In this issue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – December 2023

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

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

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

Details:

• “Potential Game-Changer Cases for Immigration Law at SCOTUS,” thinkImmigration (Nov. 29, 2023).

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2. DOS Proposes Updates to Au Pair Exchange Visitor Program

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

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

Details:

• DOS notice of proposed rulemaking, 88 Fed. Reg. 74071 (Oct. 30, 2023).
• DOS extension of comment period, 88 Fed. Reg. 83511 (Nov. 30, 2023).

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3. ICE Launches Online Portal for Noncitizens in Removal Proceedings

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

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

Details:

• ICE statement (Nov. 30, 2023).

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4. CBP Will Temporarily Close Arizona Border Crossing

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

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

Details:

• CBP statement (Dec. 1, 2023).
• CBP Border Wait Times.

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

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

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

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

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

Details:

• USCIS alert (Nov. 21, 2023).

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

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

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

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

Details:

• Settlement Agreement with Covenant and Transport.
• DOJ Press Release (Nov. 20, 2023).

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7. Global Entry Program Expands to PortMiami Seaport

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

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

CBP Global Entry continues to expand to foreign partner countries.

Details:

• CBP media release (Nov. 24, 2023).
• CBP Global Entry enrollment page.
• CBP Trusted Traveler Programs page.
• TSA PreCheck

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

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

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

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

Details:

• DOL/DHS temporary rule, 88 Fed. Reg. 80394 (Nov. 17, 2023).

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9. DOJ Reaches Several Immigration-Related Discrimination Settlement Agreements

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

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

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

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

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

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

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

Details:

• DOJ release re NYC Health Care System settlement (Nov. 16, 2023).
• Settlement Agreement with NYC Health Care System (Nov. 16, 2023).
• DOJ release re Kforce Inc. (Nov. 15, 2023).
• Settlement Agreement with Kforce Inc. (Nov. 15, 2023).

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10. Federal Government Shutdown Averted for Now

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

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

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

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

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

Details:

• Procedures Relating to a Lapse in Appropriations, DHS (Sept. 22, 2023).
• OMB Agency Contingency Plans.
• What Happens to Immigration if U.S. Government Shuts Down?, Voice of America (Sept. 28, 2023).
• White House press release (Sept. 30, 2023).
• Biden statement (Sept. 30, 2023).
• R. 5860 (Sept. 30, 2023).

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

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

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

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

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

Details:

• DOJ press release (Nov. 9, 2023).
• Settlement Agreement between Apple and DOJ (Nov. 2023).
• Attachment A – Back Pay Funds Claim Process.

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

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

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

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

Details:

• DHS alert (Nov. 8, 2023).
• DHS notice, 88 Fed. Reg. 77343 (Nov. 9, 2023).

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

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

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

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

Details:

• DHS alert (Nov. 9, 2023).

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

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

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

Details:

• DOS Visa Bulletin for December 2023.

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15. Potomac Service Center Will No Longer Accept Paper Responses

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

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

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

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

Details:

• USCIS alert (Nov. 6, 2023).

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16. ABIL Global: Spain

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

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

National Residence Permit for Highly Qualified Professionals

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

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

Residence Permit for Highly Qualified Professionals—EU Blue Card

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

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

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

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

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

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

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New Publications and Items of Interest

Immigration agency X (formerly Twitter) accounts:

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

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

Alliance of Business Immigration Lawyers:

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

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ABIL Member / Firm News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Government Agency Links

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

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

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

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In this issue:

1. Shutdown Averted for Now; DHS Releases Fact Sheet on Potential Impact – Shortly before the deadline on September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. Also, the Department of Homeland Security released a fact sheet on the impact of a potential shutdown on its workforce.

2. DHS Releases Advance Copy of TPS Extension/Redesignation for Venezuela, Details on EADs – The Department of Homeland Security (DHS) has released an advance copy of its notice extending the designation of Venezuela for Temporary Protected Status (TPS) until September 10, 2025. DHS is also redesignating Venezuela for TPS. DHS said re-registrants should timely re-register during the registration period and not wait until their Employment Authorization Documents expire.

3. EAD Validity Period Increased for Certain Categories – U.S. Citizenship and Immigration Services is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal. USCIS is also increasing the maximum validity period to five years for initial and renewal EADs for certain noncitizens who must apply for employment authorization.

4. Biometric Services Fee Exempted for All Form I-539 Applicants – U.S. Citizenship and Immigration Services (USCIS) is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status. Beginning October 1, 2023, applicants do not need to pay the $85 biometric services fee if their applications are postmarked October 1 or later.

5. USCIS Continues Fee Exemptions and Expedited Processing for Afghan Nationals – U.S. Citizenship and Immigration Services is extending and expanding filing fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2024.

6. FY 2025 Diversity Visa Lottery Begins Soon, Embassy Releases Tips – The online registration period for the DV-2025 diversity visa program begins on Wednesday, October 4, 2023, at 12 noon ET, and concludes on Tuesday, November 7, 2023, at 12 noon ET. DV 2025 instructions and tips are now available.

7. Israel Added to Visa Waiver Program – Eligible Israeli citizens, nationals, and passport holders from Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of 90 days or less for business or pleasure without first obtaining a B-1/B-2 nonimmigrant visa stamp in their passports.

8. Comments Requested on Proposed Revisions to Immigrant Petition for Alien Workers – Comments will be accepted until October 27, 2023, on proposed revisions to Form I-140, Immigrant Petition for Alien Workers.

9. Comments Requested on Proposed Revisions to Trusted Traveler Programs and U.S. APEC Business Travel Card – Comments will be accepted until October 27, 2023, on proposed revisions to Trusted Traveler Programs and the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card.

10. Potential Government Shutdown Effect on Immigration Agencies – There has been much speculation that the federal government is headed for a shutdown starting October 1, 2023. A shutdown would cause many adverse immigration impacts.

11. USCIS Issues Update on DACA Decision – U.S. Citizenship and Immigration Services issued an update about the partial stay of the recent DACA decision by a Texas federal judge.

12. Proposed DHS Rule Seeks to Modernize H-2 Program – The Department of Homeland Security announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs.

13. CIS Ombudsman Provides Tip Sheet on How F-1 Students Can Avoid Form I-765 Delays – The U.S. Citizenship and Immigration Services Ombudsman’s Office released a tip sheet for F-1 international students on how to avoid delays with adjudications on Form I-765, Applications for Employment Authorization.

14. Electronic Signatures Now Acceptable for STEM OPT Students – Immigration and Customs Enforcement recently updated Form I-983 to remove the requirement for wet signatures.

15. Department of Homeland Security Proposes Rule to Modernize H-1B Regulations – The Office of Management and Budget received a proposed rule from the Department of Homeland Security to amend regulations governing H-1B specialty occupation workers and F-1 international students.

16. Labor Contractor Penalized After Repeated Violations of H-2A Farmworkers’ Rights – A federal court has ordered a farm labor contractor to pay over $1 million in back wages and penalties for H-2A violations.

17. White House Announces Plans to Increase Border Enforcement and Accelerate Work Authorization – The Department of Homeland Security announced a series of actions to increase enforcement along the U.S.-Mexico border and to accelerate work authorization processing.

18. Justice Department Secures Agreement with UPS to Resolve Immigration-Relation Employment Discrimination Claims – The Justice Department announced a settlement with United Parcel Service (UPS) following the department’s determination that UPS violated the Immigration and Nationality Act by discriminating against a lawful permanent resident.

19. DHS Announces Extension and Redesignation of TPS for Venezuela – Secretary Mayorkas of DHS announced the extension and redesignation of Venezuela for Temporary Protected Status for 18 months.

20. DHS Announces Extension and Redesignation of TPS for Afghanistan – Secretary Mayorkas of DHS announced the extension and redesignation of Afghanistan for Temporary Protected Status for 18 months, from November 21, 2023, to May 20, 2025.

21. October 2023 Visa Bulletin is Published – The October 2023 Visa Bulletin shows no significant movement, with instructions to use Chart B.

22. USCIS Updates Policy Guidance for Extraordinary Ability and Outstanding Professor or Researcher EB-1 Immigrant Visa Classifications – U.S. Citizenship and Immigration Services announced on September 12, 2023, that it is updating the USCIS Policy Manual to clarify the types of evidence the agency will evaluate to determine eligibility.

23. Proposed DOL Rule Aimed at Bolstering Temporary Farm Workers’ Protection – U.S. Department of Labor proposed a new rule intended to strengthen protections for H-2A farm workers.

24. House Democrats Ask Biden to Help Immigrants and Asylum-Seekers through Executive Action – Over 100 House Democrats issued a letter to President Biden and DHS Secretary Alejandro Mayorkas asking for executive action to be taken to support immigrants and asylum-seekers in getting work authorization.

25. HHS Creates Data-Matching Program With DHS – The Health and Human Services Centers for Medicare and Medicaid Services published a notice of a new data-matching program that will allow government agencies to share personally identifiable information of HHS applicants and enrollees.

26. State Department Jettisons 2019 Public Charge Restrictions – The Department of State issued a final rule to discard public charge restrictions made in a 2019 rule.

27. USCIS Provides I-9 and E-Verify Guidance for People Impacted by the 2023 Hawaii Wildfire – U.S. Citizenship and Immigration Services issued guidance regarding I-9 and E-Verify compliance requirements for individuals and companies affected by the recent wildfire in Hawaii.

28. USCIS Ends Biometrics Fee Suspension for I-539 Applicants – On September 30, 2023, U.S. Citizenship and Immigration Services ended its temporary suspension of biometrics submission for people extending or changing their nonimmigrant status.

29. COVID-Era Visa Application Fee Receipts to Expire on September 30 – The Department of State announced the end of COVID-era exceptions and has resumed a 12-month validity period for fee payments.

30. Department of Labor Updates O*NET Database – The Department of Labor released a new version of the O*NET database.

31. Bipartisan Congressional Letter Requests Relief for Skilled Visa Holders – Members of Congress recently sent a letter to the Secretaries of State and Homeland Security requesting executive action to provide relief to certain highly skilled workers.

32. State Dept. Conducting Proof of Concept Testing for Digital Visa Authorization – The State Department’s Bureau of Consular Affairs announced it is developing and testing a digital visa authorization to replace paper visas.

33. ABIL Global: United Kingdom – The government of the United Kingdom is implementing a full-scale digitalization project and seeks to enhance the efficiency of immigration procedures by harnessing advanced technology.

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 – October 2023

1. Shutdown Averted for Now; DHS Releases Fact Sheet on Potential Impact

Shortly before the deadline on September 30, 2023, Congress passed and President Biden signed H.R. 5860, a short-term funding bill to keep the federal government funded for 45 days. A shutdown is still possible after November 17.

On September 28, 2023, the Department of Homeland Security released a fact sheet on the impact of a potential shutdown on its workforce. The fact sheet noted that if there is a shutdown, nearly three in four DHS employees—more than 185,000 people—would be required to continue working through a shutdown without receiving a paycheck during that time. Those working without pay would include law enforcement officers, analysts, investigators, and disaster response officials. DHS said a shutdown would result in, among other things:

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

Details:

• White House press release (Sept. 30, 2023).
• Biden statement (Sept. 30, 2023).
• R. 5860 (Sept. 30, 2023).
• DHS Fact Sheet (Sept. 28, 2023).

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2. DHS Releases Advance Copy of TPS Extension/Redesignation for Venezuela, Details on EADs

The Department of Homeland Security (DHS) has released an advance copy of its notice extending the designation of Venezuela for Temporary Protected Status (TPS) for 18 months, beginning on March 11, 2024, and ending on September 10, 2025. Existing TPS beneficiaries who wish to extend their status through September 10, 2025, must re-register during the 60-day re-registration period, which runs from January 10, 2024, through March 10, 2024. DHS also released information about Employment Authorization Documents (EADs) for Venezuela TPS beneficiaries.

DHS is also redesignating Venezuela for TPS. DHS explained that the redesignation of Venezuela allows additional Venezuelan nationals (and individuals having no nationality who last habitually resided in Venezuela) who have been continuously residing in the United States since July 31, 2023, to apply for TPS for the first time during the initial registration period, which begins on October 3, 2023, and will remain in effect through April 2, 2025. In addition to demonstrating continuous residence in the United States since July 31, 2023, 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 3, 2023.

Employment Authorization Documents. DHS said re-registrants should timely re-register during the registration period and not wait until their Employment Authorization Documents (EADs) expire.

U.S. Citizenship and Immigration Services (USCIS) announced on September 29, 2023, that it has automatically extended the validity of EADs previously issued under the TPS Venezuela designation. USCIS noted:

EADs covered by this extension are valid through March 10, 2025, as evidence of permission to work, and will list:

1. An expiration date of March 10, 2024, or September 9, 2022, on the EAD, and
2. A category code of A-12 or C-19.

Details:

• Extension and Redesignation of Venezuela for Temporary Protected Status (advance copy, to be published in the Federal Register on October 3, 2023). The official version of the Federal Register notice will also be posted on USCIS’s TPS Venezuela page (en español).
• DHS news release (Sept. 29, 2023).

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3. EAD Validity Period Increased for Certain Categories

U.S. Citizenship and Immigration Services (USCIS) announced on September 27, 2023, that it is increasing the maximum validity period to five years for initial and renewal Employment Authorization Documents (EADs) for certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, and granted asylum, as well as recipients of withholding of removal.

USCIS is also increasing the maximum validity period to five years for initial and renewal EADs for certain noncitizens who must apply for employment authorization, including applicants for asylum or withholding of removal, adjustment of status under INA § 245, and suspension of deportation or cancellation of removal.

The agency noted that its updated guidance also explains the categories of noncitizens who are automatically authorized to work (also known as being employment-authorized incident to status or circumstance) and provides information on who can present a Form I-94, Arrival/Departure Record, to an employer as an acceptable document showing employment authorization under List C of Form I-9, Employment Eligibility Verification. The guidance also clarifies that certain Afghan and Ukrainian parolees are employment-authorized incident to parole.

USCIS noted that whether the noncitizen maintains employment authorization remains dependent on their underlying status, circumstances, and EAD filing category. For example, USCIS said, “if an individual received an EAD under the (c)(9) category based on a pending adjustment of status application for the maximum validity period of 5 years, and the adjustment application is then denied, their ancillary employment authorization may be terminated before the expiration date listed on their EAD.”

Details:

• USCIS alert (Sept. 27, 2023).

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4. Biometric Services Fee Exempted for All Form I-539 Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on September 25, 2023, that it is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status. Beginning October 1, 2023, applicants do not need to pay the $85 biometric services fee.

Certain filers who filed before October 1 will still be scheduled for, and should attend, an ASC appointment. In most cases, after October 1, applicants will not be scheduled to attend a biometric services appointment. However, if USCIS determines that biometrics are required, the applicant will receive a notice with information about appearing for their biometric services appointment, the agency noted.

USCIS warned:

If you mistakenly submit the biometric services fee and the payment is submitted separately from the Form I-539 fee, we will return the biometric services fee and accept the Form I-539. If you mistakenly submit the biometric services fee and the payment is combined with a paper-based Form I-539 filing fee, this is considered an incorrect filing and we will reject the Form I-539. If you mistakenly authorize a credit card payment that combines the biometric services fee with the Form I-539 application fee, we will accept the application, and only charge the application fee.

USCIS said the biometric services fee exemption will apply to all applicants filing on or after October 1, 2023, including those applicants filing Form I-539 requesting an extension of stay in, or change of status to, H-4, L-2, or E nonimmigrant for whom USCIS had previously suspended the biometrics requirement through September 30, 2023.

Details:

• USCIS alert (Sept. 27, 2023).

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5. USCIS Continues Fee Exemptions and Expedited Processing for Afghan Nationals

U.S. Citizenship and Immigration Services (USCIS) announced on September 29, 2023, that it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2024.

USCIS said these actions “will help Afghan nationals resettle, and in many cases, reunite with family in the United States by enabling USCIS to more quickly process their requests for employment authorization and/or Employment Authorization Documents (EADs), long-term status, status for immediate relatives, and associated services.” Details are included in the USCIS alert.

Details:

• USCIS alert (Sept. 29, 2023).
• Information for Afghan Nationals (updated Sept. 22, 2023).

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6. FY 2025 Diversity Visa Lottery Begins Soon, Embassy Releases Tips

The online registration period for the DV-2025 diversity visa program begins on Wednesday, October 4, 2023, at 12 noon ET, and concludes on Tuesday, November 7, 2023, at 12 noon ET. DV 2025 instructions are now available.

Also, on September 29, 2023, the U.S. Embassy in Barbados released “10 Tips for the 2025 Diversity Visa Lottery.” (As of press time, some of the links mentioned in the tip sheet did not yet include the DV-2025 updates, but the tips may be useful otherwise.)

Details:

• DV Program application steps.
• DV-2025 Program instructions.

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7. Israel Added to Visa Waiver Program

Effective September 29, 2023, Israel has been designated eligible for participation in the Visa Waiver Program (VWP). This means that eligible Israeli citizens, nationals, and passport holders from Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of 90 days or less for business or pleasure without first obtaining a B-1/B-2 nonimmigrant visa stamp in their passports.

The Electronic System for Travel Authorization (ESTA) is expected to be updated by November 30, 2023, to facilitate this change.

Details:

• DHS final rule, 88 Fed. Reg. 67073 (Sept. 29, 2023).

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8. Comments Requested on Proposed Revisions to Immigrant Petition for Alien Workers

Comments will be accepted until October 27, 2023, on proposed revisions to Form I-140, Immigrant Petition for Alien Workers. Those wishing to review the revisions and submit comments may access the information collection instrument with instructions, or additional information, by visiting the Federal eRulemaking Portal site at https://www.regulations.gov and entering USCIS–2007–0018 in the search box.

Details:

• USCIS notice, 88 Fed. Reg. 66498 (Sept. 27, 2023).

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9. Comments Requested on Proposed Revisions to Trusted Traveler Programs and U.S. APEC Business Travel Card

Comments will be accepted until October 27, 2023, on proposed revisions to Trusted Traveler Programs and the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card.

U.S. Customs and Border Protection (CBP) said it intends to update the Trusted Traveler Programs to align with the Department of State’s passport options. Specifically, CBP will modify the Trusted Traveler Program application by adding a third “X” gender marker for applicants identifying as non-binary, intersex, and/ or gender non-conforming (in addition to the existing “male” and “female” gender markers). The “X” marker will be categorized as “Unspecified or Another Gender Identity” in the document sections of the electronic Trusted Traveler Programs application.

In addition, CBP’s new Global Entry (GE) portals and the new Global Entry (GE) Mobile application are replacing legacy kiosks, CBP said. The portal or app will take the traveler’s facial image and match it with the existing image from the application process. The questions previously asked by the legacy kiosk will now be a verbal attestation when exiting the area, CBP noted.

Details:

• CBP notice, 88 Fed. Reg. 66465 (Sept. 27, 2023).

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10. Potential Government Shutdown Effect on Immigration Agencies

There has been much speculation in the news about a possible federal government shutdown. When this has happened in the past, the contingency plans for each federal agency have varied. The White House keeps an updated page on its website with each agency’s plan for a federal government shutdown.

Here is an overview of the immigration agencies:

• S. Citizenship & Immigration Services (USCIS). USCIS is funded by user fees and does not depend on federal funds for its operations. Processing of all applications and petitions is expected to continue. The only exception is if a petition or application requires the certification of another affected federal agency, such as an H-1B petition that requires certification by the Department of Labor (DOL).

• Department of Labor (DOL). The Office of Foreign Labor Certifications (OFLC) oversees most immigration processes and is part of the DOL, which has typically been closed during government shutdowns. DOL will likely not accept or process any Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (PERM).

Additionally, as mentioned above, the operational status of DOL impacts USCIS petitions that require a certified LCA (H-1B, H-1B1, and E-3 visa petitions).  Historically, USCIS would temporarily allow an exemption to the LCA requirement for status maintenance filings. Similarly, the DOL’s status may impact the timing requirements of PERM applications. In the past, DOL has extended any deadlines that fell during a government shutdown.

• Department of State (DOS). Consular operations and visa issuance may or may not be operational during a shutdown. DOS maintains a small reserve of funds for continued operations. However, the Department of State has reduced or halted visa issuance during prior shutdowns. Employees with international travel plans that would require them to obtain a new visa stamp while abroad should monitor the situation closely and may need to cancel their travel plans or risk being unable to return to the United States.

• Customs and Border Protection (CBP). Borders will remain open and CBP will be operational, so individuals entering with a valid visa should not encounter any issues with ports of entry. However, individuals who plan to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TNs and L-1s for Canadian nationals) will need to check the operational status of the location at which they intend to apply for the latest information.

• E-Verify. E-Verify is unavailable during a government shutdown. As a result, E-Verify employers will not be able to verify employment eligibility or take any other action in E-Verify. The three-day rule for E-Verify cases will be suspended, and the time during which employees may resolve Tentative Nonconfirmations will be extended. Employers are not permitted to take any adverse action against an employee whose query is in an extended interim case status due to the government shutdown. The government will release additional information on how to address situations that cannot adhere to traditional E-Verify deadlines if or when a shutdown occurs. This disruption does not affect I-9 obligations.

It is important to check each agency’s contingency plan as the situation unfolds because as mentioned, shutdown operations have varied with each presidential administration.

Details:

• Agency Contingency Plans, The White House, whitehouse.gov

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11. USCIS Issues Update on DACA Decision

U.S. Citizenship and Immigration Services (USCIS) issued an update about the partial stay of the recent Deferred Action for Childhood Arrivals (DACA) decision by a Texas federal judge. On September 13, 2023, District Court Judge Andrew Hanen declared the Biden administration’s revised version of the DACA program illegal. However, Judge Hanen also kept in place a partial stay for DACA recipients who received their status before July 16, 2021.

USCIS states that current grants of DACA and associated employment authorization documents (EADs) will remain valid until they expire unless otherwise terminated. USCIS will continue to accept and process renewal requests. As for initial DACA requests, USCIS will continue to accept these, but the agency will not process the applications.

Individuals who currently have valid DACA and related EADs do not have to submit a request for DACA or employment authorization until it is time for renewal.

Details:

• USCIS News Alert (Sept. 18, 2023).

• DACA information page, USCIS.gov (updated Sept. 18, 2023).

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12. Proposed DHS Rule Seeks to Modernize H-2 Program

On September 18, 2023, the U.S. Department of Homeland Security (DHS) announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. The proposed rule is intended to improve the H-2 programs by providing more flexibility and protections for the workers, as well as improving efficiency.

The H-2 visa program allows U.S. employers to hire foreign nationals to fill temporary jobs when there are not enough U.S. workers willing, able, and qualified to do the temporary (often seasonal) work. The employer must file a petition accompanied by a certification from the Department of Labor (DOL) that states why there are no qualified U.S. workers and demonstrate how a foreign worker’s employment will not adversely affect the wages and working conditions of U.S. workers in similar roles.

There are a limited number of visas available to participate in the H-2 program and, under the proposed rules, employers who violate the requirements may become ineligible. The proposed rule also clarifies restrictions on employer-imposed fees and seeks to protect workers from incurring debts and abuse. DHS also proposes extended grace periods to seek other employment, depart the United States, or change visa status.  There would also be a major benefit to employers, as DHS proposes to make H-2 portability permanent, allowing employers to hire workers already lawfully in the United States.

The 60-day public comment period starts following the publication of the proposed rule in the Federal Register.

Details:

• News Release, U.S. Department of Homeland Security (Sept. 18, 2023).
• Proposed Rule, Federal Register (Sept. 20, 2023).

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13. CIS Ombudsman Provides Tip Sheet on How F-1 Students Can Avoid Form I-765 Delays

On September 18, 2023, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman’s Office released a tip sheet for F-1 international students on how to avoid delays with adjudications on Form I-765, Applications for Employment Authorization.

The tip sheet includes suggestions for students to check USCIS’ website before submitting their Form I-765 for relevant updates, ensuring that their designated school official (DSO) has provided a properly completed and signed Form I-20, Certification of Eligibility for Nonimmigrant Student Status for submission with the Form I-765, and applying online if possible, as USCIS receives online applications faster. Additional recommendations include submitting Form I-765 within 30 days (if applying for Post-Completion Optional Practical Training) or 60 days (if applying for a STEM Optional Practical Training Extension) after their DSO has entered the appropriate recommendation into their Student and Exchange Visitor Information System (SEVIS) record, and making sure that students update their mailing address with both USCIS and the U.S. Postal Service.

Details:

• DHS, CIS Ombudsman Tip Sheet (Revised Sept. 2023).

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14. Electronic Signatures Now Acceptable for STEM OPT Students

Immigration Customs Enforcement (ICE) and the Student and Exchange Visitor Program (SEVP) recently updated Form I-983 (Training Plan for STEM OPT students) to remove the requirement for wet signatures. According to the ICE bulletin released about this form change, SEVP will accept electronic signatures in the following formats:

• Electronic signatures produced with software programs
• Digitally reproduced signatures, such as a scanned image of a physical signature

Additionally, students can now send their completed Form I-983 to their designated school official via email or a secure platform, such as a school portal.

Details:

• ICE Bulletin, AILA Infonet (Sept. 20, 2023).

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15. Department of Homeland Security Proposes Rule to Modernize H-1B Regulations

On September 19, 2023, the Office of Management and Budget (OMB) received a proposed rule from the Department of Homeland Security (DHS) to amend regulations governing H-1B specialty occupation workers and F-1 students who are beneficiaries of timely filed H-1B cap-subject petitions.

DHS proposes to revise regulations relating to the employer-employee relationship and flexibility for start-up entrepreneurs, implement new requirements and guidelines for site visits in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data, and provide flexibility on the employment start date listed on the H-1B petition in limited circumstances. The proposed rule also includes details on addressing cap-gap issues for F-1 students changing to H-1B status, reducing misuse and fraud in the H-1B registration system, and clarifying the requirement that an amended or new petition be filed where there are material changes, including streamlining notification requirements relating to certain worksite changes, among other provisions.

After OMB reviews the proposed rule, it will be published in the Federal Register for public comment.

Details:

• Reginfo, Proposed Rule (Sept. 19, 2023).
• Reginfo, Pending Review (Sept. 19 2023).

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16. Labor Contractor Penalized After Repeated Violations of H-2A Farmworkers’ Rights

A federal court has ordered a Santa Maria, California farm labor contractor to pay over $1 million in back wages and penalties for violating H-2A agricultural worker program regulations.

The Department of Labor’s (DOL) Wage and Hour Division conducted three investigations into Rancho Nuevo Harvesting Inc.’s employment practices. The results of the investigations showed that the company underpaid workers, violated H-2A program requirements, and made false statements in the certification process.

According to the DOL news release, the company failed to:

• Provide meals on Sundays (and, when feeding workers, the company provided insufficient and spoiled food)
• Provide safe and healthy housing
• Provide safe transportation to and from worksites
• Pay outbound transportation and subsistence upon completion of workers’ contracts
• State terms and conditions accurately in job orders and work contracts
• Meet the three-fourths pay guarantee required for the H-2A program

In addition, the company was also found to have purposefully made false statements in the H-2A certification process regarding the company’s plans to provide the required meals to the farm workers. Rancho Nuevo Harvesting also illegally sought worker resignations when there was insufficient work and to avoid paying wages specified in the contracts.

These recent investigations are in relation to workers in three counties in California: Venture, Fresno, and Riverside. The company also had similar findings in four other investigations in two counties in Arizona and two additional counties in California in 2020 and earlier in 2023.

The court fined Rancho Nuevo Harvesting $475,211 in penalties and ordered it to pay $558,298 in back wages, as well as permanently forbid the company from future H-2A program violations.

Details:

• News Release, Department of Labor (Sept. 19, 2023).
• U.S. District Court Statement, Central District of California, Department of Labor website
  (Sept. 6, 2023).
• Three-fourths pay guarantee, Department of Labor website Fact Sheet.

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17. White House Announces Plans to Increase Border Enforcement and Accelerate Work Authorization

On September 20, 2023, the Department of Homeland Security (DHS) announced a series of actions to increase enforcement along the U.S.-Mexico border and accelerate work authorization processing.

Regarding the southern border, DHS outlined several enforcement changes, including deploying additional military personnel to support DHS, increasing holding capacity, and working with international partners to facilitate removals and returns.

The DHS also outlined its plan to work with U.S. Citizenship and Immigration Services (USCIS) to improve the processing of employment authorization documents (EADs) for certain applicants. For parolees who scheduled an appointment through the CBP One app and are eligible for work authorization immediately, the goal is to improve processing times from 90 days to 30 days. At the same time, USCIS will work to reduce the median EAD processing time for Cuban, Haitian, Nicaraguan, and Venezuelan parolees to 30 days.

To help ease the processing burden on related agencies, USCIS will increase the validity period of initial and renewal EADs to 5 years for refugees, asylees, recipients of withholding of removal, and those applying for asylum, adjustments of status, or cancellation of removal.

Customs and Border Protection (CBP) will also increase awareness to work-eligible individuals that they can apply for work authorization and provide instructions. CBP noted that only a small percentage of paroled individuals who have applied through the CBP One app have taken the extra steps to apply for work authorization. DHS will deploy increased messaging to raise awareness of eligibility and the process, as well as deploy extra personnel to New York to educate newly arrived immigrants on the U.S. immigration system and how to apply for work authorization.

Details:

• DHS Fact Sheet, Department of Homeland Security (Sept. 20, 2023).

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18. Justice Department Secures Agreement with UPS to Resolve Immigration-Relation Employment Discrimination Claims

On September 21, 2023, the Justice Department announced a settlement with United Parcel Service Inc. (UPS) following the department’s determination that UPS violated the Immigration and Nationality Act (INA) by discriminating against a lawful permanent resident.

Under the INA, employers cannot discriminate against employees based on their citizenship, immigration status, or national origin at any stage of the hiring process. Similarly, employers cannot retaliate against an individual for asserting their rights under the law. The department’s investigation revealed that UPS discriminated and retaliated against a lawful permanent resident in its airport badging process at their Logan Airport facility in Boston, Massachusetts by rejecting documentation provided by the worker to receive an airport badge and refusing to submit a badge application to the relevant airport authority. Without the airport badge, it was impossible for the worker to complete certain job duties. The department also uncovered that UPS retaliated against the worker by firing him after he complained to UPS about the discrimination and that this UPS facility had a policy or practice of rejecting valid documentation that some non-U.S. citizens show to obtain an airport badge, such as Machine Readable Immigrant Visas (MRIVs) with an I-551 stamp.

Under the settlement, UPS will pay nearly $100,000 in back pay, front pay, and associated benefits to the affected worker. UPS must also pay a civil penalty to the United States, train UPS staff on the INA’s anti-discrimination provision, revise its policies and procedures, and be subject to monitoring by the department.

Details:

• OPA, Press Release (Sept. 21, 2023).
• UPS Settlement Agreement (Sept. 21, 2023).

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19. DHS Announces Extension and Redesignation of TPS for Venezuela

On September 20, 2023, the Department of Homeland Security (DHS) announced the extension and redesignation of Venezuela for Temporary Protected Status (TPS) for 18 months. The extension and redesignation are based upon a review of country conditions and findings that Venezuela continues to experience increased instability and safety concerns.

Applicants must establish they are Venezuelan nationals who have been continuously residing in the United States since July 31, 2023, and meet other eligibility criteria.  USCIS will continue to process pending applications under the previous TPS designation for Venezuela, including associated EAD applications, and applicants do not need to resubmit their applications.  USCIS will accept new applications during an initial registration period to be published in a forthcoming Federal Register notice.

There are currently approximately 242,000 TPS beneficiaries under Venezuela’s existing TPS designation. An estimated 472,000 additional nationals of Venezuela may be eligible under the redesignation.

Details:

• DHS, Press Release (Sept. 20, 2023).
• DHS, Press Releases.

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20. DHS Announces Extension and Redesignation of TPS for Afghanistan

On September 21, 2023, the Department of Homeland Security (DHS) announced the extension and redesignation of Afghanistan for Temporary Protected Status (TPS) for 18 months, from November 21, 2023, to May 20, 2025. The extension and redesignation are based upon a review of country conditions and ongoing armed conflict in Afghanistan.

Current beneficiaries under TPS for Afghanistan must re-register during the 60-day registration period from September 25, 2023, to November 24, 2023. DHS will automatically extend the validity of EADs previously issued under Afghanistan’s TPS designation through November 20, 2024.

USCIS will continue to process pending applications under the previous TPS designation for Afghanistan, including associated EAD applications, and applicants do not need to resubmit their applications.  USCIS will accept new applications during the initial registration period from September 25, 2023, to May 20, 2025.  Afghan nationals who were granted parole under Operation Allies Welcome, or re-parole, may apply for and receive TPS, if eligible.

Also on September 21, 2023, DHS announced Special Student Relief for Afghanistan, effective November 21, 2023, to May 20, 2025.  Notice will be published in the Federal Register on September 25, 2023.

• DHS, Press Release (Sept. 21, 2023).

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21. October 2023 Visa Bulletin is Published

On September 15, 2023, the Department of State released the October 2023 Visa Bulletin, indicating which green card applications are eligible to move forward based on their initial filing date. For employment-based filings, USCIS has directed the public to use “Chart B,” the Dates for Filing chart in the October Visa Bulletin.

The Visa Bulletin affects those born in countries where there are more green card applications filed than green cards available for the fiscal year. Those born in India and China are subject to backlogs and have to wait for their priority date to become current so that they may file an Adjustment of Status, the final stage in the green card application.

The EB-1 category is “current” for all countries except for India and China. Indian nationals with priority dates of July 1, 2019, and earlier are eligible to move forward. Chinese nationals with priority dates of August 1, 2022, can move forward with their applications.

EB-2 Indian nationals with priority dates of May 15, 2012, and EB-2 Chinese nationals with priority dates of January 1, 2020, can move forward.

In the EB-3 category, Indian nationals with priority dates of August 1, 2012, and Chinese nationals with priority dates of September 1, 2020, are eligible to file their Adjustment of Status applications for their green cards.

Details:

• Department of State October 2023 Visa Bulletin.
• USCIS Visa Bulletin Guidance.

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22. USCIS Updates Policy Guidance for Extraordinary Ability and Outstanding Professor or Researcher EB-1 Immigrant Visa Classifications

U.S. Citizenship and Immigration Services (USCIS) announced on September 12, 2023, that it is updating the USCIS Policy Manual to clarify the types of evidence the agency will evaluate to determine eligibility for extraordinary ability and outstanding professor or researcher EB-1 immigrant visa classifications.

An extraordinary ability EB-1 immigrant visa classification does not require a job offer, and it is filed by a person who has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.

An outstanding professor or researcher EB-1 immigrant visa classification is filed by a U.S. employer on behalf of a professor or researcher who is internationally recognized as outstanding in a specific academic area to work in a tenured or tenure-track position or a comparable position to conduct research.

USCIS explained that the new clarifying guidance enumerates and describes the evidence, or qualified comparable evidence, that meets the relevant evidentiary criteria for these petitions. Additionally, USCIS clarified the totality of the circumstances approach used by officers to evaluate the relevant evidentiary criteria, as well as outlined a list of positive factors that officers should consider when adjudicating these matters. While the examples of relevant evidence and factors have a focus on science, technology, engineering, or mathematics (STEM) fields, USCIS states that the list of examples is non-exhaustive and that while the listed factors are more relevant to STEM fields, the guidance applies to all extraordinary ability persons and outstanding professors or researchers.

Details:

• USCIS alert (Sept. 12, 2023).
• Policy Manual, Volume 6, Part F, Chapter 2 – Extraordinary Ability (current as of Sept. 12, 2023).
• Policy Manual, Volume 6, Part F, Chapter 3 – Outstanding Professor or Researcher (current as of Sept. 12, 2023).

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23. Proposed DOL Rule Aimed at Bolstering Temporary Farm Workers’ Protection

On September 12, 2023, the U.S. Department of Labor (DOL) proposed a new rule intended to strengthen protections for H-2A farm workers.

The rule intends to add protections for H-2A farm workers including self-advocacy, protection against retaliation, enhanced transparency of foreign labor recruitment, and increased enforcement.

In the DOL release, acting Secretary Julie Su says, “Farm workers are vital to our farmers, our food supply and our communities. This proposed rule would strengthen protections for H-2A farm workers who are particularly vulnerable to labor abuses, empower them to advocate for fair treatment and ensure that their employment does not depress labor standards and undercut domestic farm workers. The administration is committed to protecting all workers, and this proposal would significantly advance that effort.”

The release outlines five specific parts of the proposed rule and how they will be implemented:

• More protections for work self-advocacy. The rule would expand and clarify existing anti-retaliation protections and expand workers’ rights to invite guests like labor organizations to employer-provided housing. The release also lists requirements for employers to prevent coercion and transparency for employees’ rights to organize freely.
• Clarifying when a termination is “for cause”. The rule will clarify what is required of an employer when terminating an employee “for cause” and establish six conditions when this termination can happen.
• More transparency in foreign labor recruitment. The rule is intended to protect agricultural workers from predatory recruitment practices and would require employers to provide a copy of the agreement with agents and recruiters in the H-2A recruitment process, regardless of whether the agent or recruiter is U.S.-based or abroad.
• Predictable wages. New wage rates will apply immediately upon their publication in the Federal Register, instead of weeks later. In addition, employers who do not provide adequate notice to workers if there is a delay in their start date will be required to pay workers the rate for each day the work is delayed up to 14 days.
• Access to safe transportation. Long and crowded travel to and from worksites is commonplace and has raised safety concerns. The proposed rule would require seat belts in transport vehicles and prohibit employer-provided vehicles unless each occupant is wearing a seat belt.
• Enhancing enforcement. Debarment would be faster for any business that violates H-2A program rules with the proposed rule and would make it easier for the system to discontinue recruitment for employers who continue to fail to meet program requirements. It would also forbid employers from confiscating workers’ passports, visas, or other government IDs.

There will be a 60-day notice-and-comment period after the proposed rule is published in the Federal Register before the department considers all comments and publishes the final rule.

Details:

• News Release, U.S. Department of Labor (Sept. 12, 2023).

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24. House Democrats Ask Biden to Help Immigrants and Asylum-Seekers through Executive Action

On September 10, 2023, over 100 House Democrats, led by Representative Jerry Nadler (D-NY) and Representative Pramila Jayapal (D-WA) issued a letter to President Biden and Department of Homeland Security (DHS) Secretary Alejandro Mayorkas asking for executive action to be taken to support immigrants and asylum-seekers in getting work authorization.

The letter requests the Biden Administration use “all the tools available to provide stability to undocumented individuals and recently arrived asylum seekers, seeking to work lawfully, support their families, and contribute to the economy.”

The letter suggests three paths to ease the burdens on asylum seekers in obtaining work authorization.

• Relieving delays for EADs. Asylum seekers face significant regulatory and processing delays in obtaining employment authorization documents (EADs). Immigration courts present long delays to even apply. After that, there is a regulatory waiting period of 150 days for asylum seekers to apply for work authorization, and another 30 days to receive their EADs. During this time, refugees are forced to rely on underfunded community groups to provide housing, food, and health services, while many asylum seekers have the skills and desire to work and provide for their families independently.
• Humanitarian parole. The letter suggests the Biden Administration to consider using humanitarian parole on a case-by-case basis, which has been used by both parties since the 1950s for urgent humanitarian reasons.
• Provisional waiver. Finally, the Democrats urge the administration to reduce the backlog in the provisional waiver program, which has been a successful program to reunite families designed to streamline the family-based immigration visa process. Backlogs have grown significantly, with the current wait time reaching 43 months (over 3 ½ years) as of this past April.
• Streamline cancellation of removal. Many eligible noncitizens residing in the U.S. only are aware of this program once they are in removal proceedings. The House Democrats urge the Biden Administration to use rulemaking to implement a process to proactively request a case review to access this relief.

The letter addresses that Congress is unlikely to pass any legislative immigration relief plans, but Biden can still make meaningful reforms through other authorities like executive action and rulemaking.

Details:

• House Letter to Biden, Representatives Nadler and Pramila (Sept. 10, 2023).
• 103 House Democrats join calls for Biden to open up the immigration playbook, The Hill (Sept. 11, 2023).

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25. HHS Creates Data-Matching Program With DHS

The Health and Human Services (HHS) Centers for Medicare and Medicaid Services published notice of a data-matching program with the Department of Homeland Security to share data related to applicants’ citizenship and immigration status for HHS eligibility determinations. The program will allow these government agencies to share personally identifiable information (PII) of HHS applicants and enrollees to determine the applicant’s eligibility for enrollment in health insurance plans established under the Affordable Care Act. The relevant PII that will be shared between these agencies includes name, date of birth, Alien Registration Numbers, I-94 Arrival/Departure Records, SEVIS ID, foreign passport numbers, and other immigration-related information such as the individual’s country of birth and details of USCIS employment authorizations. The program is committed to complying with all requirements of the Privacy Act of 1974, including notification to affected individuals and fail-safes to verify findings before taking adverse action such as suspending or terminating the enrollee’s HHS benefits.

The comment period for this notice ends on October 6, 2023. This program is expected to begin around October 20, 2023, for an initial term of 18 months, with the possibility for a 1-year renewal in 2025. If an error is discovered in immigration records, a Privacy Act amendment request may be submitted in writing to USCIS’s FOIA/PA Office in Lee’s Summit, MO.

Details:

• Centers for Medicare & Medicaid Services Notice (Sept. 6, 2023).

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26. State Department Jettisons 2019 Public Charge Restrictions

On September 5, 2023, the Department of State issued a final rule to discard the regulatory amendments included in a 2019 rule regarding ineligibility for immigration benefits based on an applicant’s likelihood to become a public charge. Before 2019, only public cash assistance for income maintenance or long-term institutionalization at government expense was considered in the public charge inadmissibility assessment. The 2019 rule expanded the public charge test by adding several other factors that would be considered in determining whether an individual is likely to become a public charge. The 2019 rule raised concerns about fear and confusion preventing immigrants, including children, from accessing government services and benefits available to them.

This final rule will take effect on October 5, 2023. By abandoning the 2019 amendments, the DOS will continue to apply the regulatory language and Foreign Affairs Manual guidance in use before 2019.

Details:

• DOS Final Rule (Sept. 5, 2023).
• USCIS Public Charge Resources (July 10, 2023).

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27. USCIS Provides I-9 and E-Verify Guidance for People Impacted by the 2023 Hawaii Wildfire

U.S. Citizenship and Immigration Services (USCIS) issued guidance on September 5, 2023, regarding I-9 and E-Verify compliance requirements in light of the 2023 Hawaii wildfires, regarding the potential loss or destruction of affected employees’ documentation. All employment eligibility verification requirements remain in effect for areas impacted by the wildfires and there have been no exceptions made for employers seeking to onboard or re-verify affected employees. Individuals whose documentation was lost or damaged should immediately apply for replacement documentation. Employers may accept receipt for the replacement request to complete I-9 verification for the first 90 days of employment. The employee should follow up with the replacement document or other acceptable documentation within 90 days from the first date of employment to complete the verification. Employers whose I-9 records have been lost or destroyed because of the wildfires must recreate new I-9 forms for current employees, with an annotation stating: “Original Form I-9 destroyed in 2023 Hawaii wildfire; replacement created MM/DD/YYYY.”

Employees whose immigration documents or processes are impacted by the wildfires should seek relief through USCIS’ Immigration Relief in Emergencies or Unforeseen Circumstances program.

Details:

• USCIS I-9 Related News (Sep. 5, 2023).

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28. USCIS Ends Biometrics Fee Suspension for I-539 Applicants

The temporary suspension of biometrics submission for I-539 applicants changing to or extending their H-4, L-2, E-1, E-2, E-2C, E-3, or E-3S, and E-3Y nonimmigrant status expired on September 30, 2023. Notably, in U.S. Citizenship and Immigration Services’ (USCIS) FY 2022 Progress Report issued in December 2022, the Service announced its intent to establish a permanent biometrics exemption for all I-539 applicants “in the months ahead.” As fiscal year 2023 came to a close, USCIS had not yet followed through with these plans. In the absence of further guidance from USCIS, applicants must include the $85 biometrics fee per applicant for all I-539 and I-539A applications postmarked or submitted electronically after September 30, 2023.

Details:

• USCIS Alert (April 19, 2023).

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29. COVID-Era Visa Application Fee Receipts to Expire on September 30

Machine-Readable Visa (MRV) fees paid to the Department of State (DOS) in connection with a visa application submitted to a U.S. consulate or embassy abroad are normally valid for up to 12 months from the date of payment. Due to consulate closures and other processing delays caused by the COVID-19 pandemic, the DOS extended the validity of MRV fees paid on or after March 20, 2020. On September 1, 2023, the DOS announced the end of these COVID-era extensions and has resumed the 12-month validity period for all MRV fee payments. Any visa applicant who submitted their MRV fee payment between March 20, 2020, and October 1, 2022, must have scheduled an appointment or submitted an interview waiver application before September 30, 2023. Interviews scheduled beyond this date will remain valid so long as the appointment was scheduled before the deadline. Importantly, applicants who have been scheduled for an interview to take place after September 30 should not attempt to reschedule their appointments after that date, as this will result in both the loss of the original appointment date and forfeiture of the MRV fee. If the MRV fee expires before the applicant has scheduled an appointment or submitted an interview waiver application, the applicant must submit a new application package in addition to a new MRV fee payment.

Details:

• DOS U.S. Visas News (Sep. 1, 2023).

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30. Department of Labor Updates O*NET Database

The Department of Labor, Employment and Training Administration released the O*NET 28.0 Database and updated its site on September 5, 2023, making updates to 90 occupation codes. Among these updates were revisions to occupation descriptions (including tasks, skills, work activities, etc.); minimum requirements for training, work experience, and education; job zones; and alternate job titles. Significantly, the occupation code 15-1211, Computer Systems Analysts was downgraded from Job Zone Four: Considerable Preparation Needed, to Job Zone Three: Medium Preparation Needed. As a result of this change, practitioners should expect a higher risk for PERM business necessity audits and H-1B specialty occupation requests for additional evidence for positions classified under the Computer Systems Analysts occupation.

The next O*NET update is expected in November 2023.

Details:

• O*NET Resource (Sept. 5, 2023).

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31. Bipartisan Congressional Letter Requests Relief for Skilled Visa Holders

Congressmen Raja Krishnamoorthi (D-IL) and Larry Bucshon, M.D. (R-IN) recently sent a letter to Secretary of State Antony Blinken and Department of Homeland Security Secretary Alejandro Mayorkas requesting executive action to provide relief to highly skilled workers, allowing the filing of employment-based immigrant visa applications by marking all dates as “current” across all chargeability areas for employment-based green card cases in the October 2023 Visa Bulletin.

The letter, co-signed by a bipartisan group of 56 other members of Congress, outlined the precedent and authority for such action and highlighted the compelling government and economic interests in retaining these highly skilled professionals within the U.S. labor force, particularly during this time of increased opportunities for STEM workers to relocate to Canada. The action would bring relief and security to thousands of foreign nationals and their families by securing their ability to maintain work authorization, get promoted, and launch businesses. Under the current backlogs, these foreign nationals and their families are stuck in limbo waiting for the next step in obtaining their green cards beholden to their current job and employer. According to the letter, if the United States does not address these shortcomings, it is at risk of losing critical talent to countries that have already taken steps to prioritize immigration opportunities for highly skilled workers.

In the press release on Congressmen Krishnamoorthi’s website, Aman Kapoor ,president of Immigration Voice was quoted as saying, “The entire basis for this problem is a discriminatory immigration system that requires Indian nationals to have to wait 200 years for a green card while people from 150 other countries have no wait at all. While this larger problem cannot be fixed without legislation, our organization of over 100,000 members is absolutely thrilled with the bipartisan effort of Congressmen Krishnamoorthi, Bucshon and 56 other members of Congress to call on the Biden Administration to adopt this change.”

Details:

• Letter to the Biden Administration, Congressman Raja Krishnamoorthi website (July 28, 2023).
• Press Release, Congressman Raja Krishnamoorthi website (July 28, 2023).

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32. State Dept. Conducting Proof of Concept Testing for Digital Visa Authorization

On September 8, 2023, the U.S. Department of State’s (DOS) Bureau of Consular Affairs announced it is developing and testing a digital visa authorization (DVA) capability instead of the traditional process of printed visas placed in applicants’ passports. The U.S. Embassy in Dublin is conducting proof of concept testing with a small number of K-1 visas. If successful, DOS plans to expand the DVA to other visa classifications and other posts abroad. There was no timeline indicated in this announcement.

U.S. Customs and Border Protection’s (CBP) Document Validation program will notify airlines digitally when a traveler has valid travel credentials, including a DVA. DOS will provide more information and updates as they become available.

Details:

• Travel.state.gov Visa News, U.S. Department of State (September 8, 2023)

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33. ABIL Global: United Kingdom

The government of the United Kingdom is implementing a full-scale digitalization project and seeks to enhance the efficiency of immigration procedures by harnessing advanced technology.

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

Transition to Digital Immigration Status

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

Electronic Travel Authorisation Scheme

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

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

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

Sponsorship System Reforms

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

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

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

Online Verification of Right to Work and Rent

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

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New Publications and Items of Interest

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual to clarify voter registration access at its administrative naturalization ceremonies. The updated guidance: (1) affirms that USCIS provides access to voter registration services at each administrative naturalization ceremony, including information regarding points of contact for voting and voter registration; (2) provides that USCIS offices request that election officials from state or local government election offices attend ceremonies to distribute, collect, and review voter registration applications and to officially register new citizens to vote; (3) affirms that USCIS offices coordinate with nonpartisan, nongovernmental organizations for voter registration services when state and local government election officials are not available; and (4) provides that, to the extent feasible, USCIS offices invite governmental or nongovernmental organizations offering on-site voter registration services the opportunity to introduce themselves and address the naturalization candidates before the ceremony.

The Department of Homeland Security and the General Services Administration plan to use $288 million in Inflation Reduction Act funds to complete three construction projects: the relocation of the U.S. Cybersecurity & Infrastructure Security Agency (CISA) Headquarters and Immigration & Customs Enforcement (ICE) Headquarters to the St. Elizabeths campus in southeast Washington, DC, and building a new 1,500-space parking garage, the agencies announced on August 17, 2023. The new construction will provide additional office space for approximately 6,500 personnel, DHS said.

Immigration agency X (formerly Twitter) accounts:

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

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

Alliance of Business Immigration Lawyers:

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

Recent ABIL member blogs are at http://www.abilblog.com/
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ABIL Member / Firm News

Cyrus Mehta has authored a new blog post: “Although the October 2023 Visa Bulletin is Disappointing, the Administration Still Has the Option to Advance the Dates for Filing in the Next Visa Bulletin.”

Mr. Mehta and Kaitlyn Box have co-authored a new blog post: “NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them.”

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

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

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

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

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

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

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

Mr. Yale-Loehr was quoted in the New York Daily News in NY Looking At ‘Unprecedented’ Plan to Give Migrants State Work Permits, Hochul Says.

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

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

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

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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. Second Random Selection Complete for FY 2024 H-1B Cap – U.S. Citizenship and Immigration Services has completed the second random selection process from previously submitted registrations for the fiscal year 2024 H-1B cap.

2. Justice Dept. Settles With Miami Manufacturing Group on Immigration-Related Discrimination Claims – Under the terms of the settlement, Mr. Glass Group will pay $120,000 in civil penalties.

3. Labor Dept. Publishes Round 6 FAQs on Labor Contractors Under 2022 H-2A Final Rule – The topic for the Round 6 FAQs is “H-2A Labor Contractors.”

4. USCIS Changes Receipt Process for L-1 Nonimmigrant Intracompany Transferees Under Previously Approved Blanket L Petition – U.S. Citizenship and Immigration Services announced changes to how the agency issues receipts for L-1 nonimmigrant intracompany transferees (executives, managers, or specialized knowledge professionals) under a previously approved blanket L petition.

5. USCIS Issues New Guidance for Stateless Noncitizens – The Department of Homeland Security, through U.S. Citizenship and Immigration Services (USCIS), has issued new guidance to assist stateless noncitizens in the United States who wish to obtain immigration benefits or have submitted other requests to USCIS.

6. USCIS Will Conduct Second Random Selection for FY 2024 H-1B Cap – U.S. Citizenship and Immigration Services will soon select, using a random process, additional registrations from previously submitted electronic registrations for the fiscal year 2024 H-1B cap.

7. National Security Advisor Discusses ‘Legal Pathways Initiative’ With Mexico – U.S. National Security Advisor Jake Sullivan announced additional steps the United States is taking “to expand access to safe, orderly, legal migration pathways” following meetings in Mexico between the President of Mexico and a U.S. delegation.

8. State Dept. Proposes Rule Providing for Third-Party Attendance at Certain Appointments – The Department of State proposed a rule to allow private attorneys, interpreters, and other third parties to attend certain appointments at passport agencies and centers and at U.S. embassies and consulates abroad to assist the person requesting services.

9. Labor Dept., Interagency Task Force Announce Actions on Child Labor – The Department of Labor and the Interagency Task Force to Combat Child Labor Exploitation announced recent actions to hold companies accountable for violating federal child labor laws.

10. Revised I-9 Form Released – Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security related to temporary COVID-19 flexibilities.

11. USCIS Updates Visa Availability Approach for Managing EB-5 Immigrant Investor Petition Inventory – The new approach involves grouping petitions with filing dates on or before November 30, 2019, by new commercial enterprise within the queue of petitions where the project has been reviewed and there is a visa available or soon available.

12. USCIS Updates Policy Manual on Public Charge Inadmissibility Ground – U.S. Citizenship and Immigration Services has incorporated into its Policy Manual information on the categories of adjustment of status applicants to whom the public charge ground of inadmissibility applies.

13. DHS Reduces Brunei ESTA Validity Period – The Department of Homeland Security, in consultation with the Department of State, has reduced from two years to one year the Electronic System for Travel Authorization validity period for travel by citizens and nationals of Brunei Darussalam under the Visa Waiver Program to the United States.

14. DHS Adds Eight Qualifying Fields to STEM Designated Degree Program List – The Department of Homeland Security (DHS) has amended the DHS STEM Designated Degree Program List by adding eight qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each.

15. August Visa Bulletin Announces Retrogressions in Several Categories – The Department of State’s Visa Bulletin for August includes information on establishment of a Worldwide employment-based first preference (EB-1) final action date; retrogression in the employment-based first preference (EB-1) category for India; and retrogression in the employment-based third preference (EB-3) category for Rest of World countries, Mexico, and Philippines.

16. USCIS Expands Personalized Processing Times to Work Authorization and Travel Document Applications – U.S. Citizenship and Immigration Services is expanding myProgress (formerly known as personalized processing times) to Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document.

17. OFLC Publishes Assignment Groups for H-2B Applications With Work Start Dates of October 1, 2023 – The Department of Labor’s Office of Foreign Labor Certification has published the Assignment Groups for 2,157 H-2B applications covering 40,947 worker positions with a work start date of October 1, 2023.

18. Labor Dept. Publishes Round 2 FAQ on AEWR Rule – The Office of Foreign Labor Certification has issued a set of Frequently Asked Questions (FAQs) regarding the final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States.”

19. State Dept. Clarifies India EB-3 Retrogression in July – The Department of State clarified the Final Action Date retrogression applicable to employment-based third preference (EB-3) visa applicants chargeable to India and explained the reason for prorating India EB-3 visas.

20. USCIS Launches Online Rescheduling of Biometric Appointments, Releases Guidance on ‘Good Cause’ – U.S. Citizenship and Immigration Services (USCIS) has launched a new self-service tool allowing rescheduling of most biometric services appointments before the date of the appointment. USCIS also clarified its guidance on policies and procedures related to “good cause” in this context.

21. DHS Announces New Parole Processes for Colombians, Salvadorans, Guatemalans, and Hondurans – While awaiting an immigrant visa, eligible individuals can request work authorization that can be maintained throughout the parole period. When the immigrant visa becomes available, the individual may apply to become a lawful permanent resident.

22. DHS Updates ESTA Guidance re Cuba-Related VWP Travel Restrictions – The Department of Homeland Security’s Carrier Liaison Program has incorporated changes related to the designation of Cuba as a State Sponsor of Terrorism, making individuals who have been present in Cuba on or after that date ineligible for travel under the Visa Waiver Program.

23. ABIL Global: Hong Kong – New schemes have been announced for capital investment entrants and top talent.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – August 2023

1. Second Random Selection Complete for FY 2024 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) has completed the second random selection process from previously submitted registrations for the fiscal year (FY) 2024 H-1B cap.

In March 2023, USCIS conducted an initial random selection. The initial filing period for those with selected registrations for FY 2024 was April 1, 2023, through June 30, 2023. Only petitioners with selected registrations for FY 2024 are eligible to file H-1B cap-subject petitions.

USCIS noted that the period for filing the H-1B cap-subject petition will be at least 90 days and will be indicated on the registration selection notice. Online filing is not available for H-1B petitions, so petitioners filing H-1B petitions must do so by paper, USCIS said. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2024 H-1B cap-subject petition.

Details:

• USCIS alert (July 31, 2023). https://www.uscis.gov/newsroom/alerts/second-random-selection-from-previously-submitted-registrations-complete-for-fy-2024-h-1b-cap
• USCIS alert (July 27, 2023). https://www.uscis.gov/newsroom/alerts/uscis-will-conduct-second-random-selection-from-previously-submitted-fy-2024-h-1b-cap-registrations

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2. Justice Dept. Settles With Miami Manufacturing Group on Immigration-Related Discrimination Claims

On August 2, 2023, the Department of Justice (DOJ) announced a settlement agreement with three corporate entities, Mr. Glass Doors and Windows Inc., Mr. Glass Doors and Windows Manufacturing LLC, and Powder Coating Technologies LLC (collectively Mr. Glass Group). The settlement resolves DOJ’s determination that Mr. Glass Group violated the Immigration and Nationality Act (INA) by discriminating against non-U.S. citizens when checking their permission to work in the United States.

The DOJ investigation determined that from at least March 1, 2018, to Sept. 16, 2020, Mr. Glass Group routinely required lawful permanent residents to present a specific immigration document when checking their permission to work, based on the employees’ citizenship or immigration status. Federal law allows all workers to choose which valid, legally acceptable documents to present to demonstrate their identity and permission to work, regardless of citizenship, immigration status, or national origin. The INA’s anti-discrimination provision prohibits employers from asking for specific or unnecessary documents for this purpose, DOJ said.

Under the terms of the settlement, Mr. Glass Group will pay $120,000 in civil penalties. The agreement also requires Mr. Glass Group to train its personnel on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

Details:

• DOJ press release (Aug. 2, 2023). https://www.justice.gov/opa/pr/justice-department-secures-agreement-miami-based-manufacturer-resolve-immigration-related

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3. Labor Dept. Publishes Round 6 FAQs on Labor Contractors Under 2022 H-2A Final Rule

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued Round 6 in a series of frequently asked questions (FAQs) on the 2022 H-2A Final Rule (Temporary Agricultural Employment of H-2A Nonimmigrants in the United States).

The topic for the Round 6 FAQs is “H-2A Labor Contractors.” It provides answers to questions on filing, work contracts with fixed-site agricultural business clients, housing and/or transportation provided by fixed-site agricultural business clients, Farm Labor Contractor—Farm Labor Contractor Employee Certificate(s) of Registration, and surety bonds.

Details:

• OFLC announcement (Aug. 3, 2023). https://www.dol.gov/agencies/eta/foreign-labor
• Round 6: H-2A Labor Contractors, 2022 H-2A Final Rule FAQ (Aug. 3, 2023). https://tinyurl.com/czuw8eap

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4. USCIS Changes Receipt Process for L-1 Nonimmigrant Intracompany Transferees Under Previously Approved Blanket L Petition

U.S. Citizenship and Immigration Services (USCIS) announced changes to how the agency issues receipts for L-1 nonimmigrant intracompany transferees (executives, managers, or specialized knowledge professionals) under a previously approved blanket L petition.

USCIS said that when filing Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, together with Form I-129, Petition for a Nonimmigrant Worker, the petitioner will now receive two notices: the receipt notice and the approval notice (if approved). Petitioners will no longer receive a stamped and signed Form I-129S in conjunction with the Form I-129 approval. Instead, the petitioner will receive a separate approval notice for the Form I-129S, which serves as the endorsement.

Details:

• USCIS alert (Aug. 3, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-receipts-process-for-form-i-129s

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5. USCIS Issues New Guidance for Stateless Noncitizens

The Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), has issued new guidance to assist stateless noncitizens in the United States who wish to obtain immigration benefits or have submitted other requests to USCIS. USCIS defines stateless individuals as “those who are not legally considered a citizen of any country, and therefore may be denied legal identity, and struggle to access education, healthcare, marriage, and job opportunities. Individuals can be born stateless or become stateless because of discrimination, war and conflict, or changing borders and laws.” The new guidance “clarifies when and how USCIS may consider a noncitizen stateless for the purpose of adjudicating immigration benefits or other requests.”

USCIS said it will create and implement new procedures to assist USCIS officers when assessing statelessness, to include updating training documents on statelessness, developing more robust training procedures for officers, and setting up standard operating procedures for officers to request an internal assessment of statelessness where it may be relevant to an individual’s application or benefit request. The new guidance will include “examples of documentation or evidence that may help USCIS officers determine whether noncitizens may be considered stateless for USCIS purposes,” the agency said.

In addition, USCIS said, implementing this update will “enable USCIS to gather more comprehensive and accurate data on this vulnerable group of people. The United Nations High Commissioner for Refugees (UNHCR) estimates there are approximately 218,000 people residing in the United States who are potentially at risk of statelessness.”

Details:

• USCIS news release (Aug. 1, 2023). https://www.uscis.gov/newsroom/news-releases/dhs-issues-guidance-for-stateless-noncitizens-in-the-united-states

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6. USCIS Will Conduct Second Random Selection for FY 2024 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on July 27, 2023, that it will soon select, using a random process, additional registrations from previously submitted electronic registrations for the fiscal year (FY) 2024 H-1B cap.

In March 2023, USCIS conducted an initial random selection. The initial filing period for those with selected registrations for FY 2024 was April 1, 2023, through June 30, 2023. USCIS noted that only petitioners with selected registrations for FY 2024 are eligible to file H-1B cap-subject petitions.

USCIS said it will announce when the second selection process is completed and all prospective petitioners with selected registrations have been notified that they are eligible to file an H-1B cap-subject petition for the beneficiary.

USCIS will update the myUSCIS accounts of those with selected registrations to include a selection notice, which includes details of when and where to file.

Details:

• USCIS alert (July 27, 2023). https://www.uscis.gov/newsroom/alerts/uscis-will-conduct-second-random-selection-from-previously-submitted-fy-2024-h-1b-cap-registrations

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7. National Security Advisor Discusses ‘Legal Pathways Initiative’ With Mexico

U.S. National Security Advisor Jake Sullivan released a statement on July 28, 2023, announcing additional steps the United States is taking “to expand access to safe, orderly, legal migration pathways” following meetings in Mexico between Mexican President Andres Manuel Lopez Obrador and a U.S. delegation led by White House Homeland Security Advisor Elizabeth Sherwood-Randall.

Mr. Sullivan announced the United States’ “full support” for “an international multipurpose space that the Government of Mexico plans to establish in southern Mexico to offer new refugee and labor options for the most vulnerable people who are currently in Mexico. We also commit to accept refugee resettlement referrals from qualified individuals from Cuba, Haiti, Nicaragua, and Venezuela who are already in Mexico.”

President Biden “has significantly expanded legal pathways to the United States, in line with the goals of the Los Angeles Declaration on Migration and Protection,” Mr. Sullivan said. “We encourage migrants to use these legal pathways instead of putting their lives in the hands of dangerous smugglers and traffickers. Pursuant to our laws, those seeking to enter the United States unlawfully will continue to face strong consequences, including removal, possible criminal prosecution, and a bar on reentry.”

Details:

• Statement From National Security Advisor Jake Sullivan on Legal Pathways Initiative With Mexico (July 28, 2023). https://tinyurl.com/yeckx8py

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8. State Dept. Proposes Rule Providing for Third-Party Attendance at Certain Appointments

On July 26, 2023, the Department of State (DOS) proposed a rule to allow private attorneys, interpreters, and other third parties to attend certain appointments at passport agencies and centers and at U.S. embassies and consulates abroad to assist the person requesting services (the applicant/requester).

DOS said the rulemaking will apply only to appointments in support of an application for a U.S. passport, either domestically or overseas; to appointments related to a request for a Consular Report of Birth Abroad or a Certificate of Loss of Nationality of the United States (CLN); and to other appointments for certain other services offered by American Citizens Services (ACS) units at U.S. embassies and consulates overseas (posts).

DOS will accept comments on the proposed rule until September 25, 2023.

Details:

• DOS proposed rule, 88 Fed. Reg. 48143 (July 26, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-26/pdf/2023-15744.pdf

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9. Labor Dept., Interagency Task Force Announce Actions on Child Labor

The Department of Labor (DOL) and the Interagency Task Force to Combat Child Labor Exploitation announced recent actions to hold companies accountable for violating federal child labor laws.

For example, DOL said its Wage and Hour Division has significantly enhanced child labor enforcement efforts. Between October 1, 2022, and July 20, 2023, as a result of stepped-up enforcement, the agency concluded 765 child labor cases finding 4,474 children employed in violation of federal child labor laws. The agency assessed employers more than $6.6 million in penalties. DOL said these cases “reflect a 44 percent increase in children found employed in violation of federal law and an 87 percent increase in penalties assessed from the same time period in the previous fiscal year. In addition, the agency is currently pursuing more than 700 open child labor cases.”

DOL also recently announced findings that three businesses operating 62 McDonald’s locations across Kentucky, Indiana, Maryland, and Ohio had employed 305 children to work more than the legally permitted hours and perform tasks prohibited by law for young workers. In all, DOL said, the investigations led to assessments of $212,544 in civil money penalties against the employers. DOL also announced child labor violations affecting 83 minors at 16 McDonald’s franchise locations in Louisiana and Texas. For example, the division determined one franchisee allowed three children to operate manual deep fryers, a task prohibited for employees under age 16. DOL assessed more than $77,500 in civil money penalties to two McDonald’s franchisees for violations.

Details:

• DOL news release (July 27, 2023). https://www.dol.gov/newsroom/releases/osec/osec20230727

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10. Revised I-9 Form Released

U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form I-9, Employment Eligibility Verification. Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS) related to temporary COVID-19 flexibilities. Under the alternative procedure, the employer must examine and retain copies of documents and must conduct a live video interaction with the employee.

Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023) may choose to use the new alternative procedure to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023, USCIS said.

In addition to the new checkbox, USCIS said the revised Form I-9:

• Reduces Sections 1 and 2 to a single-sided sheet;
• Is designed to be a fillable form on tablets and mobile devices;
• Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
• Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
• Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation; and
• Reduces instructions from 15 pages to 8 pages.

The revised Form I-9 (edition date 08/01/23) is available on uscis.gov. The related USCIS notice was published in the Federal Register on July 25, 2023. USCIS said employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023. Starting November 1, 2023, all employers must use the new Form I-9.

Details:

• USCIS alert (July 21, 2023). https://www.uscis.gov/newsroom/alerts/uscis-to-publish-revised-form-i-9
• “Introduction of a New Version of Employment Eligibility Verification Form,” USCIS Federal Register notice (advance copy, published July 25, 2023). https://public-inspection.federalregister.gov/2023-15667.pdf
• “Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9),” USCIS Federal Register notice (advance copy, published July 25, 2023). https://public-inspection.federalregister.gov/2023-15533.pdf

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11. USCIS Updates Visa Availability Approach for Managing EB-5 Immigrant Investor Petition Inventory

U.S. Citizenship and Immigration Services (USCIS) announced on July 18, 2023, that it is updating its visa availability approach for managing the inventory of Form I-526, Immigrant Petition by Alien Investor.

The new approach involves grouping petitions with filing dates on or before November 30, 2019, by new commercial enterprise within the queue of petitions where the project has been reviewed and a visa is available or soon will become available. USCIS said that assigning multiple petitions associated with the same new commercial enterprise to the same adjudicator(s) will allow them to process such petitions more efficiently and reduce backlogs.

USCIS said this new approach is “effective July 2023.”

Details:

• USCIS alert (July 18, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-visa-availability-approach-for-managing-form-i-526-petition-inventory
• Update to Visa Availability Approach for Form I-526 (July 18, 2023). https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/update-to-visa-availability-approach-for-form-i-526

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12. USCIS Updates Policy Manual on Public Charge Inadmissibility Ground

U.S. Citizenship and Immigration Services (USCIS) has incorporated information into its Policy Manual on the categories of adjustment of status applicants to whom the public charge ground of inadmissibility applies “to make it easier to identify whether the public charge ground of inadmissibility applies to a specific adjustment of status category.”

USCIS said the update is intended to help applicants respond accurately to questions related to the public charge ground of inadmissibility on Form I-485, Application to Register Permanent Residence or Adjust Status, which will provide officers with the information they need to adjudicate the application and, if applicable, make a public charge inadmissibility determination without issuing a Request for Evidence for this information.

Details:

• USCIS alert (July 20, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-manual-to-make-it-easier-to-identify-who-is-subject-to-the-public-charge-ground

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13. DHS Reduces Brunei ESTA Validity Period

Effective July 6, 2023, the Department of Homeland Security (DHS), in consultation with the Department of State, has reduced from two years to one year the Electronic System for Travel Authorization (ESTA) validity period for travel by citizens and nationals of Brunei Darussalam (Brunei) under the Visa Waiver Program (VWP) to the United States.

According to DHS, this reduction is due to the inability of Brunei’s government to satisfy several VWP requirements. U.S. Customs and Border Protection’s Carrier Liaison Program said this reduction only affects new ESTA applications received after the effective date and is not retroactive.

Details:

• Brunei ESTA Validity Period, CBP, 88 Fed. Reg. 43051 (July 6, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-06/pdf/2023-13441.pdf

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14. DHS Adds Eight Qualifying Fields to STEM Designated Degree Program List

The Department of Homeland Security (DHS) has amended the DHS STEM Designated Degree Program List by adding eight qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each. No CIP codes from the existing list are being removed.

The eight added fields and CIP codes are:

• Landscape Architecture (04.0601)
• Institutional Research (13.0608)
• Mechatronics, Robotics, and Automation Engineering Technology/Technician (15.0407)
• Composite Materials Technology/Technician (15.0617)
• Linguistics and Computer Science (30.4801)
• Developmental and Adolescent Psychology (42.2710)
• Geospatial Intelligence (43.0407)
• Demography and Population Studies (45.0501)

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 science, technology, engineering, or mathematics (STEM) degree as determined by DHS, as required for the F–1 student to be eligible to apply for a 24-month extension of post-completion optional practical training (OPT).

DHS noted that “[i]nterested parties, including members of the public, may nominate a CIP code for inclusion on, or removal from, the STEM list.” Nominations may be submitted by email to the SEVP Response Center at [email protected], with the subject line ‘”Attention: STEM CIP Code Nomination.”

Details:

• DHS notice, 88 Fed. Reg. 44381 (July 12, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-12/pdf/2023-14807.pdf

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15. August Visa Bulletin Announces Retrogressions in Several Categories

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

• Establishment of Worldwide employment-based first preference (EB-1) final action date. An EB-1 final action date will be established for Rest of World countries, Mexico, and Philippines in August. Rest of World countries, Mexico, and Philippines will be subject to a final action date of 01AUG23. It is likely that in October the category will return to “Current” for these countries.
• Retrogression in employment-based first preference (EB-1) for India. The EB-1 final action date for India will retrogress in August. India will be subject to an EB-1 final action date of 01JAN12. It is likely that in October the final action date will advance.
• Retrogression in employment-based third preference (EB-3) for Rest of World countries, Mexico, and Philippines. The Rest of World, Mexico, and Philippines EB-3 final action dates will retrogress in August to 01MAY20.

Details:

• Department of State’s Visa Bulletin (August 2023). https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-august-2023.html

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16. USCIS Expands Personalized Processing Times to Work Authorization and Travel Document Applications

U.S. Citizenship and Immigration Services (USCIS) announced on July 12, 2023, that it is expanding myProgress (formerly known as personalized processing times) to Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document. MyProgress is also available for applicants with a USCIS online account who file Form I-90, Application to Replace Permanent Resident Card, among others.

USCIS said that myProgress provides personalized estimates of wait times for major milestones, including final case decisions. USCIS noted that although estimates are based on historical patterns of cases with similar specifics, they “are not a guarantee of speed, cannot take into consideration all possible unique application processing delays, and may over- or underestimate the true processing time.”

To view estimated case timelines, applicants must first create a USCIS online account or log into their account and select their pending application. If they e-filed or linked one of the applicable forms to their online account using an online access code, they will see a myProgress tab for their application. The myProgress tab displays the estimated wait time until their case has a decision, along with a checkmark beside three milestones as they are completed:

• Confirmation that the application was received;
• Completion of the biometric services appointment (if required); and
• Decision on the pending case.

Applicants should visit the public Check Case Processing Times webpage to determine if they are eligible to file an Outside of Normal Processing Times service request, USCIS said.

Details:

• USCIS alert (July 12, 2023). https://www.uscis.gov/newsroom/alerts/uscis-expands-myprogress-to-form-i-765-and-form-i-131

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17. OFLC Publishes Assignment Groups for H-2B Applications With Work Start Dates of October 1, 2023

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has published the Assignment Groups for 2,157 H-2B applications covering 40,947 worker positions with a work start date of October 1, 2023. OFLC said it completed the randomization process on July 6, 2023, and assigned to National Processing Center analysts all H-2B applications placed in Assignment Group A for issuance of Notices of Deficiency or Acceptance. Group A includes enough worker positions to reach the H-2B semiannual visa allotment of 33,000.

One additional Assignment Group was created for the remaining applications and associated worker positions. Each filing was randomly given a unique number in accordance with OFLC’s randomization process and placed into a group for assignment to analysts for review and processing, OFLC said.

The agency noted that on July 6, 2023, it provided written notice to each employer (and the employer’s authorized attorney or agent) informing them about the Assignment Group for their application(s).

Details:

• OFLC notice (scroll to July 10, 2023). https://www.dol.gov/agencies/eta/foreign-labor

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18. Labor Dept. Publishes Round 2 FAQ on AEWR Rule

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued a set of Frequently Asked Questions (FAQs) regarding the final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,” which was published on February 28, 2023.

The Round 2 FAQs provide guidance on Adverse Effect Wage Rate (AEWR) determinations, including how a State Workforce Agency (SWA) and the Certifying Officer (CO) determine which AEWR applies to a job opportunity, how SWAs and COs determine the AEWR for job duties with multiple Standard Occupational Classification codes, and the impact of certain job duties on AEWRs.

Details:

• OFLC notice (scroll to July 11, 2023). https://www.dol.gov/agencies/eta/foreign-labor
• Round 2 FAQs for AEWR final rule (July 11, 2023). https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2023%20AEWR%20Rule%20FAQ%20-%20Round%202%20-%207-11-2023.pdf
• AEWR final rule, 88 Fed. Reg. 12760 (Feb. 28, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-28/pdf/2023-03756.pdf

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19. State Dept. Clarifies India EB-3 Retrogression in July

The Department of State (DOS) recently clarified the Final Action Date retrogression applicable to employment-based third preference (EB-3) visa applicants chargeable to India, effective with the July 2023 Visa Bulletin, and explained the reason for prorating India EB-3 visas.

DOS noted that the Final Action Date is the priority date of the first applicant for whom a visa number could not be immediately allocated. India is currently oversubscribed for immigrant visas in numerically limited immigrant visa categories. The annual limits will reset with the start of the new fiscal year (FY 2024) on October 1, 2023, DOS said. The EB-3 Final Action Date for India “is expected to advance once the annual limits reset for FY 2024; however, the movement of this date throughout the fiscal year depends on various factors” such as visa demand and the employment-based annual limit, which DOS projects to be substantially lower than in FY 2023.

The Department of State’s Visa Bulletin for July notes that due to high demand, retrogressions have been necessary for the employment-based third preference (EB-3) category for India, Mexico, Philippines, and Rest of World. The Rest of World, Mexico, and Philippines EB-3 final action dates have retrogressed to 01FEB22. EB-3 applicants from India are subject to a final action date of 01JAN09.

Details:

• India EB-3 Retrogression, DOS notice (June 26, 2023). https://travel.state.gov/content/travel/en/News/visas-news/india-eb-3-retrogression.html
• of State Visa Bulletin (July 2023). https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-july-2023.html

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20. USCIS Launches Online Rescheduling of Biometric Appointments, Releases Guidance on ‘Good Cause’

U.S. Citizenship and Immigration Services (USCIS) has launched a new self-service tool allowing benefit requestors, and their attorneys and accredited representatives, to reschedule most biometric services appointments before the date of the appointment. USCIS also clarified its guidance on policies and procedures related to “good cause” in this context.

USCIS said good cause exists “when the reschedule request provides sufficient reason for the benefit requestor’s inability to appear on the scheduled date.” Sufficient reasons may include but are not limited to:

• Illness, medical appointment, or hospitalization;
• Previously planned travel;
• Significant life events such as a wedding, funeral, or graduation ceremony;
• Inability to obtain transportation to the appointment location;
• Inability to obtain leave from employment or caregiver responsibilities; and
• Late delivered or undelivered biometric services appointment notice.

Previously, benefit requestors and accredited representatives could request to reschedule a biometric services appointment only by calling the USCIS Contact Center. With the new tool, those who have or create a USCIS online account can reschedule most requests for biometric services appointments without calling the Contact Center, USCIS said. The new tool, however, cannot be used to reschedule an appointment that already has been rescheduled two or more times, is within 12 hours, or has already passed. USCIS said it only accepts untimely rescheduling requests made to the USCIS Contact Center. It does not accept such requests by mail, in person at a USCIS office, or through the myUSCIS online rescheduling tool.

The biometric services appointment rescheduling tool can be accessed via a USCIS online account regardless of whether the pending case was submitted online or by mail, the agency said. Benefit requestors and accredited representatives can call the USCIS Contact Center to reschedule an appointment, but USCIS “strongly encourages users to use the new tool to save time, increase efficiency, and reduce call volume to the USCIS Contact Center.”

The USCIS Contact Center’s toll-free number inside the United States is 800-375-5283 (TTY 800-767-1833) Monday through Friday, 8 am to 8 pm ET. Outside the United States, the number is 212-620-3418.

Details:

• USCIS news release (July 6, 2023). https://www.uscis.gov/newsroom/news-releases/uscis-launches-online-rescheduling-of-biometrics-appointments
• USCIS policy alert, PA-2023-19 (July 6, 2023). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230706-ASCAppointments.pdf
• USCIS online account. https://myaccount.uscis.gov/

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21. DHS Announces New Parole Processes for Colombians, Salvadorans, Guatemalans, and Hondurans

On July 7, 2023, the Department of Homeland Security (DHS) announced the implementation of new family reunification parole processes for eligible nationals of Colombia, El Salvador, Guatemala, and Honduras. DHS said the new processes are for “nationals from those countries whose family members are U.S. citizens or lawful permanent residents and who have received approval to join their family in the United States. Specifically, nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply” to become lawful permanent residents.

DHS said that while awaiting an immigrant visa, such an individual can request work authorization that can be maintained throughout the parole period. When the immigrant visa becomes available, the individual may apply to become a lawful permanent resident.

Details:

• DHS news release (July 7, 2023). https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-processes-for-colombia-el-salvador-guatemala-and-honduras
• Colombia notice, 88 Fed. Reg. 43591 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14472.pdf
• El Salvador notice, 88 Fed. Reg. 43611 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14475.pdf
• Guatemala notice, 88 Fed. Reg. 43581 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14473.pdf
• Honduras notice, 88 Fed. Reg. 43601 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14474.pdf

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22. DHS Updates ESTA Guidance re Cuba-Related VWP Travel Restrictions

The Department of Homeland Security’s (DHS) Carrier Liaison Program has updated the Electronic System for Travel Authorization (ESTA) application and mobile app to incorporate changes related to the designation of Cuba as a State Sponsor of Terrorism on January 12, 2021, making individuals who have been present in Cuba on or after that date ineligible for travel under the Visa Waiver Program (VWP). The restriction on VWP travel also applies to individuals who are dual nationals of both a VWP country and Cuba at the time of applying.

If an ESTA has already been approved and it is later determined that the traveler has been present in Cuba or holds dual nationality with both a VWP country and Cuba, the ESTA will be revoked. Non-VWP travel to the United States is not barred for travelers affected by the restriction who do not meet exemption criteria, however. DHS said that such travelers can apply for a nonimmigrant visa at any U.S. embassy or consulate.

Limited exceptions to the VWP travel restrictions include military personnel and government employees who are exempted based on their presence in Cuba if such presence was in order to carry out their official duties for military service in the armed forces of a VWP country or as full-time government employees of a VWP country. There are no exemptions for presence in Cuba on behalf of international organizations or dual nationality with both a VWP country and Cuba, DHS said.

Details:

• CBP notice (July 6, 2023). https://tinyurl.com/49nxpy9n (scroll down)

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23. ABIL Global: Hong Kong

New schemes have been announced for capital investment entrants and top talent.

Capital Investment Entrant Scheme

The Capital Investment Entrant Scheme (CIES), which had permitted investors to acquire Hong Kong residency by making a passive investment, was suspended by the Hong Kong Special Administrative Region (HKSAR) government in 2015. Before the suspension, the latest version of the CIES in 2010 had removed investing in real estate as a qualifying investment but permitted an applicant who invested HKD 10 million (about USD 1.25M) in authorized financial products in Hong Kong to qualify for residency. This version of the CIES was then suspended on January 15, 2015, but the Immigration Department continued to process applications received on or before the suspension date. As of December 31, 2021, formal approval had been granted to 35,000 applicants to reside in Hong Kong, bringing a total investment amounting to HKD 316.9 billion.

On April 19, 2023, the HKSAR government announced in its 2023/2024 Budget Report that a new CIES will be introduced. The new scheme is expected to generate high demand for financial and related professional services, and to create more employment opportunities in wealth and asset management to facilitate Hong Kong’s position as an international wealth and asset management hub. In the new scheme, it is anticipated that new asset categories benefiting the long-term development of Hong Kong in innovation and technology sectors will be included, apart from the traditional financial asset types.

The government is formulating details of the new scheme, which will generally adopt the framework and application criteria of the original CIES, with possible adjustments to the investible areas in Hong Kong, and the new CIES investment threshold will be increased to a multiple of the previous requirement. Apart from financial assets, an applicant will be able to invest in new asset categories benefitting the long-term development of Hong Kong (including the innovation and technology sector), with a view to attracting new capital and talent to Hong Kong, bringing new impetus to the economy and fostering the development of industries in Hong Kong at the same time.

Top Talent Pass Scheme

The Top Talent Pass Scheme (TTPS) was launched on December 28, 2022, to attract highly skilled global talent to enter Hong Kong without employment conditions. Successful applicants can enter Hong Kong for two years without a sponsoring employer and will be permitted to work, change employers, or establish a business in Hong Kong. To extend their stay after the initial two years, the applicant must present documentary evidence that they have secured a professional job and remuneration package at the prevailing market level or joined a business.

To qualify for entry under TTPS, the applicant must meet one of three categories:

Category A: Persons with an annual income of HKD 2.5 million or more or its equivalent in foreign currency in the year preceding the date of application.

Category B: Persons who have obtained a bachelor’s degree from one of the world’s top 100 universities and who have at least three years of work experience over the past five years immediately preceding the date of application.

Category C: Persons who have obtained a bachelor’s degree from one of the world’s top 100 universities within the past five years immediately preceding the date of application but have less than three years of work experience, subject to an annual quota of 10,000 to be allotted on a first-come, first-served basis.

This program was launched to attract talent to Hong Kong and is a key priority for Hong Kong to remain competitive as an international financial center because of the wave of emigration on the heels of the Hong Kong government’s COVID-19-related restrictions, which have now been lifted, as well as enactment of the National Security Law.

According to Chief Executive John Lee, more than 100,000 applications have been received so far, with 61,000 approved and 10,000 arrivals, with the latest official figure for the first half of the year to be released soon. The scheme was intended to counteract a “brain drain,” which saw a net outflow of 60,000 residents in 2022.

In response to a lawmaker’s query, Director of Immigration Au Ka-wang said that nearly 95 percent of applicants for the Top Talent Pass Scheme were from mainland China, with only three percent coming from Canada, Australia, the United States, and Singapore.

Whether the persons with approvals will actually come to Hong Kong and whether these arrivals will be able to meet the needs of companies in Hong Kong to attract global talent who have left or are planning to leave remains to be seen.

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New Publications and Items of Interest

Agency Twitter accounts:

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

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

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

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ABIL Member / Firm News

Business Today’s Top 10 Most Influential Business Lawyers in the USA 2023 includes the following members of ABIL law firms:

Marketa Lindt (bio: https://www.abil.com/abil-lawyers/marketa-lindt/)

William Stock (bio: https://www.abil.com/abil-lawyers/william-stock/)

Dagmar Butte (bio: https://www.abil.com/abil-lawyers/dagmar-butte/)

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/)

Ronald Klasko (Klasko Immigration Law Partners, LLP)

For more information, see https://businesstoday.news/top-10-most-influential-immigration-business-lawyers-in-the-usa-2023/

Charles Foster (of Foster, LLP), Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/), Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/), and Bernard Wolfsdorf (bio: https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) were listed by Business Today in “Top 10 Most Influential Immigration Lawyers Revolutionizing USA’s Nationwide Policies.” https://businesstoday.news/top-10-most-influential-immigration-lawyers-revolutionizing-usas-nationwide-policies/

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) released a new podcast on H-1B issues, including the results of his H-1B Freedom of Information Act request for FY 2022 (for which he received FY 2023 data), the percentages of approval and submission, and what that means for the FY 2024 lottery. The podcast also includes discussion about the H-1B Canada program and a new bill in the U.S. Congress to double the H-1B numbers. https://soundcloud.com/user-474250731/the-immigration-hour-podcast-for-july-26-2023-1

Mr. Kuck, Mr. Paparelli, and Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) were quoted by Bloomberg Law in “SCOTUS Ruling and DACA.” Mr. Kuck said, “States don’t get to dictate federal enforcement policy. DACA is enforcement policy. It’s exactly the same thing the Supreme Court just ruled on.” Mr. Kuck said the federal government also clearly had authority to issue work permits after promulgating DACA regulations. Mr. Paparelli said, “I don’t know if DACA will survive in light of US v. Texas. I think it should because DACA is an example of deferred action. This is exactly what prosecutorial discretion means.” Mr. Yale-Loehr said the work permits offered through DACA could be the issue that conservative judges use to ignore the earlier Supreme Court ruling finding that benefits extended to immigrants could lead to further analysis of standing in a case. “The Supreme Court hinted in the Texas prosecutorial discretion case that they might come out the opposite way in DACA litigation because it concerns more than simply enforcement discretion; it also includes work authorization and Medicare eligibility,” Mr. Yale-Loehr said. https://www.bloomberglaw.com/login?target=https%3A%2F%2Fwww.bloomberglaw.com%2Fcitation%2FBNA%252000000183a948d0f5ab93effc90d30001 [subscription required]

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by Bloomberg Law in “Lawmakers Push Biden to Allow Earlier Green Card Applications.” He said that it’s unclear whether all employment-based immigrants have been deemed eligible for green cards at the start of the fiscal year but noted that the Department of Homeland Security (DHS) “has adopted a flexible interpretation of visa availability before.” Filing a green card application would protect visa holders’ dependent children from aging out of legal status when they turn 21, Mr. Mehta said. The article notes that in February, the Biden administration “said it would ‘freeze’ a dependent child’s age based on the date a parent applied for permanent residency; previously DHS used the date a visa was deemed officially available.” Mr. Mehta said, “This relief can be provided by a stroke of a pen advancing the filing dates and allowing many more people to apply for adjustment of status.” https://news.bloomberglaw.com/daily-labor-report/lawmakers-push-biden-to-let-immigrants-seek-green-cards-earlier

Mr. Mehta and Kaitlyn Box co-authored several blog posts: “Eliminate H-1B and Green Card Caps!,” http://blog.cyrusmehta.com/2023/07/eliminate-the-h-1b-and-green-card-caps.html; “DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State,” https://tinyurl.com/2p833exs

Mr. Mehta has authored a new blog post: “Advancing the Dates for Filing in the State Department Visa Bulletin Will Restore Balance and Sanity to the Legal Immigration System.” http://blog.cyrusmehta.com/2023/07/advancing-the-dates-for-filing-in-the-state-department-visa-bulletin-will-restore-balance-and-sanity-to-the-legal-immigration-system.html

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by the Times of India in “U.S. Appeals Court Upholds Filing of Amended H-1B Applications on Change in Work Location.” Mr. Mehta shared his views on why filing H-1B amendments each time a worker moves outside the area of employment—even to a new home worksite—can be painful and burdensome for employers and H-1B workers. https://timesofindia.indiatimes.com/nri/us-canada-news/us-appeals-court-upholds-filing-of-amended-h-1b-applications-on-change-in-work-location/articleshow/101542599.cms?from=mdr

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog post: “Canada Begins New Program for Holders of U.S. H-1B Visas, And They Really Do Mean H-1B Visas, Not H-1B Status, Although Family Members Need Not Have Any Kind of H-4.” http://blog.cyrusmehta.com/2023/07/canada-begins-new-program-for-holders-of-u-s-h-1b-visas-and-they-really-do-mean-h-1b-visas-not-h-1b-status-although-family-members-need-not-have-any-kind-of-h-4.html

WR Immigration will present a webinar on Thursday, August 10, 2023, at 11 a.m.: “Confused About the I-9 Changes? Your COVID-19 Flexibilities and Other I-9 Questions Answered.” The host will be Kimberley Best Robidoux, Partner. https://wolfsdorf.com/i-9-alternative-procedure/

WR Immigration announced that many of its clients from offices in Boston, New York, Santa Monica, San Diego, and Oakland were selected in the second round of the H-1B lottery. “It would be sad to send some of the best and brightest graduates in STEM, healthcare, and other critical fields back to their countries of origin after graduation,” said managing partner Bernard Wolfsdorf. “These are some of the top graduates from our universities. We need these bright young people to help to grow our economy and keep the US strong.” He cautioned that green card waiting lines are getting longer and said employers are advised to file their PERM applications as soon as possible. “The H-1B work visa is a dual intent visa, so there is no reason not to get started by filing the PERM green card application,” he said. https://wolfsdorf.com/wr-immigration-celebrates-clients-selected-in-second-round-of-h-1b-lottery/

WR Immigration has posted a new Q&A: “USCIS Announces Second H-1B Lottery for FY 2024.” https://wolfsdorf.com/h1b-lottery/

WR Immigration has published its Immigration Update, with the latest news on filing windows for H-2B applications, new H-2A hourly wage rates, the CIS Ombudsman’s annual report, and more. https://wolfsdorf.com/immigration-update-20230703/

Farshad Owji, WR Immigration partner and president of the American Immigration Lawyers Association (AILA), was quoted on the announcement of new family reunification parole processes for Colombians, Salvadorans, Guatemalans, and Hondurans: “AILA applauds the administration’s wise expansion of the Family Reunification Parole programs to nationals from Colombia, El Salvador, Guatemala, and Honduras. The program permits qualified individuals residing in their home country to more quickly reunite with their U.S. citizen and legal resident family members in the United States. By applying its legal authority to reunite families, the administration is building on its strategy of providing legal pathways for migration and recognizing a primary driver of migration: the basic desire to live with family. Today, the administration has strengthened all American communities by reinforcing family reunification as the cornerstone of U.S. immigration policy.” https://www.aila.org/advo-media/press-releases/2023/aila-president-welcomes-implementation-of-new

Mr. Yale-Loehr was quoted by Newsweek in “Ron DeSantis Gets Boost Over Florida Anti-Immigration Law.” Mr. Yale-Loehr said that immigration has “been an emotional issue throughout U.S. history. People like immigrants they know, but worry about overall immigration levels. For that reason, it is easy for politicians to demonize immigrants by mouthing simple soundbites rather than tackling the complexity of the issue.” https://www.newsweek.com/ron-desantis-boost-florida-immigration-law-1816819

Mr. Yale-Loehr reported in Immigration Courtside: “Thanks to the excellent work of our law students, Cornell asylum clinic received three BIA remands this spring.” Summaries are available at https://immigrationcourtside.com/2023/07/29/%e2%9a%96%ef%b8%8f%f0%9f%97%bd-triple-header-cornell-immigration-clinic-wins-3-bia/

Mr. Yale-Loehr co-authored a report, ” At the Breaking Point: Rethinking the U.S. Immigration Court System,” published by the Migration Policy Institute. The report traces the factors that have driven the immigration court system to crisis. It assesses steps taken to improve the courts’ functioning and offers recommendations that the executive branch could implement to address massive backlogs and improve the pace and quality of decision-making. https://www.migrationpolicy.org/research/us-immigration-courts

Mr. Yale-Loehr was quoted by PolitiFact in “A New Program to Obtain a ‘Green Card’ Has Not Been Approved.” He said, “There is no new program that makes the process of obtaining a green card easier and only USCIS and the Department of State can issue the cards.” https://www.politifact.com/factchecks/2023/jul/12/facebook-posts/no-se-ha-aprobado-un-programa-nuevo-para-obtener-u/ (Spanish, with English translation available)

Mr. Yale-Loehr was interviewed on the podcast “This Week in Immigration” about recent immigration cases. He discussed the Supreme Court’s latest decision to uphold the Biden administration’s deportation priorities in U.S. v. Texas, and upcoming cases related to the future of the Deferred Action for Childhood Arrivals program and the administration’s new asylum restrictions. https://bipartisanpolicy.org/podcast-episode/episode-148-this-week-in-immigration/

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Government Agency Links

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

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

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

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In this issue:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

Download:

ABIL Immigration Insider – June 2023

1. Boycott Florida? Truckers Protest New Law

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

Details:

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

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

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

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

Details:

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

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

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

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

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

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

Details:

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

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

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

New Filing Location Details

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

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

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

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

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

New Form I-589 and Documentation Requirements

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

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

Details:

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

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

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

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

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

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

Details:

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

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

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

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

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

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

Details:

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

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

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

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

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

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

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

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

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

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

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

Details:

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

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

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

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

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

Details:

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

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

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

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

Details:

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

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

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

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

Details:

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

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

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

Statistics/Data

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

H-2B Labor Recruiter List

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

Details:

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

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14. EOIR Announces 19 New Immigration Judges

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

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

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

Details:

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

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

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

DHS/DOJ Final Rule

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

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

DHS/DOS Fact Sheet

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

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

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

Details:

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

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

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16. June Visa Bulletin Reports India Employment-Based Retrogressions

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

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

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

Details:

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

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

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

Details:

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

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

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

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

Details:

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

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

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

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

Details:

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

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

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

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

Details:

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

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21. ABIL Global: Canada

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

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

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

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

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

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

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

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

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

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New Publications and Items of Interest

Agency Twitter accounts:

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

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

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

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ABIL Member / Firm News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EUROPE-MIDDLE EAST-AFRICA

Global Elite Thought Leaders:

Laura Devine – Laura Devine Immigration, London, UK

Ana Garicano – Sagardoy Abogados, Madrid, Spain

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

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

Nicolas Rollason – Kingsley Napley, London, UK

Karl Waheed – Karl Waheed Avocats, Paris, France

Leading Firms:

Kingsley Napley, London, UK

Laura Devine Solicitors, London, UK

Flynn Hodkinson, London, UK

Other Leading Individuals:

BELGIUM: Bernard Caris – Younity, Brussels, Belgium

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

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

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

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

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

SPAIN: Ana Garicano – Sagardoy Abogados, Madrid, Spain

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

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

NORTH AMERICA

Global Elite Thought Leaders:

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

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

Charles Kuck – Kuck Baxter Immigration, Atlanta, United States

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

Angelo Paparelli – Los Angeles, United States

Gregory Siskind – Siskind Susser, Memphis, United States

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

Bernard Wolfsdorf – Wolfsdorf Rosenthal, Santa Monica, United States

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

Leading Firms:

Klasko Immigration Law Partners, United States

Foster, United States

Wolfsdorf Rosenthal, United States

Other Leading Individuals:

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

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

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

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

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

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

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

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

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

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

ASIA-PACIFIC

Global Elite Thought Leaders:

Phillip Yip – Phillip Yip & Associates, Sydney, Australia

Other Leading Individuals:

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

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

LATIN AMERICA

Global Elite Thought Leaders:

Ariel Orrego-Villacorta – AOV Abogados, Lima, Peru

Other Leading Individuals:

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

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

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

Delisa Bressler – Foster – Austin, TX

Helene Dang – Foster – Houston, TX

Corina Farias – Foster – Austin

Charles Foster – Foster – Houston, TX

Ronald Klasko – Klasko Immigration Law Partners – Philadelphia, PA

Ira Kurzban – Kurzban Kurzban – Coral Gables, FL

Avalyn Langemeier – Foster – Houston, TX

Marketa Lindt – Sidley – Chicago, IL

Robert Loughran – Foster – Austin, TX

John Meyer – Foster – Austin, TX

Dorothee Mitchell – Foster – Austin, TX

Farshad Owji – WR Immigration – San Francisco, CA

Angelo Paparelli – Vialto Law – Los Angeles, CA

Jose Perez – Foster – Houston

John Pratt – Kurzban Kurzban – Coral Gables, FL

Edward Ramos – Kurzban Kurzban – Coral Gables, FL

Kimberley Best Robidoux – WR Immigration – San Diego, CA

William Stock – Klasko Immigration Law Partners – Philadelphia, PA

Helena Tetzeli – Kurzban Kurzban – Coral Gables, FL

Bernard Wolfsdorf – WR Immigration – Santa Montica, CA

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Government Agency Links

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

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

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

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