Ukrainians Admitted to United States in July

According to reports, as part of what’s being called the largest refugee exodus since World War II, more than 100,000 Ukrainians who fled the Russian invasion of their country have been admitted into the United States, mostly in temporary statuses.

Included are approximately 47,000 on temporary visas, including tourist visas; 30,000 under the “Uniting for Ukraine” program, which includes humanitarian parole; and 22,000 paroled in at the U.S.-Mexico border. Five hundred entered the United States via the refugee system.

Details:

• U.S. Admits 100,000 Ukrainians in 5 Months, Fulfilling Biden Pledge,” CBS News, July 29, 2022, https://www.cbsnews.com/news/us-admits-100000-ukrainians-in-5-months-fulfilling-biden-pledge/

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9. New STEM Resources Released

Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics (STEM) in the United States:

• S. Citizenship and Immigration Services has published resources to provide an overview of some of the temporary and permanent pathways for noncitizens to work in the United States in STEM fields. The materials also highlight some of the most important considerations for STEM professionals who want to work in the United States. New pages include “Options for Noncitizen STEM Professionals to Work in the United States,” “Nonimmigrant Pathways for STEM Employment in the United States,” and “Immigrant Pathways for STEM Employment in the United States.” https://www.uscis.gov/newsroom/alerts/new-stem-resources-available-on-uscis-website
• The American Immigration Council rolled out a new website with guides and frequently asked questions on the five international STEM talent policies announced in January 2022 by the Biden administration to enhance the ability of the United States to attract and retain international STEM talent. The website features five guides and FAQs (https://info.americanimmigrationcouncil.org/stem-faqs/faqs.html) and new research and links to other work (https://www.americanimmigrationcouncil.org/research/foreign-born-stem-workers-united-states)
• In a new policy brief, the National Foundation for American Policy has documented the role played by immigrants as founders and key personnel in many of the United States’ most innovative companies. The research shows the importance of immigrants in cutting-edge companies and the U.S. economy at a time when U.S. immigration policies have pushed talent to other countries. https://nfap.com/research/new-nfap-policy-brief-immigrant-entrepreneurs-and-u-s-billion-dollar-companies/

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10. USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted

U.S. Citizenship and Immigration Services (USCIS) reminded employers that the Department of Homeland Security (DHS) ended the temporary flexibility related to accepting expired List B documents for Form I-9 employment eligibility verification purposes. DHS explained that it adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, but document-issuing authorities have reopened and/or provided alternatives to in-person renewals. If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must have updated their I-9 forms by July 31, 2022.

Details:

• USCIS announcement, July 6, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/reminder-dhs-ended-covid-19-temporary-policy-for-expired-list-b-identity-documents

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11. Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) updated its guidance on evidence that can be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields.

USCIS clarified that “being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field. This evidence is added to the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability in the STEM fields.”

Details:

• USCIS alert, July 22, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-o-1-petitions-with-a-focus-on-stem-fields
• O-1 Beneficiaries, Chapter 4, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4

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12. Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits

According to reports, due to visa interview wait times and backlogs reaching new highs, thousands of lawsuits have been filed. Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.

U.S. Citizenship and Immigration Services (USCIS) acknowledged the increase in delays and backlogs in recent years and blamed the problems on the COVID-19 pandemic and resource constraints, including a drop in paperwork submissions with fees and a staff hiring freeze under the previous administration. USCIS released a public statement in March 2022 outlining steps the agency is taking to address the issues, including targeting processing backlogs, expanding premium processing, and improving access to employment authorization documents. A USCIS spokesperson said the agency expects to resolve related processing issues and reach a 95 percent hiring target by the end of 2022.

Details:

• “Visa Interview Wait Times Reach New Highs: 247 Days for Visitors/Business Travelers,” CATO at Liberty, July 19, 2022, https://www.cato.org/blog/visa-interview-wait-times-reach-new-highs-247-days-visitors/business-travelers
• “Government Inaction on Immigration Paperwork Leads to Record High Lawsuits,” TRAC Report, July 12, 2022, https://trac.syr.edu/tracreports/civil/689/
• “Thousands of Lawsuits Have Been Filed Over Wait Times, Backlogs at U.S. Citizenship and Immigration Services,” Reason, July 18, 2022, https://reason.com/2022/07/18/thousands-of-lawsuits-have-been-filed-over-wait-times-backlogs-at-u-s-citizenship-and-immigration-services/
• “USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders,” USCIS, March 29, 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-actions-to-reduce-backlogs-expand-premium-processing-and-provide-relief-to-work

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13. USCIS Updates Guidance for Afghans and Iraqis Seeking Special Immigrant Classification

USCIS updated guidance regarding Afghan and Iraqi nationals seeking special immigrant classification. Effective immediately, the new guidance:

• Explains that noncitizens seeking an Afghan Special Immigrant Visa (SIV) on or after July 20, 2022, must file Form DS-157, Petition for Special Immigrant Classification for Afghan SIV Applicants, with the Department of State when they are applying for Chief of Mission approval. In some circumstances, noncitizens must still file a petition with USCIS to pursue an Afghan SIV;
• Updates eligibility criteria to reflect that the employment requirement for an Afghan SIV is now one year and clarifies what type of employment with the International Security Assistance Force qualifies;
• Updates eligibility criteria for surviving spouses and children of deceased principal noncitizens to expand the scope of who may apply for Afghan and Iraqi SIVs;
• In cases where a visa is not immediately available, removes the date limitation to convert an approved petition for an Afghan or Iraqi translator or interpreter to an approved petition for an Iraqi or Afghan employed by or on behalf of the U.S. government; and
• Clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish that they provided faithful and valuable service to the U.S. government by submitting a positive recommendation or evaluation from their supervisor.

Details:

• USCIS alert, July 20, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-afghans-and-iraqis-seeking-special-immigrant-classification

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14. USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions

On July 15, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the second phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Similar to the first phase of the expansion, this phase only applies 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). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

Beginning August 1, 2022, USCIS will accept Form I-907 requests for:

• E13 multinational executive and manager petitions received on or before July 1, 2021; and
• E21 NIW petitions received on or before August 1, 2021.

USCIS will reject premium processing requests for these Form I-140 classifications if the receipt date is after the dates listed above. USCIS has 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications. The agency said it will not accept new (initial) Forms I-140 with a premium processing request now.

On May 24, 2022, USCIS published a new version of Form I-907, dated 05/31/22. As of July 1, the agency is no longer accepting the older 09/30/20 edition of Form I-907.

Details:

• USCIS announcement, July 15, 2022, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-second-phase-of-premium-processing-for-certain-previously-filed-eb-1-and-eb-2

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15. House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances

Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual National Defense Authorization Act (H.R. 7900):

• A measure to streamline the path to a green card for immigrants with doctorates in science, technology, engineering, and mathematics (STEM) fields failed as the Rules Committee deemed it “out of order” for consideration as an amendment to the defense bill. According to reports, other efforts to find a way to advance it also stalled in negotiations.
• However, a proposal to admit experts in science and technology for national security-related reasons will receive a vote on the House floor. The proposal appears to be limited to 10 experts per year to be selected by the Department of Defense.
• Also advancing to the House floor is a measure to ensure that “documented Dreamers,” who are dependents of foreign workers or applicants for permanent residence (green cards), won’t age out of legal status when they turn 21.
• Another amendment that advanced would exempt Afghan students from having to show nonimmigrant intent when they apply for student visas to the United States.

Details:

• “Immigration Measure for STEM Workers Adrift After Defense Flop,” Bloomberg Law, July 13, 2022,

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16. DHS Extends TPS Designation for Venezuela

The Department of Homeland Security has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension. Venezuelans who arrived in the United States after March 8, 2021, are not eligible. Approximately 343,000 individuals are estimated to be eligible for TPS under the existing designation of Venezuela.

A forthcoming Federal Register notice will provide instructions for re-registering for TPS and applying to renew an employment authorization document (EAD). Venezuelans who are currently eligible for TPS under the existing designation but have not yet applied with U.S. Citizenship and Immigration Services (USCIS) should file their applications before the September 9, 2022, application deadline, including those Venezuelans who are covered under the January 2021 grant of Deferred Enforced Departure (DED), USCIS said. Venezuela’s DED is set to expire July 20, 2022.

Details:

• USCIS news release, July 11, 2022, https://www.uscis.gov/newsroom/news-releases/dhs-announces-extension-of-temporary-protected-status-for-venezuela

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17. New EB-5 Immigrant Investor Forms Released

U.S. Citizenship and Immigration Services (USCIS) has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022, which made significant changes to the filing and eligibility requirements for investors under the EB-5 program. The form is now split into two versions:

• Form I-526, Immigrant Petition by Standalone Investor, is to be used by “standalone immigrant investors who are not seeking to pool their investment with additional investors seeking EB-5 classification.” It closely resembles the prior edition of Form I-526.
• Form I-526E, Immigrant Petition by Regional Center Investor, is to be used by “immigrant investors who are seeking to pool their investment with one or more additional investors seeking EB-5 classification under the new regional center program.”

Form I-526E “reflect[s] elements of the new regional center program, including the ability to incorporate evidence by reference from a regional center’s Form I-956F,” USCIS said.

As of July 12, 2022, Forms I-526 and I-526E must be submitted in compliance with new program requirements, USCIS said. The filing fee is $3,675 for each form. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000, required by the EB-5 Reform and Integrity Act of 2022. This additional amount does not apply to an amendment request. A separate biometric services fee of $85 is also required for each petitioner submitting an initial I-526E petition. The biometric services fee is not required for petitions filing the I-526 to amend a previously filed petition.

Details:

• USCIS announcement, July 12, 2022, https://www.uscis.gov/newsroom/alerts/uscis-releases-new-forms-for-immigrant-investor-program-0
• Form I-526, https://www.uscis.gov/i-526
• Form I-526E, https://www.uscis.gov/i-526e

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18. Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers

U.S. Senators Amy Klobuchar and Susan Collins sent a letter on July 7, 2022, to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor (DOL) is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.

They noted that the H-1B, H-2B, and employment-based visa programs all require DOL to conduct prevailing wage determinations to ensure that hiring foreign workers will not negatively affect the wages and working conditions of U.S. employees in similar positions. As of May, the senators pointed out, some employers who filed applications for prevailing wage determinations in November were still waiting for their applications to be processed. “These delays make it hard for businesses to have the confidence that they will have the workers they need,” the senators said. “This is especially true for seasonal businesses that have a small window of time where they can make all the revenue they need for the entire year. Delays of even a few days can have devastating impacts on their ability to stay open.”

The senators asked for answers to their questions by July 29, 2022.

Details:

• Letter from senators to Secretary Walsh, July 7, 2022,

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19. DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation

The Department of Homeland Security (DHS) has extended the timeframe beneficiaries paroled into the United States under the “Uniting for Ukraine” program have to attest to their compliance with medical screening for tuberculosis and additional vaccinations, if required. Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States. Previously, such beneficiaries had to complete the medical screening and attestation within 14 days of arrival.

The attestation is a condition of parole and must be completed in the beneficiary’s USCIS online account. Beneficiaries are responsible for arranging their vaccinations and medical screening for tuberculosis, including an Interferon-Gamma Release Assay (IGRA) blood test, DHS said.

Details:

• DHS news release, July 13, 2022, https://www.uscis.gov/newsroom/alerts/time-frame-extended-for-uniting-for-ukraine-parolees-to-comply-with-medical-screening-and

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20. SSA Resumes Normal E-Verify Timeframes

E-Verify announced that as of July 15, 2022, employees whose E‑Verify cases are referred to the Social Security Administration (SSA) have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

At the onset of the COVID-19 pandemic in March 2020, E‑Verify extended the timeframe for an employee to take action to resolve a Tentative Nonconfirmation (mismatch). For E‑Verify cases referred on or after July 15, 2022, E‑Verify is no longer providing extended timeframes for employees to visit SSA to resolve these mismatches. However, E‑Verify cases referred between March 2, 2020, to July 14, 2022, with an SSA mismatch still had an extended timeframe to be resolved, E-Verify said.

Details:

• E-Verify announcement, July 5, 2022,

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21. Labor Dept. Releases FAQ on Process for Requesting Support for Immigration-Related Prosecutorial Discretion for Workers Involved in Labor Disputes

On July 6, 2022, the Department of Labor (DOL) released frequently asked questions (FAQ) on the process for requesting DOL support for requests to the Department of Homeland Security (DHS) for immigration-related prosecutorial discretion during labor disputes.

The FAQ states that DOL considers such requests on a case-by-case basis. DOL remains open to requests from workers to express DOL support for their requests to DHS seeking immigration-related prosecutorial discretion. The FAQ notes:

[W]orkers must feel free to participate in the Department’s investigations and proceedings without fear of retaliation or immigration-related consequences. DOL’s mission and effective enforcement depends on the cooperation of workers. However, vulnerable workers who lack work authorization or sufficiently ‘portable’ immigration status are often reluctant to report violations, engage with government enforcement agencies, or otherwise exercise their rights. For example, undocumented workers who experience labor law violations may fear that cooperating with an investigation will result in the disclosure of their immigration status or that of family members, or that it will result in immigration-based retaliation from their employers and adverse immigration consequences for themselves or their family. As a result, both workers and the Department face barriers to equitable and effective enforcement of workplace rights and protections, and the many employers that adhere to labor and employment laws face unfair competition.

DOL has long supported prosecutorial discretion on a case-by-case basis, to further enforcement of laws within DOL’s jurisdiction.

Details:

• FAQ, Dept. of Labor, July 6, 2022,

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22. USCIS Rescinds Decision on Agency Interpretation of Authorized Travel by TPS Beneficiaries

On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it has rescinded its designation of the Administrative Appeals Office (AAO) decision in Matter of Z-R-Z-C-2 as an Adopted Decision and updated its interpretation of the effects of authorized travel by temporary protected status (TPS) beneficiaries. The memorandum notes, among other things:

• USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries, but will instead provide a new TPS travel authorization document. This document will serve as evidence that the bearer may be inspected and admitted into TPS pursuant to the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA) if all other requirements are met.
• TPS beneficiaries whom DHS has inspected and admitted into TPS under MTINA, subsequent to that inspection and admission, will have been “inspected and admitted” and are “present in the United States pursuant to a lawful admission,” including for purposes of adjustment of status under INA § 245 for a green card. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.
• In adjudicating an application for adjustment of status, or any other benefit request where relevant, USCIS will consider whether to apply this guidance to travel undertaken by the applicant before the issuance of this memorandum. This consideration will include a case-by-case review of any reliance on the prior policy, applicable law, and any other relevant factors. Additionally, to be eligible for consideration under this guidance, past travel must meet each of the following requirements:
• The noncitizen obtained prior authorization to travel abroad temporarily on the basis of being a TPS beneficiary;
• The noncitizen’s TPS was not withdrawn or the designation for their foreign state (or part of a foreign state) was not terminated or did not expire during their travel;
• The noncitizen returned to the United States in accordance with the authorization to travel; and
• Upon return, the noncitizen was inspected by DHS or the former Immigration and Naturalization Service (INS) at a designated port of entry and paroled or otherwise permitted to pass into the territorial boundaries of the United States in accordance with the TPS-based travel authorization.

Details:

• USCIS Policy Memorandum, PM-602-0188, July 1, 2022, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf

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23. USCIS Releases New I-9 Guidance for Employers of E and L Nonimmigrants

U.S. Citizenship and Immigration Services has published new guidance on Form I-9, Employment Authorization Verification, related to employees with E and L nonimmigrant status in its Handbook for Employers (M-274, Section 6.9, Other Temporary Workers).

Details:

• “M-274 Update: New Section Added for Other Temporary Workers,” July 5, 2022, https://www.uscis.gov/i-9-central/form-i-9-related-news/m-274-update-new-section-added-for-other-temporary-workers-0
• Handbook for Employers, Section 6.9, Other Temporary Workers, https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/60-evidence-of-status-for-certain-categories/69-other-temporary-workers

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24. DHS Issues Final Rule Changing NAFTA to USMCA

The Department of Homeland Security (DHS) issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement (NAFTA) with references to the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA).

The USMCA superseded NAFTA and its related provisions on July 1, 2020. Chapter 16 of the USMCA “generally maintains the same treatment as provided under NAFTA with respect to the temporary entry of Canadian and Mexican citizen business persons,” DHS said. The final rule “makes other minor, non-substantive conforming amendments and stylistic changes and corrects typographical errors.”

Details:

• U.S. Customs and Border Protection, Final Rule, 87 Fed. Reg. 41027 (July 11, 2022), https://www.govinfo.gov/content/pkg/FR-2022-07-11/pdf/2022-14728.pdf

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25. ABIL Global: Schengen Area

What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

The new automated Entry/Exit System (EES)

The Entry/Exit System (EES) is an automated IT system for registering travelers from third countries, both short-stay visa holders and visa-exempt travelers, each time they cross an EU external border. The EES will replace the current system of manual stamping of passports, which does not allow for the systematic detection of overstayers (travelers who have exceeded the maximum duration of their authorized stay).

It is expected to be operational in 2022 (starting date to be confirmed). The system will register the person’s name, type of travel document, biometric data (fingerprints and captured facial images), and date and place of entry and exit.

The EES is intended to contribute to preventing irregular migration and to identifying overstayers more efficiently (and automatically) as well as cases of document and identity fraud.

European Travel Information and Authorization System

Starting in May 2023, non-European Union (EU) nationals who do not need a visa to travel to the Schengen Area will need to apply for travel authorization through the European Travel Information and Authorization System (ETIAS) before their trip. The system aims to carry out pre-travel screening for security and migration risks of visa-exempt visitors and will be a mandatory pre-condition for entry to the Schengen States.

Applicants will file an online application form, and the system will issue travel authorization in most cases within minutes or, where further checks on the traveler are needed, within 30 days. Applicants will need to submit information to answer questions about the Member State of their first intended stay, the purpose of their trip, background relating to previous criminal records, presence in conflict zones, and orders to leave the territory of a Member State or third countries. The applicant must report any criminal offense listed over the previous 10 years and, in the case of terrorist offenses, over the previous 20 years, including when and in which country.

Details:

• How to Count Your Schengen 90 Days, Marco Mazzeschi, https://medium.com/studiomazzeschi/how-to-count-your-schengen-90-days-ee96f5d25326
• “Can You Enter the Schengen Area If You Have Past Criminal Convictions?,” Marco Mazzeschi, https://mm-63015.medium.com/can-you-enter-the-schengen-area-if-you-have-past-criminal-convictions-e2280bcc2ccb

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New Publications and Items of Interest

FAQs on ICE prosecutorial discretion. U.S. Immigration and Customs Enforcement (ICE) released updated frequently asked questions (FAQs) on prosecutorial discretion and the Department of Homeland Security’s civil immigration enforcement priorities in light of a court’s vacating Secretary Alejandro Mayorkas’ related September 30, 2021, memorandum. The FAQs note, among other things, that although ICE’s Office of the Principal Legal Advisor (OPLA) attorneys are no longer applying the Mayorkas memo, they may still “exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.” https://www.ice.gov/about-ice/opla/prosecutorial-discretion

Webinars on E-Verify and Form I-9. E-Verify is presenting free webinars on E-Verify and the Form I-9 employment eligibility verification process. The webinars are eligible for professional development credits through the Society of Human Resource Management and the Human Resource Certification Institute, except for “E-Verify in 30” and “myE-Verify.” Customized sessions are also available; email [email protected] to arrange the topic, date, and time. https://www.e-verify.gov/about-e-verify/e-verify-webinars

Beware of ICE imposters. U.S. Customs and Immigration Enforcement (ICE) released a safety alert warning people to beware of ICE imposters after reports of people representing themselves as ICE personnel in person, by telephone, or online for fraudulent gain and attempting to elicit some form of payment or compensation for immigration benefits or other immigration services. https://www.ice.gov/sites/default/files/documents/Document/2019/bewareICEimposters.pdf

HHS releases lists of designated primary medical care, mental health, and dental health professional shortage areas. The Department of Health and Human Services released the complete lists of all geographic areas, population groups, and facilities designated as primary medical care, dental health, and mental health professional shortage areas (HPSAs) in a designated status as of April 29, 2022. The lists are available from HRSA at https://data.hrsa.gov/tools/shortage-area.

FAQ on VWP and ESTA. U.S. Customs and Border Protection has released frequently asked questions about the Visa Waiver Program and the Electronic System for Travel Authorization. https://www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visa-waiver-program-vwp-and-electronic-system-travel

New citizenship ambassador initiative. U.S. Citizenship and Immigration Services (USCIS) announced the launch of the first-ever citizenship ambassador initiative. Through this new initiative, USCIS will partner with community leaders who will promote citizenship through their own immigrant experiences. The initiative “is designed to make a personal and local connection to the more than 9.1 million lawful permanent residents who may be eligible to apply for naturalization and who otherwise may not have access to or knowledge of the naturalization process,” USCIS said. https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-citizenship-ambassador-initiative

List of randomized H-2B applications published. The Office of Foreign Labor Certification (OFLC) has published the Assignment Group(s) for 1,360 H-2B applications covering 29,856 worker positions with a work start date of October 1, 2022 (fiscal year 2023). Since the number of the H-2B applications received during the three-day filing window (July 3–5, 2022) collectively requested fewer worker positions for certification than the number of visas available under the semi-annual visa allotment for the first half of fiscal year 2022, all H-2B applications filed within that time period that requested workers starting October 1, 2022, were randomly given a unique number in accordance with OFLC’s randomization process and placed into the same group for assignment to analysts for review and processing. https://www.dol.gov/agencies/eta/foreign-labor (scroll to July 12, 2022)

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

Agency Twitter accounts:

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

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

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

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has released several new episodes in the Statutes of Liberty podcast series. In “Episode 29: EB-5 Regional Centers,” Klasko EB-5 attorneys discuss the latest updates to the EB-5 regional center program and what that means for investors, developers, and brokers. They also address what role they played in recent litigation and give advice on next steps for EB-5 clients. Attorneys Ron Klasko, Dan Lundy, and Allison Li address questions on what a federal district court judge’s preliminary injunction means and more, including:

• Is the regional center program fully operational now?
• Can regional centers file project approval applications now?
• When can investors file I-526s?
• Are there any risks for investors who file I-526 petitions?
• What if an existing regional center wants to change or extend its geographic territory?

In “Episode 28: Introduction to the EB-1 Visa,” , Klasko’s EB-1 attorney team discusses the fundamentals of EB-1, gives an overview on how to prepare for a successful EB-1 petition, and covers ways to increase your chances of approval. Anu Nair, Allie Dempsey, and Nigel James answer these need-to-know questions before starting your EB-1 application:

• Do you need a sponsor?
• What are the benefits?
• What criteria are needed?
• What are some alternative options?

The podcast episodes are available at

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) released several Foster LLP announcements:

• Chairman Charles Foster discussed U.S. immigration policy and border protection on a recent episode of KPRC Newsmakers with Khambrel Marshall. Click here to watch the interview:
• Avalyn Langemeier will present “Next Level Immigration Knowledge—Latest Updates and Impacts” at HR Houston’s Gulf Coast Symposium on Wednesday, July 27, 2022. She will discuss the latest updates to immigration policy and the impact they will have on the immigration process. https://www.hrhouston.org/mpage/GCS22_Home
• Oxana Bowman and Brenda Hicks will present “Riding the Pandemic Roller Coaster with H-1B Workers—A Review of H-1B Requirements When Employment Terms Change” at HR Houston’s Gulf Coast Symposium on Thursday, July 28. She will provide HR professionals with a basic understanding of the special requirements related to changes in the employment of H-1B workers. https://www.hrhouston.org/mpage/GCS22_Home

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) has been named Editor-in-Chief of the American Immigration Lawyers Association Law Journal. Mr. Mehta is Managing Partner of Cyrus D. Mehta & Partners PLLC in New York City and is a graduate of Cambridge University and Columbia Law School. He has served in varied national roles with AILA, currently continuing his long-time service with AILA’s Ethics Committee as Vice Chair. Mr. Mehta is a board member of the New York Immigration Coalition and is a board member of Volunteers of Legal Services. He is also special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York. https://www.aila.org/advo-media/press-releases/2022/aila-law-journal-welcomes-new-editor

Mr. Mehta has authored several new blog posts: “The Long, Windy, Bumpy, and Outrageous Road to Labor Certification,” http://blog.cyrusmehta.com/2022/08/the-long-windy-bumpy-and-outrageous-road-to-labor-certification-feat-two-sunday-ads.html; and “Considerations When Terminating a Foreign Worker,” http://blog.cyrusmehta.com/2022/07/considerations-when-terminating-a-foreign-worker.html

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

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) has authored a new blog post, “A Snitch in Time Saves How Many?—Incentivizing Noncitizens to Report Employment Law Violations.” https://www.nationofimmigrators.com/biden-administration-immigration-policies/a-snitch-in-time-saves-how-many-incentivizing-noncitizens-to-report-employment-law-violations/

Wolfsdorf Rosenthal LLP has published a new blog post: “Italy: Faster Immigration Procedure for Limited Categories of Work.” https://wolfsdorf.com/italy-faster-immigration-procedure-for-limited-categories-of-work/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Associated Press in “Immigrants Are Not Getting Social Security Numbers at the U.S. Border.” In response to anti-immigrant activists’ claims that Border Patrol agents are handing out social security cards to undocumented immigrants at the border, Mr. Yale-Loehr explained that Border Patrol agents can’t issue social security cards: “Even if they were to do it, it would be illegal for them to do it and they could be prosecuted for doing it. I believe it is a false statement.” https://apnews.com/article/fact-check-social-security-number-border-552180846074

Mr. Yale-Loehr authored an op-ed published by The Hill, “Ending Title 42 Won’t Cause Immigration Mayhem—It Will Restore Order.” https://thehill.com/opinion/immigration/3575601-ending-title-42-wont-cause-immigration-mayhem-it-will-restore-order/

Mr. Yale-Loehr was quoted by Univision in “Forced Separation of Families at the Border, the Mark of Terror That Still Persists.” He said, “The forced separation of families during the Trump administration violated the due process rights of families. Many of them are now suing the U.S. government for damages. The forced separation also set a bad precedent, both for future presidents and for leaders of other countries, who might try the same.” He noted that criminal proceedings against asylum seekers and others trying to enter the United States “also set a bad precedent. People fleeing persecution have the right under U.S. and international law to apply for asylum. U.S. law allows criminal prosecutions against others who try to enter the country illegally, but such prosecutions do not deter desperate people. Instead, we need smart border management and more temporary work visas to allow people to legally enter the United States.” https://www.univision.com/noticias/inmigracion/separaciones-forzadas-familias-frontera-mexico-huella-de-terror-que-persiste (Spanish with English translation available)

Mr. Yale-Loehr was quoted by CBS News in “Republican States’ Lawsuits Derail Biden’s Major Immigration Policy Changes.” Mr. Yale-Loehr said federal policymaking on immigration is now primarily dictated by federal courts, not Congress or the executive branch. “I think every major policy initiative by Biden that they plan to roll out in the next year is going to be certainly challenged in the courts, and the conservative states have done a good job of judge-shopping to find judges that are likely to agree with these conservative states,” he said, noting that he expects lawsuits will continue to shape federal immigration policy unless Congress inhibits the power of judges to block nationwide initiatives or passes a broad reform of the U.S. immigration system, a prospect that has remained elusive for decades amid intense partisanship. However, he said, “that’s not the way our government is supposed to run,” and the role of the federal court system should be limited to determining whether the actions of the president and Congress are lawful and constitutional. “From the American public’s perspective, when people disagree with a policy, theoretically they can vote that person out of office, whether it’s a member of Congress or the president. But when the judges are making a policy decision that the public disagrees with, they cannot vote that judge out of office,” he noted. https://www.cbsnews.com/news/immigration-biden-republican-states-lawsuits/?intcid=CNM-00-10abd1h

Mr. Yale-Loehr was quoted by the Voice of America about the Department of State’s 2022 Trafficking in Persons Report. The video interview is in Russian at https://www.youtube.com/watch?v=AHIWV9BEAJE. Click on CC and select English to see Mr. Yale-Loehr’s comments subtitled in English. Mr. Yale-Loehr said that human trafficking is a huge and growing problem worldwide, affecting about 25 million people per year. Report: https://www.state.gov/reports/2022-trafficking-in-persons-report/

Mr. Yale-Loehr co-authored the second edition of Immigration and Nationality Law: Problems and Strategies, published by Carolina Academic Press. The book introduces the reader to the legal concepts and experience of practicing immigration law by presenting the material through a series of hypotheticals. It is designed for both law students and attorneys as it covers not only statutory provisions and key immigration law cases but also provides an understanding of the many government agencies involved in the immigration process and how to navigate the wide variety of adjudications that are central to the U.S. immigration system. The book goes beyond doctrine to implications for strategies and policy. For more information, including a video with the authors, or to order, see

Mr. Yale-Loehr was quoted by Scripps Media in “Companies Add Immigration Reimbursement to List of Benefits.” Commenting on new immigrant assistance benefits some companies are offering, Mr. Yale-Loehr said, “This is a new trend because of the tight labor market and employers need to figure out how to both attract and retain workers. And with foreign workers being a growing part of the employment base, [offering] benefits to foreign-born workers is increasingly one way that they can entice people to come work for them or to stay with them.” As examples, he noted that Amazon “has just started a reimbursement program to cover fees for a work permit renewal, which can cost between $410 and $495 every two years. [Tyson Foods], which is the biggest U.S. food processor, is expanding its immigration benefits by offering a program to its workers to give them free legal services ranging from work authorization renewals to green card and citizenship applications.” https://www.ksby.com/news/national/companies-add-immigration-reimbursement-to-list-of-benefits

Mr. Yale-Loehr was quoted by Univision in ” ‘Remain in Mexico’ Is Still in Force and It Is Not Known When and How It Will Be Dismantled.” The article notes that although the Supreme Court determined at the end of June 2022 that the government can “cancel” the Trump administration’s “remain in Mexico” policy, a series of legal requirements must be met to dismantle it and create a replacement protocol. “The Supreme Court ruling is significant for a number of reasons,” Mr. Yale-Loehr said. First, the Court “preserved its right to decide the merits of an immigration dispute, even if immigration law prohibits lower courts from issuing an injunction. Second, the Court held that the immigration statute gives immigration officials discretion over whom to admit into the United States while they await an immigration hearing. And third, the majority noted that by interpreting federal law to require the return of asylum seekers to Mexico, the lower court in the case limited the ability of the executive branch to conduct foreign relations with Mexico.” In short, he said, the Court “upheld the Biden administration’s efforts to end a Trump-era immigration policy,” although the process will take time. https://www.univision.com/noticias/inmigracion/fallo-corte-suprema-interrogantes-programa-mpp-quedate-en-mexico-desmantelamiento (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by several media outlets relating to the Supreme Court’s decision on the “Remain in Mexico” policy:

• “Explaining the Supreme Court Immigration Ruling on ‘Remain in Mexico,’ ” PolitiFact. He explained that historically, when people believe an immigration policy violates immigration law, they can sue the government, which initiates a court case. However, these cases often take a long time, so the person or group suing can ask the courts to either stop or restart the policy if it is causing immediate harm, which is called an injunction, he noted. https://www.politifact.com/article/2022/jul/07/explaining-supreme-court-immigration-ruling-remain/
• “Biden Administration Can Drop ‘Remain in Mexico’ Policy, But What Will it Use Instead?,” Marketplace. He said, “The court today recognized that this is really part of a bigger political problem of not enough funding for our broken immigration system.” https://www.marketplace.org/2022/07/05/biden-administration-can-drop-remain-in-mexico-policy-but-what-will-it-use-instead/

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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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