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ABIL Immigration Insider • March 3, 2024

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In this issue:

1. FY 2025 H-1B Cap Registration Period Opens Soon; USCIS Issues Reminders for Employers About Online Filing, Other New Requirements for Cap and Non-Cap Petitions – The initial registration period for the FY 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. A USCIS online account is required to register each beneficiary electronically for the selection process and pay the associated $10 registration fee.

2. Certain Updated Forms Take Effect April 1 With No Grace Period – Under the new fee final rule effective April 1, 2024, the new 04/01/24 editions of several forms will be required.

3. Reminder: Premium Processing Fees Have Increased – U.S. Citizenship and Immigration Services reminded employers that fees for Form I-907, Request for Premium Processing, increased as of February 26, 2024.

4. Eligible Ukrainians Can Apply for Re-Parole – Eligible Ukrainian citizens and their immediate family members who were paroled into the United States on or after February 11, 2022, and are physically present can apply for re-parole.

5. DOS Implements New Visa Restrictions for Transportation Operators Facilitating Irregular Migration – The Department of State has implemented a new visa restriction policy that “targets owners, executives, and senior officials of charter flight, ground, and maritime transportation companies providing transportation services designed for use primarily by persons intending to migrate irregularly to the United States.”

6. E-Verify to Pilot ‘Next Generation’ Service in Spring 2024 – E-Verify+ will include streamlining of Form I-9 and the employment eligibility verification process.

7. DOS Signs MOU With Germany on Exchange Visitor Program – The Department of State has signed a memorandum of understanding with Germany to allow certain German principals to come to the United States as J-1 exchange visitors.

8. Mayorkas Impeached; Conviction in Senate Seems Unlikely – After a previous failed attempt to impeach Secretary of Homeland Security Alejandro Mayorkas, Republicans in the House of Representatives succeeded in impeaching Mr. Mayorkas on February 13. Conviction in the Senate seems highly unlikely.

9. President Orders Deferred Enforced Departure for Palestinians in the United States – On February 14, 2024, President Biden directed the Secretary of Homeland Security to grant Deferred Enforced Departure to Palestinians in the United States for 18 months, with some exceptions.

10. ETA Extends Comment Period for Responses to PERM Schedule A Request for Information – ETA said it has received “a very limited number of comments, only a few of which have responded to the questions posed in the RFI.” The public comment period has been extended to May 13, 2024.

11. CIS Ombudsman Releases Tips on How to Avoid Getting Locked Out of Your USCIS Account – The tips include how to create a strong password, the importance of logging in regularly to maintain access, what to do when locked out, how to reset a password, security considerations, and how USCIS’s Technical Help Desk works to assist with account access.

12. ETA Updates Allowable Charges for Agricultural Workers’ Meals and for Travel Reimbursement, Including Lodging – The Employment and Training Administration announced updates to the allowable monetary charges that employers of H-2A workers, in occupations other than herding or production of livestock on the range, may charge workers when the employer provides three meals per day. The annual notice also announced the maximum travel subsistence meal reimbursement a worker with receipts may claim under the H-2A and H-2B programs, and reminded employers of their obligations concerning overnight lodging costs as part of required subsistence.

13. USCIS Releases FY 2023 Data and Highlights of FY 2024 Plans – U.S. Citizenship and Immigration Services released end-of-fiscal-year 2023 data and highlights of its plans for FY 2024.

14. EOIR to Transition to DOJ Login – The Executive Office for Immigration Review is implementing a phased migration to DOJ Login that it expects to complete this spring. EOIR will notify users by email when it is time for them to activate their new DOJ Login ID.

15. ABIL Global: Canada – Québec reopened its Immigrant Investor Program on January 1, 2024.

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

ABIL Member / Firm News – ABIL Member / Firm News

Government Agency Links – Government Agency Links

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ABIL Immigration Insider – March 2024

1. FY 2025 H-1B Cap Registration Period Opens Soon; USCIS Issues Reminders for Employers About Online Filing, Other New Requirements for Cap and Non-Cap Petitions

U.S. Citizenship and Immigration Services (USCIS) reminded employers that the initial registration period for the FY 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. A USCIS online account is required to register each beneficiary electronically for the selection process and pay the associated $10 registration fee. USCIS also announced:

  • Starting with the FY 2025 initial registration period, USCIS will require registrants to provide valid passport information or valid travel document information for each beneficiary. The passport or travel document provided must be the one the beneficiary, if or when abroad, intends to use to enter the United States if issued an H-1B visa. Each beneficiary must only be registered under one passport or travel document.
  • On February 28, 2024, USCIS launched new myUSCIS organizational accounts to allow multiple people within an organization, as well as their legal representatives, to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907, Request for Premium Processing Service. A new organizational account is required to participate in the H-1B Electronic Registration Process as of March 2024.
  • In response to reports from practitioners about problems with setting up myUSCIS accounts, USCIS said:

We are working expeditiously to address any technical issues that may arise for legal representatives whose accounts migrated when they logged into their online account on or after Feb. 14, 2024, including impacts on cases other than H-1B filings. If you previously experienced issues upon logging in to your online account after migration, please log back in to see if your issues have been resolved by our ongoing technical fixes. For additional information and resources, please review updated information on the Organizational Accounts Frequently Asked Questions page.

  • In March, USCIS will launch online filing of Form I-129, Petition for a Nonimmigrant Worker, and associated Form I-907 for non-cap H-1B petitions. Those who are filing Form I-129 alone or with Form I-907 may also file online.
  • On April 1, 2024, USCIS service centers will no longer accept Form I-129 petitions requesting
    H-1B Specialty Occupation Worker or H-1B1 (HSC) Free Trade Agreement Worker (specialty occupation from Chile and Singapore) classification. USCIS will reject such H-1B or H-1B1 (HSC) petitions received at a USCIS service center on or after April 1, 2024. There will be no grace period Beginning on April 1, 2024, all paper-filed Form I-129 petitions requesting H-1B1 (HSC), or H-1B classification, including those with a concurrent Form I-907, Request for Premium Processing Service, and those with concurrently filed Form I-539 and/or Form I-765, must be filed at a USCIS lockbox facility.
  • USCIS will provide the lockbox filing addresses for paper-filed forms in late March via web alert and on its Form I-129 Direct Filing Addresses
  • USCIS is hosting several Tech Talks to answer questions about organizational accounts.

Details:

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2. Certain Updated Forms Take Effect April 1 With No Grace Period

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that under the new fee final rule effective April 1, 2024, the new 04/01/24 editions of several forms will be required, including:

Note: USCIS will only accept the 04/01/24 edition of these forms if they are postmarked on or after April 1, 2024.

USCIS explained that although it usually provides “a grace period when publishing new forms, the forms listed above include changes necessary for us to administer the new fees.” Beginning April 1, 2024, applicants and petitioners must submit the 04/01/24 edition of these forms with the appropriate fee listed on the USCIS Fee Schedule G-1055. USCIS said it will reject earlier versions of the above forms.

Details:

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3. Reminder: Premium Processing Fees Have Increased

U.S. Citizenship and Immigration Services (USCIS) reminded employers that fees for Form I-907, Request for Premium Processing, increased as of February 26, 2024. The new fees are:

  • $2,805 if you are requesting premium processing of Form I-129 requesting E-1, E-2, E-3, H-1B,
    H-3, L (including blanket L-1), O, P, Q, or TN nonimmigrant classification.
  • $1,685 if you are requesting premium processing of Form I-129 requesting H-2B or R nonimmigrant classification.
  • $2,805 if you are requesting premium processing of Form I-140 requesting EB-1, EB-2, or EB-3 immigrant visa classification.
  • $1,685 if you are requesting premium processing of Form I-765 with eligibility category (C)(3)(A), (C)(3)(B), or (C)(3)(C).
  • $1,965 if you are requesting premium processing of Form I-539 seeking change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status.

USCIS said that if it receives a Form I-907 postmarked on or after February 26, 2024, with the incorrect filing fee, it will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (e.g., UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt, USCIS said.

Details:

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4. Eligible Ukrainians Can Apply for Re-Parole

U.S. Citizenship and Immigration Services (USCIS) announced on February 27, 2024, that eligible Ukrainian citizens and their immediate family members who are physically present in the United States can now be considered for re-parole to continue to temporarily remain in the United States.

Ukrainian citizens and their immediate family members who were paroled into the United States on or after February 11, 2022, can apply for re-parole under this process, USCIS said. The agency will consider these applications “on a discretionary, case-by-case basis for urgent humanitarian reasons or significant public benefit,” as with any parole application.

If USCIS approves the re-parole application, the applicant may then file Form I-765, Application for Employment Authorization, in category (c)(11) to apply for a new Employment Authorization Document as proof of employment authorization consistent with the re-parole period.

Details:

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5. DOS Implements New Visa Restrictions for Transportation Operators Facilitating Irregular Migration

The Department of State (DOS) has implemented a new visa restriction policy that “targets owners, executives, and senior officials of charter flight, ground, and maritime transportation companies providing transportation services designed for use primarily by persons intending to migrate irregularly to the United States.”

The new policy expands and supersedes the Nicaragua policy on charter flights issued in November 2023.

Details:

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6. E-Verify to Pilot ‘Next Generation’ Service in Spring 2024

E-Verify announced on February 22, 2024, that it will launch its “next generation” service, E-Verify+, as a pilot in spring 2024. E-Verify said the “plus” in E-Verify+ represents benefits the new service will provide to employers and employees, including “added efficiency” for employers and “more control over their personal information” for employees.

E-Verify+ will include streamlining of Form I-9 and the employment eligibility verification process. Feedback will be sought as part of the pilot process. Updates will be posted on E-Verify.gov.

Details:

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7. DOS Signs MOU With Germany on Exchange Visitor Program

The Department of State (DOS) announced on February 20, 2024, that it signed a memorandum of understanding (MOU) with the Federal Republic of Germany. The MOU waives certain regulatory provisions to establish an exchange of German principals to secondary schools overseen and financed by the government of Germany in the United States.

Exchange visitors under the MOU are “experts in a field with specialized knowledge or skills. Program participants are required to be German citizens, hold a valid German passport, and have teaching certification for the secondary level or an advanced degree equivalent to a Master’s degree in school administration or a similar field. Program participants are selected by the Federal German Foreign Office and its subordinate authority, the Central Agency for Schools Abroad. Participants are placed as principals in German schools in the United States that are recognized and overseen by the Federal Foreign Office,” the notice states.

DOS noted that a foreign national is eligible to participate in an exchange visitor program as a specialist if that individual does not fill a permanent or long-term position of employment while in the United States.

Details:

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8. Mayorkas Impeached; Conviction in Senate Seems Unlikely

After a previous failed attempt to impeach Secretary of Homeland Security Alejandro Mayorkas on February 6, 2024, Republicans in the House of Representatives succeeded in impeaching Mr. Mayorkas on February 13 with a vote of 214-213. Republicans accused Mr. Mayorkas of failing to maintain operational control of the border, among other things.

The Senate will next consider the articles of impeachment after February 26, 2024, when they return. The Senate has a variety of options, including voting to dismiss, acquit, or convict Mr. Mayorkas, among other things. Conviction, which would require a two-thirds majority vote, is considered highly unlikely. A vote to dismiss, by contrast, would need just a simple majority. Sen. James Lankford (R-OK) said the impeachment effort would be “dead on arrival” in the Senate.

Reaction from immigration advocates was sharp. American Immigration Lawyers Association (AILA) Executive Director Ben Johnson called the impeachment effort “politically motivated.” He said, “The accusations that Secretary Mayorkas breached ‘public trust’ continue to ring hollow given he was implementing policy as Cabinet Secretaries have done throughout American history,” and “[w]eaponizing the impeachment process is both unconstitutional and dangerous for the future of a functioning government.” Jeremy Robbins, executive director of the American Immigration Council, said, “All this political grandstanding around Mayorkas does absolutely nothing to address our challenges at the border.”

Details:

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9. President Orders Deferred Enforced Departure for Palestinians in the United States

On February 14, 2024, President Biden directed the Secretary of Homeland Security to grant Deferred Enforced Departure (DED) to Palestinians in the United States for 18 months, with some exceptions. He further directed the Secretary to authorize employment for Palestinian noncitizens whose removal has been deferred for the duration of such deferral, and “to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Palestinians.” The Biden administration said it is taking these actions to give Palestinians in the United States a “temporary safe haven” due to deteriorating humanitarian conditions in Gaza.

The memorandum lists exceptions to DED for Palestinians, including those who have not continuously resided in the United States since February 14, 2024, who have voluntarily returned to the Palestinian territories after that date, who are inadmissible under certain provisions of U.S. immigration law or subject to extradition, who have been convicted of any felony or two or more misdemeanors committed in the United States, or who the Secretary deems a danger to public safety.

According to reports, about 6,000 Palestinians are eligible for DED under the memorandum.

Details:

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10. ETA Extends Comment Period for Responses to PERM Schedule A Request for Information

The Department of Labor’s Employment and Training Administration (ETA) has extended the comment period for responses to its PERM Schedule A Request for Information (RFI). ETA said it has received “a very limited number of comments, only a few of which have responded to the questions posed in the RFI.” The public comment period was set to conclude on February 20, 2024, but has been extended to May 13, 2024.

As background, on December 21, 2023, ETA published the RFI, soliciting public input on potential revisions to Schedule A of the permanent labor certification process to include occupations in science, technology, engineering, and mathematics (STEM), including artificial intelligence-related occupations and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers.

Details:

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11. CIS Ombudsman Releases Tips on How to Avoid Getting Locked Out of Your USCIS Account

On February 14, 2024, the Office of the Citizenship and Immigration Services (CIS) Ombudsman released a tip sheet on how people with individual U.S. Citizenship and Immigration Services (USCIS) online accounts can maintain access and avoid getting locked out of their accounts.

The tips include how to create a strong password, the importance of logging in regularly to maintain access (the tip sheet suggests “once a month or once every few months”), what to do when locked out, how to reset a password, security considerations, and how USCIS’s Technical Help Desk works to assist with account access.

Details:

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12. ETA Updates Allowable Charges for Agricultural Workers’ Meals and for Travel Reimbursement, Including Lodging

On February 13, 2024, the Department of Labor’s Employment and Training Administration (ETA) announced updates to the allowable monetary charges that employers of H-2A temporary agricultural workers, in occupations other than herding or production of livestock on the range, may charge workers when the employer provides three meals per day. The annual notice also announced the maximum travel subsistence meal reimbursement a worker with receipts may claim under the H-2A and H-2B temporary nonagricultural programs, and reminded employers of their obligations with respect to overnight lodging costs as part of required subsistence.

The notice provides that:

  • The updated maximum allowable charge has increased from $15.46 to $15.88 per day, unless the Office of Foreign Labor Certification’s Certifying Officer approves a higher charge.
  • The standard meals-and-incidental-expenses (M&IE) rate is $59 per day for 2024. Workers who qualify for travel reimbursement are entitled to reimbursement for meals up to the standard M&IE rate when they provide receipts. In determining the appropriate amount of reimbursement for meals for less than a full day, the employer may limit the meal expense reimbursement, with receipts, to 75 percent of the maximum reimbursement for meals, or $44.25, based on the General Services Administration’s per diem schedule.

Details:

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13. USCIS Releases FY 2023 Data and Highlights of FY 2024 Plans

On February 9, 2024, U.S. Citizenship and Immigration Services (USCIS) released end-of-fiscal-year (FY) 2023 data. Below are selected highlights of the data and USCIS’s plans for FY 2024:

FY 2023 Backlog Reductions

  • USCIS received 10.9 million filings and completed more than 10 million pending cases, both of which it called “record-breaking numbers.” In doing so, USCIS said it reduced overall backlogs by 15%, including “effectively eliminating the backlog of naturalization applications.” The median processing time for naturalization applicants also decreased from 10.5 months to 6.1 months by the end of the fiscal year.

FY 2023 Actions Affecting Workers and Employers

  • USCIS and the Department of State issued more than 192,000 employment-based immigrant visas and, for the second year running, ensured that no available visas went unused, USCIS said. The agency increased the maximum validity period of Employment Authorization Documents (EADs) to five years for adjustment of status applicants. USCIS said it clarified eligibility for a range of immigration services, including the International Entrepreneur Rule, the EB-1 immigrant visa for individuals of extraordinary ability and outstanding professors and researchers, and the waiver of the two-year foreign residence requirement for J-1 cultural and educational exchange visitors (including foreign medical graduates). The agency also proposed a new rule “to strengthen worker protections and the integrity of the H-2 temporary worker program.”
  • USCIS removed the biometrics fee and appointment requirement for applicants for a change or extension of nonimmigrant status and updated the agency’s interpretation of the Child Status Protection Act to prevent many child beneficiaries of noncitizen workers from “aging out” of child status, allowing them to seek permanent residence along with their parents.

FY 2024 Plans

In FY 2024, USCIS plans to:

  • Work to maintain median processing times of 30 days for certain EAD applications filed by individuals who entered the United States after scheduling an appointment through the CBP One mobile application or the CHNV processes.
  • Continue to update policy guidance for the EB-5 investor visa program, incorporating statutory reforms to the Regional Center Program as they relate to regional center designation and other requirements for immigrant investors.
  • Continue to update policy guidance for student classifications, including eligibility for employment authorization, change of status, extension of stay, and reinstatement of status for F and M students and their dependents in the United States.
  • Finalize a new rule on the H-1B program for specialty occupation workers.
  • Propose a new rule on the adjustment of status process, including regulations clarifying the age calculation under the Child Status Protection Act and providing employment authorization for certain derivative beneficiaries awaiting immigrant visa availability when they present compelling circumstances.

Details:

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14. EOIR to Transition to DOJ Login

On February 9, 2024, the Department of Justice (DOJ)’s Executive Office for Immigration Review (EOIR) announced new procedures for accessing the EOIR Courts & Appeals System (ECAS) Case Portal. EOIR is transitioning to “DOJ Login,” a cloud-based identity management and authentication service. To facilitate this change, users must confirm or correct their primary email address, which will serve as their DOJ Login ID.

All currently registered practitioners will be migrated to DOJ Login ID to access ECAS Case Portal, EOIR said. EOIR is implementing a phased migration that it expects to complete this spring. EOIR said it has developed detailed instructions for this phased transition and will notify users by email when it is time for them to activate their new DOJ Login ID.

Those who have questions or need assistance can email customer support at [email protected] or call 1-877-388-3842.

Details:

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15. ABIL Global: Canada

Québec reopened its Immigrant Investor Program (QIIP) on January 1, 2024.

The QIIP is the only investment-based immigration program in Canada that does not require the foreign investor to show proof of active business management in Canada at the time of submission of the application, including proof of starting or establishing a business or hiring staff or employees in Canada.

The Québec government seeks to maintain a high level of francophone economic immigration in the Province of Québec. Proof of French language capacity on filing the application accepted by Québec Immigration are a Certificate of Test Results or Diploma for a recognized French language test such as the TEFAQ, TEF Canada, TCF, TCFQ, or DELF/DALF, confirming that the applicant has reached a B2 level or higher in oral French (speaking and listening) and/or written French (reading and writing).

At the time of submission, applicants must also demonstrate that they meet the following criteria:

  • They are at least 18 years old;
  • They have a high school diploma at minimum (equivalent to a secondary diploma in Québec);
  • They have at least two years of management experience in the five-year period before submitting the application; and
  • They have at least CAD $2,000,000 of net assets (just under USD $1,500,000), accompanied with proof that the net assets were accumulated legally.

In addition, interested applicants must sign and agree to an Investment Agreement with a Québec government-authorized financial intermediary. Once the application is approved, they must make a CAD $1,000,000 five-year investment with IQ Immigrants Investisseurs Inc. (IQII), a Québec crown corporation. The investment is guaranteed and bears no interest. Applicants also must make a non-refundable financial contribution of CAD $200,000 to the Québec government.

Once the applicants have fulfilled the financial requirements of the Québec Immigrant Investor Program, they will be directed to Immigration, Refugees and Citizenship Canada (IRCC) to apply for a three-year Canadian Work Permit. The principal applicant and their spouse, if applicable, must meet a residency requirement of at least 12 months in Québec within the first two years of being issued their Canadian Work Permits. The principal applicant must reside in Québec for a minimum of six months, while the remaining six months of residency required can be satisfied by either the principal applicant or their spouse. Once they have satisfied this residence requirement, the applicant and the spouse can then apply for a Certificat de Sélection du Québec (CSQ) from Québec and, once the CSQs are received, apply for Canadian permanent residence with IRCC.

There is no quota for the program or deadline for the submission of applications.

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New Publications and Items of Interest

The American Immigration Council published a practice advisory, Litigation for Business Immigration Practitioners. The advisory explains how to assess whether filing suit in federal court is the right option for challenging an employment-based petition denial. It provides factors to consider before filing suit, such as the strength of the administrative record and whether the preconditions for an Administrative Procedure Act cause of action have been met. The advisory also explains the components of a complaint and issues to consider, such as whether the court has jurisdiction, where to file, who the parties should be, what causes of action could be asserted, available remedies, and standards a federal court will apply in reviewing the agency’s decision.

E-Verify will hold a series of upcoming webinars on I-9 and E-Verify issues:

E-Verify webinar schedule: E-Verify regularly updates its calendar of webinars.

Systematic Alien Verification for Entitlements (SAVE) webinar schedule:

For more information and additional webinars, see https://www.uscis.gov/save/save-resources/save-webinars.

Immigration agency X (formerly Twitter) accounts:

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

Alliance of Business Immigration Lawyers:

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ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, welcomed Nick Lowrey to the firm. Mr. Lowrey has worked in immigration law for seven years and represents clients across industries. His practice primarily focuses on business immigration and worksite compliance. He has in-depth experience advising employers across a range of employment-based temporary and permanent visa categories. Mr. Lowrey leads clients through large-scale I-9 audits, provides strategic policy consulting, and offers compliance trainings to ensure clients are meeting their obligations. He consults with clients on unique I-9 issues, including suspect document assessments, immigration-related fraud, and anti-discrimination policies.

Charles Kuck appeared on Atlanta News First to comment on criticisms raised by Georgia lawmakers about the undocumented status of the University of Georgia murder suspect.

Mr. Kuck was quoted by 285 South in It’s About to Get More Expensive to File Immigration Paperwork. Regarding increases in immigration-related fees, he said, “It’s a massive money grab with no justification.” The article notes that he acknowledged that the fee increase was less than what was first proposed, but, he said, “it’s still very bad.” He also wasn’t optimistic that an increase in fees would lead to faster processing times. “[They] can’t justify doubling the cost for [a green card through] marriage.… No way [is it] related to the actual cost of doing the application.” Commenting on the fact that immigration lawyers and advocacy organizations are urging people to get their applications in before April 1 before the new fees kick in, Mr. Kuck said, “They should take advantage of the benefits that are available [at] current pricing.”

Mr. Kuck was quoted by Marianne in In the United States, the Immigration Debate is Undermined by the Biden-Trump Duel (by subscription; in French with English translation available). He noted that under current law, all people who arrive in the United States, whether at a legal port of entry or illegally, have the right to apply for asylum. However, he explained that the wait for those with legitimate asylum claims is long. For example, he said, “I have clients who applied for asylum in 2014 and still have not had a hearing before a judge.” If the proposed Senate border deal had been enacted, “there would be 4,000 new officials to handle asylum applications, and those cases would be adjudicated within six months. As many applications would be rejected more quickly, there would be fewer applicants, as many would be deported relatively quickly. This message then [would spread] to the countries of origin and fewer people [would] try their luck.”

Mr. Kuck was quoted by the Atlanta Journal-Constitution in Border Politics Are Worse for Joe Biden Than Anyone Else. He discussed the reasons Biden was willing to work with Republicans on immigration and said the bill they crafted over the last four months could have made a meaningful difference: “There’s a deterrence that comes from declaring an emergency, limiting the applications at ports of entry, and automatically deporting everybody else who is not at a port of entry. What’s missing now is the deterrence factor.”

Mr. Kuck was quoted by the EB-5 Investors blog in How EB-5 Investors Must Prepare for Rejection in Their Application Process. He said, “The reality is that cases are denied and/or rejected for various reasons and no lawyer can guarantee success on a case. This is especially true as it relates to the source of funds (the main reasons [EB-5 investor] cases are denied).” Noting that failing to prove the legality of the EB-5 capital and project-related failures are the main reasons why USCIS rejects I-526 filings, Mr. Kuck said, “The most common reasons you will see is either a source of funds issue or a project filing that was incomplete or did not have the proper supporting documents such as permits, capital stack explanations, etc.” He said that a rejected I-526 “can be refiled but will put you back at the end of the line, but a rejected I-526 with a rejected I-485 will cost you your status and your work authorization. There is no appeal to a court of a rejected I-526, at least not one that will be resolved quickly. Do everything you possibly can to make sure you can trace the legality of the money you are investing.” Mr. Kuck also recommends that his clients “document every aspect of the case and check in with your attorney every six months after entry as a conditional permanent resident to make sure you are on track for a successful removal of conditions.”

Mr. Kuck joined the Politically Georgia radio show to discuss border and immigration legislation being debated, including the Senate bill and other political issues.

Cyrus Mehta has authored a new blog post: How Corner Post Along with the Demise of Chevron Deference Can Open Up Immigration Regulations to Challenges.

Mr. Mehta and Kaitlyn Box have authored a new blog post: Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government.

WR Immigration has published several new blog posts: USCIS Immigration Filing Fees Increase Effective April 1 and Client Alert: USCIS Final Rule for FY 2025 H-1B Cap Registration.

Stephen Yale-Loehr was quoted by Time in How a Dead Border Deal Led to a Trump-Biden Border Duel. He said, “Presidents have a lot of authority when it comes to immigration, because immigration touches on sovereignty and foreign relations. However, any president’s authority is not unlimited.”

Mr. Yale-Loehr co-authored an op-ed in Law360, NY Must Address Urgent Need For Immigration Legal Aid.

Mr. Yale-Loehr was quoted by CNN in Biden Considering New Executive Action to Restrict Asylum at the Border, Sources Say. He said, “President Biden has broad powers under the immigration statute, but they are not unlimited. Section 212(f) of the Immigration and Nationality Act allows a president to suspend the entry of noncitizens who are ‘detrimental to the interests of the United States,’ but that doesn’t mean he can just shut the border to everyone.”

Several Alliance of Business Immigration Lawyers members were listed in Chambers Global Guide 2024:

GLOBAL IMMIGRATION LEGAL NETWORK

Alliance of Business Immigration Lawyers – Band 1

 

FIRMS

GLOBAL: MULTI-JURISDICTIONAL

Kingsley Napley LLP – Band 2

 

CANADA

Corporate Immigration Law Firm – Band 2

Gomberg Dalfen – Band 2

 

UNITED STATES

Klasko Immigration Law Partners, LLP (Immigration: Business – USA – Band 2)

Wolfsdorf Rosenthal LLP (Immigration: Business – USA – Band 3)

Foster LLP (Immigration: Business – USA – Band 4)

Sidley Austin LLP (Immigration: Business – USA – Band 4)

Kurzban, Kurzban, Tetzeli & Pratt (Immigration: Business – USA – Band 4)

 

INDIVIDUALS

Immigration – Canada

Barbara Jo Caruso – Band 1

Seth Dalfen – Band 2

Avi Gomberg – Band 2

 

Immigration: Business – USA

Dagmar Butte – Band 2

H. upsRonald Klasko – Band 1

Charles Kuck – Band 1

Ira Kurzban – Star Individual

Vince Lau – Band 2

Marketa Lindt – Band 1

Robert Loughran – Band 4

Cyrus D. Mehta – Band 1

Angelo Paparelli – Band 1

John Pratt – Band 2

Gregory Siskind – Band 1

William Stock – Band 1

Stephen Yale-Loehr – Band 1

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Government Agency Links

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

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

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

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ABIL Immigration Insider • February 4, 2024

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In this issue:

1. USCIS Announces Registration Period, Instructions, and Updates for FY 2025 H-1B Cap Season – U.S. Citizenship and Immigration Services announced that the initial registration period for the fiscal year 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024.

2. USCIS Issues Final Rule With New Filing Fees – U.S. Citizenship and Immigration Services published a final rule, effective April 1, 2024, to adjust certain immigration and naturalization benefit request fees. The final rule includes fee increases for various categories.

3. USCIS Releases Additional Details About Organizational Accounts – U.S. Citizenship and Immigration Services unveiled additional details about its launch of organizational accounts in February 2024, in time for the fiscal year 2025 H-1B cap season.

4. USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’ – U.S. Citizenship and Immigration Services updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

5. DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights – Noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” The Department of Homeland Security explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.”

6. DHS Extends and Redesignates Syria for TPS, Announces Student Relief – The Department of Homeland Security is extending and redesignating Syria for Temporary Protected Status. DHS also announced Special Student Relief for F-1 nonimmigrant students whose country of citizenship is Syria.

7. USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely – U.S. Citizenship and Immigration Services announced a new process for most applicants, petitioners, and requestors, and their attorneys and accredited representatives, to pay for certain benefit request forms by mail or remotely instead of in person at a field office.

8. DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants – The Department of State has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first.

9. CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program – A new U.S. Customs and Border Protection interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program.

10. DOL Seeks OMB Approval, Comments on O*NET Data Collection Program – The Department of Labor has submitted the O*NET Data Collection Program to the Office of Management and Budget for review and approval. DOL seeks comments on O*NET by February 16, 2024.

11. U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks – Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico.

12. USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations – U.S. Citizenship and Immigration Services plans to launch organizational accounts for non-cap filings and the fiscal year 2025 H-1B cap season.

13. Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2024 with start dates on or before March 31, 2024.

14. February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category – The Department of State’s Visa Bulletin for February 2024 noted that absent legislative action, the non-minister special immigrant program was set to expire on February 2, 2024.

15. USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities – According to a newly released report, U.S. Citizenship and Immigration Services data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver EB-2 petition approvals for individuals engaged in STEM activities.

16. CBP Updates Website, Provides Trusted Traveler Processing Times – In an effort to reduce unscheduled visits to Trusted Traveler Program Enrollment Centers, U.S. Customs and Border Protection has expanded the TTP-related topics on its public website portal.

17. DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations – Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations.

18. ABIL Global: The Netherlands – This article discusses the principle of single nationality in Dutch law and the proportionality test, and how they work in practice.

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 – February 2024

1. USCIS Announces Registration Period, Instructions, and Updates for FY 2025 H-1B Cap Season

U.S. Citizenship and Immigration Services (USCIS) has announced that the initial registration period for the fiscal year 2025 H-1B cap season will open at noon ET on March 6, 2024, and run through noon ET on March 22, 2024. During that period, prospective petitioners and their representatives, if applicable, must use a USCIS online account to register each beneficiary electronically and pay the associated registration fee.

The final rule makes several changes. For example:

  • Instead of selecting by registration, USCIS will select registrations by unique beneficiary. Each unique beneficiary who has a registration submitted on their behalf will be entered into the selection process once, regardless of how many registrations are submitted on their behalf.
  • Start date flexibility will be provided for certain H-1B cap-subject petitions. Filing will be permitted with requested start dates that are after October 1 of the relevant fiscal year.
  • Registrations must include the beneficiary’s valid passport information or valid travel document information, and a beneficiary is prohibited from being registered under more than one passport or travel document. USCIS said the modification to allow for a valid travel document “is intended to narrowly accommodate stateless individuals, refugees, and others who are unable to obtain valid passports, and is directly in response to public comments.”

Details:

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2. USCIS Issues Final Rule With New Filing Fees

U.S. Citizenship and Immigration Services (USCIS) published a final rule, effective April 1, 2024, to adjust certain immigration and naturalization benefit request fees. The final rule includes fee increases for various categories, such as:

  • I-129 H-1B (named beneficiaries), from $460 to $1,080
  • I-129 H-1B (named beneficiaries, small employers and nonprofits), from $460 to $540
  • I-129 L Nonimmigrant Workers, from $460 to $1,385
  • I-129 L Nonimmigrant Workers (small employers and nonprofits), from $460 to $695
  • I-526/526E Immigrant Petition by Standalone Regional Center, from $3,675 to $11,160

Among other things, the final rule also:

  • Imposes a new Asylum Program Fee to be paid by employers who file either a Form I-129, Petition for a Nonimmigrant Worker, Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or Form I-140, Immigrant Petition for Alien Worker. The fee will be $0 for nonprofits; $300 for small employers (defined as firms or individuals having 25 or fewer full-time employees); and $600 for all other filers of Forms I-129 and I-140.
  • Allows for half-price Employment Authorization Document applications for adjustment of status applicants and a reduced fee for adjustment of status applicants under the age of 14 in certain situations; and
  • Implements a standard $50 discount for most online filers. The discount does not apply “in limited circumstances, such as when the form fee is already provided at a substantial discount or USCIS is prohibited by law from charging a full cost recovery level fee.”

Details:

  • USCIS final rule, 89 Fed. Reg. 6194 (Jan. 31, 2024).
  • USCIS FAQ on fee rule (Jan. 31, 2024). The FAQ includes a full list of the revised forms effective April 1, 2024, along with the new fees. USCIS said it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024. During the grace period, USCIS will accept both previous and new editions of certain forms, filed with the correct fee.

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3. USCIS Releases Additional Details About Organizational Accounts

During a public engagement session, U.S. Citizenship and Immigration Services (USCIS) unveiled additional details about its launch of organizational accounts in February 2024, in time for non-cap filings and the fiscal year 2025 H-1B cap season. USCIS noted:

  • A company can designate representatives who will have the authority to review, sign on behalf of the company, and pay (if necessary) the filing fees associated with submissions. Those designated individuals will be deemed as the “Administrators” for the company and will need to either create their own USCIS accounts or leverage their existing ones if they have served as company representatives for H-1B cap registration purposes.
  • For companies, Administrators will have a wide range of account management capabilities, from creating working Groups, inviting other Administrators, Legal Representative Teams, or regular working Group Members to collaborate on projects within the created corporate Group. Administrators are also the only account holders authorized to review, sign, and submit filings on behalf of the organization.

The Alliance of Business Immigration Lawyers (ABIL) recommends that companies contact their ABIL attorney for advice and help with the new platform.

Details:

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4. USCIS May Excuse Untimely Filed Extension of Stay and Change of Status Requests Under ‘Extraordinary Circumstances’

On January 24, 2024, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to provide that USCIS, “in our discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner.”

USCIS said that extraordinary circumstances may include, for example, work slowdowns or stoppages involving a strike, lockout, or other labor dispute, or the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those certifications.

Details:

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5. DHS Announces ‘Streamlined and Expedited’ Deferred Action Process for Noncitizen Workers Who Are Victims of, or Witness, Violations of Labor Rights

On January 13, 2024, the Department of Homeland Security (DHS) announced that noncitizen workers who are victims of, or witnesses to, violations of labor rights can now access a “streamlined and expedited deferred action request process.” DHS explained that deferred action “protects noncitizen workers from threats of immigration-related retaliation from … exploitive employers.”

DHS said that in addition to providing new guidance to labor agencies regarding processes to seek deferred action for certain workers, DHS will also provide for a single intake point for deferred action requests from noncitizen workers that are supported by labor enforcement agencies. In addition to satisfying individual criteria to facilitate case-by-case determinations, DHS said, requests for deferred action submitted through this centralized process “must include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction.”

Discretionary grants of deferred action under this process will typically last for two years, DHS said. Those granted deferred action may be eligible for work authorization if they can demonstrate an economic necessity for employment. They may also be eligible for subsequent grants of deferred action “if a labor agency has a continuing investigative or enforcement interest in the matter identified in their original letter supporting DHS use of prosecutorial discretion,” DHS said.

Details:

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6. DHS Extends and Redesignates Syria for TPS, Announces Student Relief

The Department of Homeland Security (DHS) is extending and redesignating Syria for Temporary Protected Status (TPS).

DHS also announced Special Student Relief for F-1 nonimmigrant students from Syria. DHS said this will enable eligible students to request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain F-1 status through the TPS designation period.

Below are highlights of the extension and redesignation.

Extension. TPS will be extended for Syria for 18 months, beginning on April 1, 2024, and ending on September 30, 2025. DHS said this extension allows existing TPS beneficiaries to retain TPS through September 30, 2025, if they otherwise continue to meet the eligibility requirements for TPS. Existing TPS beneficiaries who wish to extend their status through September 30, 2025, must re-register during the 60-day re-registration period, which will begin on the date the notice is published in the Federal Register (expected to be January 29, 2024), and run for 60 days.

Redesignation. DHS is also redesignating Syria for TPS. The agency explained that the redesignation allows additional Syrian nationals (and individuals having no nationality who last habitually resided in Syria) who have been continuously residing in the United States since January 25, 2024, to apply for TPS for the first time during the initial registration period, which will begin on the date the notice is published in the Federal Register (expected to be January 29, 2024), and will remain in effect through September 30, 2025. In addition to demonstrating continuous residence in the United States since January 25, 2024, 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 April 1, 2024.

DHS said, “It is important for re-registrants to timely re-register during the re-registration period and not to wait until their Employment Authorization Documents (EADs) expire, as delaying reregistration could result in gaps in their employment authorization documentation.”

Details:

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7. USCIS Announces New Process for Paying for Certain Benefit Requests by Mail or Remotely

On January 26, 2024, U.S. Citizenship and Immigration Services (USCIS) announced a new process for most applicants, petitioners, requestors, and their attorneys and accredited representatives to pay for certain benefit request forms by mail or remotely instead of in person at a field office. Under the new process, applicants may mail either a check or Form G-1450, Authorization for Credit Card Transactions, to the field office with their benefit request.

In addition, USCIS said, attorneys and accredited representatives now can process payments for EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer, through a link in the email they receive or via text from the USCIS Contact Center. Once such a payment has been processed, attorneys and accredited representatives must mail their client’s EOIR-29; their EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals; and their Pay.gov receipt to the field office.

An exception to the new process is emergency advance parole (EAP) requests, USCIS said. Applicants submitting Form I-131, Application for Travel Document, with an EAP request must still make an appointment with the USCIS Contact Center, apply in person with their package (completed form and supporting documentation), and pay the application fee (if applicable) by credit card with Form G-1450 or check at the field office.

Details:

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8. DOS Provides Guidance, FAQs on Domestic Renewal of H-1B Visas for Certain Applicants

The Department of State (DOS) has released guidance and frequently asked questions on its new pilot program to resume domestic visa renewals for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29, 2024, through April 1, 2024, or when all 20,000 application slots are filled, whichever comes first.

DOS said it will make available a maximum of 20,000 application slots during this pilot program. Approximately 2,000 per week will be for applicants whose most recent H-1B visa was issued by U.S. Mission Canada with an issuance date of January 1, 2020, through April 1, 2023, and approximately 2,000 per week will be for applicants whose most recent H-1B visa was issued by U.S. Mission India with an issuance date of February 1, 2021, through September 30, 2021.

Participation in the pilot program is voluntary. DOS said that individuals who do not meet the requirements for participation in the pilot program, or those who choose not to participate in the pilot program, may continue to apply for visa renewal at a U.S. embassy or consulate overseas.

Details:

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9. CBP Publishes Interim Final Rule Requiring Electronic Travel Authorization Before Traveling to Guam or CNMI and Establishing a New Travel Authorization Program

A new U.S. Customs and Border Protection (CBP) interim final rule, effective September 30, 2024, requires persons intending to travel to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) under the Guam-CNMI Visa Waiver Program (G-CNMI VWP) to submit Form I-736 electronically before traveling and receive an electronic travel authorization before embarking on a carrier for travel to Guam or the CNMI. The rule also establishes the CNMI Economic Vitality & Security Travel Authorization Program (EVS-TAP) as a restricted sub-program of the G-CNMI VWP.

CBP said that the CNMI EVS-TAP is being established based on consultations between the United States and the CNMI under the Covenant to Establish the Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Once implemented, EVS-TAP will allow prescreened nationals of the People’s Republic of China to travel to the CNMI without a visa under specified conditions.

Comments must be received by March 18, 2024, using the method set forth in the interim final rule.

Details:

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10. DOL Seeks OMB Approval, Comments on O*NET Data Collection Program

The Department of Labor (DOL) has submitted the O*NET Data Collection Program to the Office of Management and Budget (OMB) for review and approval.

DOL said that O*NET is “an ongoing effort to collect and maintain current information on the detailed characteristics of occupations and skills for more than 900 occupations. The resulting database provides the most comprehensive standardized source of occupational and skills information in the nation.”

OMB will consider all written comments that the agency receives by February 16, 2024.

Details:

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11. U.S., Mexican Officials Meet in Washington, DC, to Continue Migration Talks

Top officials from the United States and Mexico met in Washington, DC, on January 19, 2024, to continue their discussion and cooperation on efforts to reduce the flow of migrants heading to the United States from Mexico, which has fallen since the start of 2024, due in part to Mexico’s resumption of enforcement efforts that had been paused. According to reports, the discussion included a variety of topics, and no major announcements resulted.

After a visit by U.S. officials to Mexico in late December, the two countries issued a joint communique reaffirming their mutual commitment to “orderly, humane and regular migration.” Topics discussed included addressing the root causes of migration; initiatives for Cubans, Haitians, Nicaraguans, and Venezuelans; enhanced efforts to disrupt human smuggling and trafficking; and promoting legal migration pathways. Also discussed were bilateral trade and the benefit of regularizing the situation of long-term undocumented Hispanic migrants and Deferred Action for Childhood Arrivals recipients. The new meeting in January was a continuation of those discussions.

Details:

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12. USCIS to Launch Organizational Accounts, Enabling ‘Online Collaboration’ and Submission of H-1B Registrations

U.S. Citizenship and Immigration Services (USCIS) plans to launch organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. Organizational accounts “will allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations, Form I-129, Petition for a Nonimmigrant Worker, and associated Form I-907, Request for Premium Processing Service,” USCIS said. The agency also plans to introduce online filing for I-129 H-1B petitions and H-1B I-907 premium processing service.

USCIS expects to launch the organizational accounts in February 2024, with online filing of Forms I-129 and I-907 following shortly thereafter. USCIS will transition the paper filing location for Forms I-129 and I-907 from service centers to the USCIS lockbox.

Details:

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13. Cap Reached for Additional Returning Worker H-2B Visas for First Half of FY 2024

On January 12, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2024 with start dates on or before March 31, 2024, under the
H-2B supplemental cap temporary final rule. USCIS said January 9, 2024, was the final receipt date for petitions requesting supplemental H-2B visas under the FY 2024 first half returning worker allocation.

USCIS said it is still accepting petitions for H-2B nonimmigrant workers with start dates on or before March 31, 2024, for the additional 20,000 visas allotted for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation), as well as those who are exempt from the congressionally mandated cap.

USCIS encouraged petitioners with start dates on or before March 31, 2024, whose workers were not accepted for the 20,716 returning worker allocation, to file under the country-specific allocation while visas remain available. As of January 12, 2024, USCIS said it has received petitions requesting 4,500 workers under the 20,000 visas set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

Details:

  • USCIS alert (Jan. 12, 2024).

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14. February Visa Bulletin Notes Expiration of EB-4 Religious Workers Category

The Department of State’s Visa Bulletin for February 2024 noted that absent legislative action, the non-minister special immigrant program was set to expire on February 2, 2024. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight February 1, 2024. Visas issued before that date were valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must have been admitted into the United States no later than midnight February 1, 2024, the bulletin said.

The bulletin noted that if there were no legislative action extending the category beyond February 2, 2023, “the category will immediately become ‘Unavailable’ as of February 2, 2023. In the event there is legislative action extending the category beyond February 2, the published dates will continue to be in effect for the remainder of February.”

Details:

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15. USCIS Data Show Increase in O-1A and NIW EB-2 Approvals for STEM Activities

According to a newly released report, U.S. Citizenship and Immigration Services (USCIS) data show a sizable overall increase in O-1A petition approvals for individuals engaged in science, technology, engineering, and mathematics (STEM) activities and in National Interest Waiver (NIW) EB-2 petition approvals for individuals engaged in STEM activities, compared to fiscal year 2021, before USCIS issued new policy guidance in January 2022. USCIS noted:

  • From FY 2021 to FY 2022, total receipts of Form I-140, Immigrant Petition for Alien Workers, with and without waivers (combined) increased by 20 percent, from 70,600 to 84,470. Receipts continued to increase by another 10 percent from FY 2022 to FY 2023. Approvals increased by 60 percent from 57,810 in FY 2021 to 92,280 in FY 2022, but decreased about 12 percent from 92,280 in FY 2022 to 81,380 in FY 2023. The approval rate remained at 90 percent or above throughout FY 2018-FY 2023. Total EB-2 receipts in STEM job categories decreased by almost 13 percent, from 61,790 in FY 2022 to 53,960 in FY 2023. Receipts in non-STEM job categories increased by 28 percent during that time.
  • An increasing number of EB-2 petitioners are requesting NIWs, USCIS said. The number of petitions with NIW requests almost doubled, from 21,990 in FY 2022 to 39,810 in FY 2023; the number of petitions without NIW requests dropped from 62,490 to 53,200.
  • From FY 2021 to FY 2022, total receipts of Form I-129 for O-1A petitioners increased 29 percent, from 7,710 to 9,970. They continued to increase slightly from 9,970 in FY 2022 to 10,010 in FY 2023 (see Figure 4). Approvals followed a similar trend by increasing by 25 percent from FY 2021 to FY 2022, from 7,320 to 9,120. They continued to increase slightly from 9,120 in FY 2022 to 9,490 in FY 2023. The approval rate remained stable at 90 percent or above throughout FY 2018-FY 2023.
  • From FY 2021 to FY 2022, total approvals of STEM-related O-1A Form I-129 petitions increased 29 percent, from 3,550 to 4,570. From FY 2022 to FY 2023, approvals remained almost the same, from 4,570 to 4,560. Approvals of non-STEM-related petitions followed a similar trend increasing 21 percent, from 3,410 in FY 2021 to 4,140 in FY 2022. Approvals increased slightly from 4,140 in FY 2022 to 4,380 in FY 2023.

The January 2022 policy guidance clarified how certain professionals in STEM fields can demonstrate eligibility for (a) the NIW in employment-based immigrant status (EB-2), along with the significance of letters from governmental and quasi-governmental entities, and (b) nonimmigrant status for individuals of extraordinary ability (O-1A).

Details:

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16. CBP Updates Website, Provides Trusted Traveler Processing Times

In an effort to reduce unscheduled visits to Trusted Traveler Program (TTP) Enrollment Centers, U.S. Customs and Border Protection (CBP) has expanded the TTP-related topics on its public website portal to include the ability to select the option “update documents in my account.”

CBP also noted that processing times vary by applicant, but on average applicants can expect these timeframes:

  • Global Entry: 4-6 months
  • NEXUS: 12-14 months
  • SENTRI: 10-12 months
  • FAST: 1-2 weeks

CBP said applicants should check the Trusted Traveler Program website periodically for updates or the status of their applications. Additionally, CBP noted that those who submit renewal applications before their membership expires can continue to use the benefits after the membership expiration date.

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17. DOL Increases Civil Monetary Penalties for Certain Immigration-Related Employer Violations

Effective January 15, 2024, as part of annual inflation adjustments, the Department of Labor (DOL) is increasing D-1, H-1B, H-2A, and H-2B civil monetary penalties it assesses or enforces for employer violations.

To compute the 2024 annual adjustment, DOL multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.03241, and rounded to the nearest dollar.

Details:

  • DOL final rule, 89 Fed. Reg. 1810 (Jan. 11, 2024).

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18. ABIL Global: The Netherlands

This article discusses the principle of single nationality in Dutch law and the proportionality test, and how they work in practice.

One solid principle of Dutch nationality law is that dual nationality must be avoided. As a result of the Tjebbes ruling by the European Union (EU) Court of Justice, this principle is mitigated by a proportionality test for cases of automatic loss of Dutch nationality. A provision to this effect was introduced in the Netherlands Nationality Act (NNA) on April 1, 2022.

The most frequent cases of automatic loss of Dutch citizenship result from:

  1. Voluntary acquisition of another nationality; or
  2. Prolonged stay abroad in the possession of two (or more) nationalities.

There are exemptions. For example, acquiring a second nationality does not lead to loss of Dutch nationality if one is married to a person of the new nationality. Nevertheless, these cases occur frequently, and for many of the affected individuals, it is not so much the fact of losing Dutch nationality but rather the automatic character of the loss that strikes the most. It happens by act of law; a decision by a Dutch authority to revoke the nationality is not necessary. The victim often only finds out that they are not Dutch anymore when they try to renew their Dutch passport.

 

 

The Tjebbes Ruling

As of April 1, 2022, a new provision was included in the NNA following the Tjebbes ruling by the EU Court of Justice of March 12, 2019. Through a new subcategory of the “option procedure,” this group of persons can request to regain their Dutch citizenship. The option procedure is, next to naturalization, a way to request Dutch nationality, in particular for persons of Dutch descent and former Dutch nationals. By submitting an option request based on the new provision, a proportionality test can be requested. The test examines whether the loss of Dutch citizenship was in effect disproportionate.

This criterion was applied in the Tjebbes ruling, in which the EU Court mentioned several circumstances that may be weighed in the proportionality test, mainly related to the person’s rights of free movement and residence in the EU territory and whether these have been lost due to the loss of nationality.

Nationality law is increasingly influenced by EU law. This has softened somewhat the strictness of the Dutch law in avoiding dual nationality. Former Dutch nationals now have a formal remedy against disproportionality of the loss of their nationality.

In practice, the standard to meet is high. Case law will determine how effective this proportionality test will turn out to be.

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New Publications and Items of Interest

DHS session on fee changes. The Department of Homeland Security will hold a virtual public engagement session on changes to immigration benefit fees made by a final rule. The session will be held at 2 p.m. ET on February 22, 2024. To register, input your email address at https://public.govdelivery.com/accounts/USDHSCIS/subscriber/new?topic_id=USDHSCIS_1081.

USCIS webinar on H-1B electronic registration process. U.S. Citizenship and Immigration Services will present a webinar on the fiscal year 2025 H-1B electronic registration process on Wednesday, February 21, 2024, from 2 to 3:30 p.m. ET. The webinar will include updates on changes to the process, a step-by-step overview of how to submit an H-1B registration, and a Q&A session.

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:

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ABIL Member / Firm News

Charles Foster, of Foster LLP, recently discussed federal and state immigration policies at the U.S. southern border on C-SPAN’s Washington Journal broadcast.

Fredrikson’s Immigration Group will host a discussion, New Developments and Trends in Immigration Law and Preparing for the Upcoming H-1B Lottery Season, on Thursday, February 15, 2024, at 12 p.m. CT on preparing for the upcoming H-1B lottery season and new developments and trends in business immigration. Presenters will discuss FY 2025 H-1B cap season preparation, the status of proposed immigration legislation and regulations, and agency processing and adjudication updates.

Klasko Immigration Law Partners, LLP, has published a new blog post: USCIS to Launch Organizational Accounts Mid-February.

Cyrus Mehta has authored a new blog post: CSPA Disharmony: USCIS Allows Child’s Age To Be Protected Under the Date for Filing While DOS Allows Child’s Age To Be Protected Under the Final Action Date.

Mr. Mehta and Kaitlyn Box have authored several new blog posts: Musings on Brand X As a Force for Good Ahead of the Supreme Court Ruling on Chevron Deference and USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour.

Angelo Paparelli has authored a new blog post: Worrisome Waiting: How Will USCIS “Modernize” the
H-1B Visa Program?

Siskind Susser, P.C., announced that “Gen,” a generative artificial intelligence project on which colleagues at the firm have been working, is launching on January 16, 2024. A collaboration between Visalaw.ai and the American Immigration Lawyers Association, Gen is powered by OpenAI’s GPT4 large language model. According to Siskind Susser, it has 100,000+ pages of immigration law documents, treatises, and data sets and can answer most immigration law questions, and provide citations and links to the documents it uses to create the answers. Unlike ChatGPT, the answers are derived only from Siskind Susser’s law library, and lawyers can check the original source material to ensure the accuracy of the answers provided. Gen also allows lawyers to upload their own documents. Aside from answering questions, Gen will draft petition letters, memos, RFE responses, checklists, questionnaire forms, and many other kinds of documents. It also can summarize and translate documents. To join the waiting list for Gen, go to www.visalaw.ai.

Siskind Susser, P.C., announced that Jason Susser was promoted to Partner. Siskind Susser said that Mr. Susser is a leader in managing immigration matters for founders of technology startup companies. He authored the book, “Immigration for Startups: A Guide for Founders,” and is an immigration advisor to several of the country’s top business schools and startup accelerators. He has become a “go-to immigration lawyer for entrepreneurs in Silicon Valley.” Mr. Susser is also an entrepreneur and is a founder of Visalaw Ventures, a technology company spun off from Siskind Susser.

Stephen Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: Can Joe Biden ‘Shut Down the Border’ on His Own? “Closing the border arguably would violate” domestic and international asylum laws,” he said.

Mr. Yale-Loehr was quoted by the Los Angeles Times in A Decade-Old Scalia Dissent Is Now Driving the Texas-Biden Dispute Over Illegal Immigration. Referring to new Texas law SB4, which the article notes “would authorize Texas police and state judges to arrest, detain and deport migrants who are suspected of crossing the border illegally,” Mr. Yale-Loehr said, “This is a frontal assault on the federal primacy in immigration enforcement, and it’s definitely going to the Supreme Court.”

Mr. Yale-Loehr was quoted by the Chicago Tribune in No Help: The Federal Immigration Deal Won’t Fix the Migrant Crisis in Chicago—and It’s Unlikely to Pass Congress Anyway. “When migrants enter the United States at the border, they have ‘credible fear interviews’ lasting up to 10 to 20 minutes with immigration authorities,” he said. Mr. Yale-Loehr also noted that proposed legislation recommends raising the bar for asylum eligibility, which means there could be more expedited removals after migrants’ credible fear interviews. “That may reduce the number of asylum-seekers in Chicago because they’re deemed not even to be eligible to apply for asylum at the border.”. He also noted that migrants don’t often understand nuanced changes in immigration policy: “People who are fleeing likely don’t read the New York Times. They are going to come no matter what the law is or how Congress changes.”

Mr. Yale-Loehr was quoted by the Economist in America’s Immigration Policies Are Failing: A New Surge of Migration is Straining a Broken System and Might Cost Joe Biden the Election (available by subscription). The article notes that the immense wait for a court hearing, low chance of detention, and the prospect of work in the United States encourage migrants with a weak claim to cross the border and claim asylum. Prioritizing the most recent arrivals’ cases would reduce this incentive, Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by the Boston Globe in Biden Has Been Giving Millions of Migrants False Hope; Desperate People Have Been Allowed Into the Country While They Apply for the Right to Stay, But Such Permission is Very Difficult to Obtain. He said that many migrants may “lose [their case for] asylum, either because they don’t have an attorney to represent them or they don’t have a strong case on the merits.” Coming from countries with difficult political circumstances isn’t enough to support an asylum claim, the article notes—asylum is granted based on persecution due to race, religion, nationality, membership in a particular social group, or political opinion. “It’s very hard to show that the persecution is well-founded based on one of those five characteristics,” he explained. In the meantime, the article suggests, a large number of migrants live in uncertainty. “That’s bad for our legal system, it’s bad for our economy, and it’s also bad for the migrants themselves,” Mr. Yale-Loehr said. The article also quotes from a recent paper Mr. Yale-Loehr co-authored that calls for expanding other legal pathways to the United States for migrants beyond asylum. “We cannot cut off all avenues to asylum, but we also cannot continue to accept applications from all who arrive, especially those with highly unlikely claims,” the paper says. Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now.

Mr. Yale-Loehr was quoted by the Chronicle of Higher Education in Why a Court Challenge to an Obscure Fisheries Regulation Could Upend Student Visa Policy (available by registration). The article discusses a pending Supreme Court case that may have implications for international students and institutions of higher education. He said, “Colleges and universities may think cases involving fisheries regulation have nothing to do with them, but what the Court decides will affect them one way or another.” He said the Supreme Court’s decision could have an impact on international-student policy in several ways: it could put any current legal challenges on hold until the fisheries cases are decided; it could change the federal government’s approach to rulemaking in progress, such as updates to the skilled worker visa program that affect both international students and foreign workers hired by colleges and universities; and if a new standard were applied retroactively, that would allow past policy disputes, like those affecting optional practical training, to be revisited in the courts.

Mr. Yale-Loehr was quoted by the New York Times in Lawyer and Son Ensnared Hundreds of Immigrants in Fraud Scheme (available by subscription). The article discusses a case in which, according to prosecutors, a lawyer and his son advised clients seeking green cards to sign petitions under the Violence Against Women Act (VAWA), which enables undocumented immigrants who are victims of abuse to gain lawful permanent residence in the United States. Mr. Yale-Loehr said he had never heard of someone using VAWA to conduct immigration fraud, but such fraud can be hard to root out. “If it sounds too good to be true, it probably is. If someone says, ‘I can guarantee you a green card if you just sign here,’ that’s a sure sign that something is funny.”

Mr. Yale-Loehr was quoted by CBS News in Biden Administration Has Admitted More Than 1 Million Migrants Into U.S. Under Parole Policy Congress is Considering Restricting. If Congress restricts parole, it would curtail a key presidential power, he said. “Every administration, Republican and Democratic, has used parole because in an emergency, like the Mariel boatlift or the Hungarian Revolution, you want to have something that allows you to bring in large groups of people to get them out of harm’s way. Every administration wants to have maximum flexibility and anything that the Republicans do to require restrictions on parole will hamper any future administration.”

Mr. Yale-Loehr was quoted by the Daily Caller in Biden And Abbott Have Set the Stage for One of the Biggest State-Versus-Feds Immigration Fights in More Than a Decade. The article discusses Texas’s challenge to the role historically played by the federal government in immigration law enforcement and a related complaint filed by the Biden administration in the Supreme Court accusing Texas of overstepping its authority with anti-immigration measures. The Supreme Court previously ruled in favor of the federal government in an Arizona case, but it’s not clear whether the same will be true in the Texas case. “The question is now that we’ve got three different justices on the Supreme Court than were on the court on the Arizona case, will the current Supreme Court rule the same way? I suspect that Texas is hoping that with more conservative justices on the Supreme Court now, they might be able to come out with a different result than Arizona,” Mr. Yale-Loehr said.

Mr. Yale-Loehr announced a webinar, Immigration Slavery in America: A True Story of Forced Labor and Liberation, to be held Tuesday, February 6, 2024, at 2 p.m. ET. Mr. Yale-Loehr will moderate a discussion with author Saket Soni and panelists about Mr. Soni’s book, The Great Escape. The book tells the story of a group of immigrants trapped in the largest human trafficking scheme in modern U.S. history. The webinar is co-sponsored by the Cornell Migrations Initiative and Cornell Law School’s Migration and Human Rights Program.

Mr. Yale-Loehr co-authored Is Chevron Dead? Thoughts After Oral Arguments in Relentless, Inc. and Loper Bright Enterprises, published by Think Immigration.

Mr. Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: What Branch of Government is ‘Really’ Responsible for the crisis at the border? He said, “Each of the three branches of government has a role to play in immigration law and policy, and each has failed. The result: a quagmire, where nothing gets resolved and matters get worse every day. Every branch of government is to blame.” For example, the courts have ruled both with and against the executive branch under both Republican and Democratic administrations, Mr. Yale-Loehr said. “Thus, people don’t know how courts will rule, which reduces predictability. Moreover, litigation takes time, and is not a good way to manage immigration law and policy.” https://www.politifact.com/article/2024/jan/17/ask-politifact-what-branch-of-government-is-really/

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Government Agency Links

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

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

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

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ABIL Immigration Insider • January 7, 2024

/in /by

In this issue:

1. USCIS Issues Guidance on ‘Ability to Pay’ Requirement When Adjustment Applicants Change Employers – U.S. Citizenship and Immigration Services issued policy guidance, effective immediately, on how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker changes employers.

2. DOJ Sues Texas Over State Migration Bill – The Department of Justice sued the state of Texas over a bill that would create new state crimes tied to federal prohibitions on unlawful entry and reentry by noncitizens into the United States.

3. DOS Issues ‘Bright Forecast’ for Worldwide Visa Operations – The Department of State said its visa processing capacity “has recovered faster than projected” and announced a “bright forecast” for worldwide visa operations in 2024.

4. ABIL Global: Canada – The Canadian government is targeting skilled workers and French-speaking candidates in a new category-based selection process.

5. DHS Increases Premium Processing Fees – On February 26, 2024, the Department of Homeland Security will increase premium processing fees charged by U.S. Citizenship and Immigration Services.

6. U.S. and Mexico Release Joint Communique Following Visit to Discuss Migration Management – On December 27, 2023, a U.S. delegation visited Mexican President Andrés Manuel López Obrador and others to discuss migration management.

7. DOS Proposes Supplemental Questionnaire for Passport Applications – The Department of State seeks public comment on a proposed supplemental questionnaire to an existing passport application that would solicit information relating to the respondent’s identity.

8. State Dept. Announces Pilot Program to Resume Domestic H-1B Nonimmigrant Visa Renewals – The pilot program will accept applications from January 29 to April 1, 2024.

9. OFLC Reminds Employers About Deadlines for Peak H-2B Filing Season – The federal Department of Labor announced that from January 2-4, 2024, it will accept H-2B applications for temporary nonprofessional workers requesting a start date of April 1, 2024, or later.

10. USCIS Updates Policy Guidance for International Students – U.S. Citizenship and Immigration Services issued policy guidance regarding the F and M student nonimmigrant classifications, including the agency’s role in adjudicating related applications for employment authorization, change of status, extension of stay, and reinstatement of status.

11. State Dept. Expands Consular Authority for Nonimmigrant Visa Interview Waivers – The Department of State has determined that several categories of interview waivers are in the national interest. As of January 1, 2024, consular officers will have discretion to waive the in-person interview for those categories.

12. State Dept. Advises on Passport Processing – Passport processing times have returned to the agency’s pre-pandemic norm, the Department of State said. Passport applications will be processed within 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service. Processing times do not include mailing.

13. Detained Workers Are Employees Due Minimum Wage in Private Facility Contracted With ICE, Supreme Court of Washington Finds – Detained workers at the private detention center were “employees” and therefore were due at least the minimum wage, the Supreme Court of Washington held.

14. USCIS Reaches FY 2024 H-1B Cap – U.S. Citizenship and Immigration Services has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year 2024.

15. DHS Publishes Federal Register Notice Reiterating Extensions of TPS Re-Registration Periods for Several Countries – The Department of Homeland Security published a Federal Register notice reiterating extensions of the periods to re-register for Temporary Protected Status under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

16. District Court Rules in College’s Favor in EB-1 Case – In Scripps College v. Jaddou, a U.S. District Court in Nebraska held that U.S. Citizenship and Immigration Services improperly denied the plaintiff’s I-140 immigration petition when it found that the beneficiary of the petition did not qualify for an employment-based first preference visa as an “outstanding professor or researcher.”

17. ETA Seeks Information on STEM and Non-STEM Occupations in PERM Schedule A – The Department of Labor’s Employment and Training Administration is seeking information from the public to potentially consider revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics (STEM), including Artificial Intelligence-related occupations, and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers.

18. ETA Announces Adverse Effect Wage Rates for H-2A Workers in 2024 – The Employment and Training Administration has announced Adverse Effect Wage Rates for H-2A workers in 2024, for range (herding or production of livestock) and non-range (agricultural labor or services other than the herding or production of livestock) occupations.

19. January Visa Bulletin Released; Religious Workers Category Extended – The Department of State’s Visa Bulletin for January 2024 notes that a stopgap funding bill recently passed by Congress extended the employment fourth preference Certain Religious Workers (SR) category until February 2, 2024.

20. USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140 – U.S. Citizenship and Immigration Services has begun transitioning the filing location for Form I-907, Request for Premium Processing, when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the service centers to appropriate USCIS lockboxes.

21. OFLC Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment – The Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator has determined that current requirements for labor supply states will remain in effect, with one modification: OFLC will no longer recognize North Carolina and Texas as traditional labor supply states for the state of Michigan.

22. USCIS Releases Employment-Based Adjustment of Status FAQs – U.S. Citizenship and Immigration Services released frequently asked questions about employment-based adjustment of status.

23. State Dept. Issues Final Rule to Eliminate Informal Evaluations of Immigrant Visa Applicants’ Family Members – Effective January 8, 2024, the Department of State is amending its immigrant visa regulations by removing the section allowing a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility.

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 – January 2024

1. USCIS Issues Guidance on ‘Ability to Pay’ Requirement When Adjustment Applicants Change Employers

On January 5, 2024, U.S. Citizenship and Immigration Services issued policy guidance, effective immediately, on how it analyzes an employer’s ability to pay the proffered wage for immigrant petitions in certain first, second, and third preference employment-based immigrant visa classifications, including instances when the sponsored worker changes employers.

The guidance notes that generally, employers seeking to classify prospective or current employees under the first, second, and third preference employment-based immigrant visa classifications that require a job offer “must demonstrate their continuing ability to pay the proffered wage to the beneficiary as of the priority date of the immigrant petition until the beneficiary obtains lawful permanent residence.”

The updated guidance, which applies to petitions filed on or after January 5, 2024, explains that when the beneficiary of a Form I-140, Immigrant Petition for Alien Workers, moves (or “ports”) to a new employer while the Form I-140 is pending, USCIS determines whether the petitioner meets the ability to pay requirements “only by reviewing the facts in existence from the priority date until the filing of the Form I-140.”

Details:

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2. DOJ Sues Texas Over State Migration Bill

The Department of Justice (DOJ) sued the state of Texas on January 3, 2024, regarding a new Texas law known as Senate Bill 4 (SB4). The bill would create, effective March 5, 2024, new state crimes tied to federal prohibitions on unlawful entry and reentry by noncitizens into the United States and would authorize state judges to order the removal of certain noncitizens. It would allow Texas law enforcement officers to arrest those suspected of being in the United States without authorization.

Noting that “Texas cannot run its own immigration system,” the DOJ’s complaint states that in addition to violating the U.S. Constitution, which tasks the federal government with regulating immigration and controlling the international borders, SB4 also would “intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

On the same day the suit was filed, Gov. Abbott posted, “Biden sued me today because I signed a law making it illegal for an illegal immigrant to enter or attempt to enter Texas directly from a foreign nation. I like my chances. Texas is the only government in America trying to stop illegal immigration.”

Several civil rights groups, including the American Civil Liberties Union and the Texas Civil Rights Project, filed a separate lawsuit in December 2023 challenging the constitutionality of SB4.

Details:

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3. DOS Issues ‘Bright Forecast’ for Worldwide Visa Operations

On January 2, 2024, the Department of State (DOS) announced a “bright forecast” for worldwide visa operations. DOS said its visa processing capacity “has recovered faster than projected. We issued more nonimmigrant visas (NIVs) worldwide in 2023 than in any year since 2015.”

DOS said it remains focused on “reducing wait times for visitor visa applicants who require an in-person interview, particularly in countries where demand remains at unprecedented levels.” Its goal is for more than 90 percent of its overseas posts to have visitor visa interview wait times under 90 days in 2024.

DOS noted that its 230 U.S. embassies and consulates issued more than 10.4 million visas globally in fiscal year 2023. The agency attributed its progress in part to improved efficiency through interview waivers in several key visa categories, including for many students and temporary workers. Additionally, DOS said, applicants renewing nonimmigrant visas in the same classification within 48 months of the prior visa’s expiration date can apply without an in-person interview in their countries of nationality or residence. “This continues to be one of our best tools to reduce interview appointment wait times while continuing to make rigorous national security decisions in every case,” DOS said.

In 2023, DOS said, it (1) prioritized student and academic exchange visitor visa interviews to facilitate study at U.S. universities and colleges; (2) processed seasonal agricultural and nonagricultural worker visas, issuing a “record-breaking 442,000 visas to H-2A and H-2B temporary workers in 2023, with nearly 90 percent going to qualified workers from Mexico, El Salvador, Guatemala, and Honduras”; (3) issued a “record-breaking 365,000 nonimmigrant visas to airline and shipping crewmembers”; and (4) issued 590,000 nonimmigrant and immigrant visas, “the most ever,” to high-skilled workers and executives in a range of sectors, including emerging technology and health care. “Among those, we issued nearly double the number of EB-3 [green cards] in FY 2023 than in FY 2019, the last full year before the pandemic.” DOS also issued all the available diversity green card lottery visas during the DV-2023 program year.

Details:

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4. ABIL Global: Canada

The Canadian government is targeting skilled workers and French-speaking candidates in a new category-based selection process.

In a marked departure from its points-based immigration program selection system, the Honourable Sean Fraser, then-Minister of Immigration, Refugees and Citizenship, announced on May 31, 2023, the launch of a new measure of category-based selection for Canada’s Express Entry management system to respond to Canada’s changing economic and labor market needs, with an additional focus on Francophone immigration. This measure allows Immigration, Refugees and Citizenship Canada (IRCC) to issue invitations to apply to candidates who hold specific skills, training, or language abilities. For 2023, category-based selection invitations will target candidates who have a strong French language proficiency or work experience in the fields of health care; science, technology, engineering, and mathematics (STEM) professions; trades, such as carpenters, plumbers, and contractors; transport; agriculture; and agri-food. As of January 2024, this list of categories is subject to change.

Express Entry is the system used by IRCC to manage skilled workers seeking to become Canadian Permanent Residents through the Federal Skilled Worker Program, the Federal Skilled Trades Program, the Canadian Experience Class, and a portion of the Provincial Nominee Program. Candidates are ranked according to a Comprehensive Ranking System (CRS), which is a points-based system that ranks candidates based on factors such as their education, language skills, work experience, and age. IRCC then periodically invites applicants with the highest scores to apply for permanent residence.

Among other category-based draws that began on June 28, 2023, IRCC issued invitations to apply in the following categories:

  • On July 12, 2023, IRCC issued 3,800 invitations to apply to candidates with French language proficiency with a minimum CRS score of 375.
  • On September 28, 2023, IRCC held a targeted draw in the agriculture and agri-food occupations, inviting 600 applicants with a minimum CRS score of 354.
  • On October 26, 2023, IRCC issued 3,600 invitations to apply to candidates in health care occupations with a minimum CRS score of 431.

In 2023, before the first targeted draw, the lowest CRS score was recorded at 481 points for candidates in an all-program draw.

Following the announcement and the beginning of targeted draws, the CRS cut-off decreased significantly for Express Entry candidates within the five targeted categories. However, since the first targeted draw at the end of June 2023, the lowest invitations for an all-program draw were issued to candidates with a minimum CRS score of 496. Thus, the CRS cut-off score has increased for profiles not included in the list of targeted occupations. In addition, the introduction of category-based selection has significantly diminished the number of invitations sent out to Express Entry profiles in the all-program draws.

The Canadian Government seeks to welcome 110,770 and 117,500 skilled workers in 2024 and 2025, respectively, through the Federal Skilled Worker Program, the Federal Skilled Trades Program, and the Canadian Experience Class. The Provincial Nominee Program will account for an additional 110,000 Canadian permanent residents in 2024, and 120,000 in 2025.

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5. DHS Increases Premium Processing Fees

On February 26, 2024, the Department of Homeland Security will increase premium processing fees charged by U.S. Citizenship and Immigration Services (USCIS):

  • From $1,500 to $1,685, for Form I-129, Petition for a Nonimmigrant Worker, for H-2B and R-1 nonimmigrant status, and Form I-765, Application for Employment Authorization, for certain F-1 students
  • From $1,750 to $1,965, for Form I-539. Application to Extend/Change Nonimmigrant Status, for F-1, F-2, M-1, M-2, J-1, J-2, E-1, E-2, E-3, L-2, H-4, O-3, P-4, and R-2 nonimmigrant status
  • From $2,500 to $2,805, for Form I-140, Immigrant Petition for Alien Workers, for employment-based classifications E11, E12, E21 (non-NIW), E31, E32, EW3, and recently available E13 and E21 (NIW)

A table in the final rule shows that overall, of those eligible for premium processing in fiscal years 2018 through 2022, 57 percent chose to submit a premium processing request:

If USCIS receives a Form I-907 postmarked on or after February 26, 2024, with the incorrect filing fee, it will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx, and DHL), the postmark date is the date reflected on the courier receipt, USCIS said.

Details:

  • USCIS alert (Dec. 27, 2023).
  • USCIS final rule, 88 Fed. Reg. 89539 (Dec. 28, 2023).

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6. U.S. and Mexico Release Joint Communique Following Visit to Discuss Migration Management

On December 27, 2023, a U.S. delegation visited Mexican President Andrés Manuel López Obrador and others to discuss migration management. The U.S. delegation was led by Secretary of State Antony Blinken, Secretary of Homeland Security Alejandro Mayorkas, and White House Homeland Security Advisor Elizabeth Sherwood-Randall.

The two countries reaffirmed their existing commitments on fostering “orderly, humane, and regular migration,” including reinforcing their partnership to address the root causes of migration, and the two countries’ initiative for Cubans, Haitians, Nicaraguans, and Venezuelans. The communique emphasized ongoing cooperation, “to include enhanced efforts to disrupt human smuggling, trafficking, and criminal networks, and continuing the work to promote legal instead of irregular migration pathways.” Both delegations also agreed on the importance of maintaining and facilitating bilateral trade at the U.S.-Mexico border.

Mexican President López Obrador stressed the need to continue investing in ambitious development programs throughout the hemisphere. The delegations also discussed “the benefit of regularizing the situation of long-term undocumented Hispanic migrants and DACA recipients, who are a vital part of the U.S. economy and society.”

The two delegations agreed to meet again in Washington in January 2024.

Details:

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7. DOS Proposes Supplemental Questionnaire for Passport Applications

The Department of State (DOS) has published a 60-day notice seeking public comment on a proposed supplemental questionnaire to an existing passport application that would solicit information relating to the respondent’s identity, including family and birth circumstances, that is needed before passport issuance. If such information on Form DS-5513 is needed, a passport agency will mail the form to the applicant for completion and return, or the applicant can download and complete a fillable PDF version.

DOS will accept comments until February 26, 2024.

Details:

  • DOS notice, 88 Fed. Reg. 89002 (Dec. 26, 2023).

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8. State Dept. Announces Pilot Program to Resume Domestic H-1B Nonimmigrant Visa Renewals

On December 21, 2023, the Department of State (DOS) announced a pilot program to resume domestic visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements. The pilot program will accept applications from January 29 to April 1, 2024.

Participation in the pilot is limited to individuals who have previously submitted fingerprints in connection with an application for a prior non-diplomatic nonimmigrant H-1B visa, are eligible for a waiver of the in-person interview requirement, and meet other applicable requirements. DOS said the goal of the pilot is “to test the Department’s technical and operational ability to resume domestic visa renewals for specific nonimmigrant classifications and to assess the efficacy of this program in reducing worldwide visa wait times by shifting certain workloads from overseas posts to the United States.”

Applicants who meet the requirements can participate during the application window by applying online. Written comments and related materials must be received by midnight April 15, 2024.

Details:

  • DOS notice, 88 Fed. Reg. 88467 (Dec. 21, 2023).

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9. OFLC Reminds Employers About Deadlines for Peak H-2B Filing Season

On December 22, 2023, the Department of Labor’s Office of Foreign Labor Certification (OFLC) reminded employers that the filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting work start dates of April 1, 2024, or later opened on January 2, 2024.

OFLC said it will randomly order for processing all H-2B applications requesting a work start date of April 1, 2024, that were filed during the initial three calendar days (January 2-4, 2024). OFLC warned:

If OFLC identifies multiple applications that appear to have been filed for the same job opportunity, OFLC will issue a Notice of Deficiency. If multiple filings are submitted during the three-day filing window, all applications will receive a Notice of Deficiency requesting that the employer demonstrate that the job opportunities are not the same. Employers that fail to establish a bona fide need for each application will receive a non-acceptance denial for each application.

Details:

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10. USCIS Updates Policy Guidance for International Students

On December 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance regarding F and M nonimmigrant students, including the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status for these students and their dependents in the United States. USCIS said it “expects that this will provide welcome clarity to international students and U.S. educational institutions on a wealth of topics, including eligibility requirements, school transfers, practical training, and on- and off-campus employment.”

For example, USCIS said, the guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but such a student may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate an intent to depart after a temporary period of stay.

In addition, the guidance specifies how an F student seeking an extension of optional practical training based on a degree in a science, technology, engineering, or mathematics field may be employed by a startup company, as long as the employer adheres to the training plan requirements, remains in good standing with E-Verify, and provides compensation commensurate to that provided to similarly situated U.S. workers, among other requirements.

Details:

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11. State Dept. Expands Consular Authority for Nonimmigrant Visa Interview Waivers

On December 21, 2023, the Department of State (DOS) announced that it had consulted with the Department Homeland Security and determined that several categories of interview waivers are in the national interest. As of January 1, 2024, consular officers have discretion to waive the in-person interview for:

  • First time H-2 visa applicants (temporary agricultural and nonagricultural workers) and
  • Other nonimmigrant visa applicants applying for any nonimmigrant visa classification who:
    • Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa; and
    • Are applying within 48 months of their most recent nonimmigrant visa’s expiration date.

Consular officers may still require in-person interviews on a case-by-case basis or because of local conditions. DOS encourages applicants to check embassy and consulate websites.

Details:

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12. State Dept. Advises on Passport Processing

On December 18, 2023, the Department of State (DOS) announced that passport processing times have returned to the agency’s pre-pandemic norm. As of December 18, 2023, DOS said, passport applications will be processed within 6 to 8 weeks for routine service and 2 to 3 weeks for expedited service, which costs an additional $60. Processing times begin when DOS receives an application at a passport agency or center and do not include mailing times.

DOS said that this year, demand for passports was “unprecedented.” Between October 2022 and September 2023, the agency issued more than 24 million passport books and cards, the highest number in U.S. history.

Details:

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13. Detained Workers Are Employees Due Minimum Wage in Private Facility Contracted With ICE, Supreme Court of Washington Finds

The main question in this case before the Supreme Court of the State of Washington concerned a challenge to the detained-worker pay practices of the GEO Group Inc., which owns and operates the Northwest ICE Processing Center (NWIPC), a private immigration detention center in Tacoma, Washington, under a contract with the federal government. The plaintiffs objected to GEO’s practice of paying civil immigration detainees less than Washington state’s minimum wage. Plaintiffs asked the court to determine whether Washington’s Minimum Wage Act (MWA) applies to detained workers in a privately owned and operated detention facility. The court concluded that it does.

GEO contracts with U.S. Immigration and Customs Enforcement (ICE) to confine up to 1,575 noncitizen, noncriminal adults in administrative civil custody as they await review and determination of their immigration status. Under the ICE contract, GEO developed and manages a Voluntary Work Program, the purpose of which is to provide detainees opportunities to work and earn money while confined. The NWIPC detainees “were not to be used to perform” the “core obligations” that, under the ICE contract, were the responsibilities and duties of GEO. However, GEO relied on the detained workers to perform “substantially the core work required of GEO under the contract.” GEO paid its detained workers $1 per day to perform these essential tasks.

The State of Washington and a class of NWIPC detainees sued GEO in September 2017. They alleged that GEO’s practice of paying detainees less than Washington’s minimum wage to work in the detention center violated Washington’s MWA.

The Supreme Court of Washington found that the detained workers at the private detention center were “employees” within the meaning of the MWA. The plaintiffs argued that an exemption indicates that the Washington legislature contemplated the MWA’s application to individuals in detention or custody who are permitted to work. They argued that the exemption unambiguously applies only to individuals detained in public, government-run institutions. Therefore, they said, the exemption does not apply to the detained workers at the privately owned and operated facility. The Supreme Court of Washington agreed.

Details:

  • Nwauzor v. The GEO Group, Inc., No. 101786-3 (Dec. 21, 2023).
  • “CEO Group Must Pay Minimum Wage to Immigrant Detainees, Court Rules,” Reuters (Dec. 22, 2023).

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14. USCIS Reaches FY 2024 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.

USCIS said it will send non-selection notices to registrants through their online accounts. When the agency finishes sending the non-selection notifications, the status for properly submitted registrations that USCIS did not select for the FY 2024 H-1B numerical allocations will show:

  • Not Selected: Not selected—not eligible to file an H-1B cap petition based on this registration.

USCIS said it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

Details:

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15. DHS Publishes Federal Register Notice Reiterating Extensions of TPS Re-Registration Periods for Several Countries

The Department of Homeland Security (DHS) published a Federal Register notice on December 13, 2023, reiterating extensions of the periods to re-register for Temporary Protected Status (TPS) under the existing designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. As previously announced, the re-registration period for each country is changing from 60 days to the full length of each country’s current TPS designation extension. The re-registration extensions are solely for TPS beneficiaries who properly filed for TPS during a previous registration period.

The 18-month re-registration periods for these current TPS beneficiaries, which are currently open, are extended to the following dates:

  • El Salvador, through March 9, 2025
  • Haiti, through August 3, 2024
  • Honduras, through July 5, 2025
  • Nepal, through June 24, 2025
  • Nicaragua, through July 5, 2025
  • Sudan, through April 19, 2025

DHS said that limiting the re-registration period to 60 days “for these particular beneficiaries might place a burden on applicants who cannot timely file, but who otherwise would be eligible to re-register for TPS. In particular, ongoing litigation resulted in overlapping periods of TPS validity that were announced in several Federal Register notices, which may confuse some current beneficiaries. This notice allows beneficiaries of these countries who have not been required to re-register for TPS for the past few years due to litigation to re-register through the entire designation extension period.”

Details:

  • DHS news release (Dec. 13, 2023).
  • S. Citizenship and Immigration Services notice, 88 Fed. Reg. 86665 (Dec. 14, 2023).

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16. District Court Rules in College’s Favor in EB-1 Case

In Scripps College v. Jaddou, a U.S. District Court in Nebraska held that U.S. Citizenship and Immigration Services (USCIS) improperly denied the plaintiff’s I-140 immigration petition when it found that the beneficiary of the petition did not qualify for an employment-based first preference visa as an “outstanding professor or researcher.” The court ruled in favor of the plaintiff, Scripps College.

Scripps argued that USCIS’s denial of its I-140 petition must be reversed because USCIS made internally inconsistent findings, imposed novel evidentiary requirements, disregarded relevant factors, and was not supported by substantial evidence.

Citing various decisions, the court noted that agency action must be upheld on review unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” An agency decision is arbitrary and capricious if the agency acted outside “the bounds of reasoned decision-making, relied on factors which Congress has not intended it to consider, provided an explanation that runs counter to the evidence, or makes a decision that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” the court noted.

Among other things, the court found that USCIS had made inconsistent findings based on the evidence, and made findings that were controverted by the evidence. Further, the court said, the “unexplained internal inconsistencies” reflected that USCIS failed to articulate a satisfactory explanation for its action, including “a rational connection between the facts found and the choice made.” USCIS also “imposed novel evidentiary requirements in its denial” of Scripps’ I-140 petition, the court said. Concluding that USCIS’s decision “was arbitrary and capricious, an abuse of discretion, and contrary to the law,” the court granted Scripps’ motion for summary judgment and denied USCIS’s motion for summary judgment.

Details:

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17. ETA Seeks Information on STEM and Non-STEM Occupations in PERM Schedule A

The Department of Labor’s Employment and Training Administration (ETA) is seeking information from the public to potentially consider revisions to Schedule A of the permanent labor certification process to include occupations in Science, Technology, Engineering and Mathematics (STEM), including Artificial Intelligence-related occupations, and non-STEM occupations, for which there may be an insufficient number of ready, willing, able, and qualified U.S. workers.

ETA said its request for information (RFI) will provide the public an opportunity to address whether and why STEM occupations should be added to Schedule A, offer information on which occupations should be considered as falling under the umbrella of STEM, and request data, studies, and related information that should be considered to establish a reliable, objective, and transparent methodology for identifying STEM or non-STEM occupations with a significant shortage of workers that should be added to or removed from Schedule A. “To the extent possible and wherever appropriate, responses to this RFI should indicate the question number(s) and include specific information, data, statistical models and metrics, and any resources relied on in reaching conclusions for its claims, rather than relying on general observations,” ETA said.

Details:

  • PERM Schedule A Request for Information, announcement, Dept. of Labor (Dec. 15, 2023).
  • Request for Information (advance copy), Labor Certification for Permanent Employment of Foreign Workers in the United States; Modernizing Schedule A to Include Consideration of Additional Occupations in Science, Technology, Engineering, and Mathematics (STEM) and Non-STEM Occupations.

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18. ETA Announces Adverse Effect Wage Rates for H-2A Workers in 2024

The Department of Labor’s (DOL) Employment and Training Administration (ETA) has announced Adverse Effect Wage Rates (AEWRs) for H-2A agricultural workers in 2024, for range (herding or production of livestock) and non-range (agricultural labor or services other than the herding or production of livestock) occupations. The monthly AEWR for range occupations in calendar year 2024 is $1,986.76. The non-range AEWR varies by state, and ranges from $14.53 to $19.25 per hour.

The AEWRs are for the employment of temporary or seasonal nonimmigrant foreign workers. AEWRs are the minimum wage rates DOL has determined must be offered, advertised in recruitment, and paid by employers to H-2A workers and workers in corresponding employment so that the wages and working conditions of workers in the United States who are similarly employed will not be adversely affected.

Details:

  • Federal Register notice (range occupations), 88 Fed. Reg. 86679 (Dec. 14, 2023).
  • Federal Register notice (non-range occupations), 88 Fed. Reg. 86677 (Dec. 14, 2023).

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19. January Visa Bulletin Released; Religious Workers Category Extended

The Department of State’s Visa Bulletin for January 2024 notes that H.R. 6363, a stopgap funding bill signed on November 16, 2023, extended the employment fourth preference Certain Religious Workers (SR) category until February 2, 2024. The bulletin notes that no SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight February 1, 2024. Visas issued before that date will be valid only until February 1, 2024, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight February 1, 2024.

The SR category is subject to the same final action dates as the other employment fourth preference categories per applicable foreign state of chargeability, the bulletin states.

Details:

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20. USCIS Changes Filing Location for Form I-907 Filed for Pending Form I-140

U.S. Citizenship and Immigration Services (USCIS) announced that as of December 15, 2023, it has begun transitioning the filing location for Form I-907, Request for Premium Processing, when filed for a pending Form I-140, Immigrant Petition for Alien Workers, from the service centers to appropriate USCIS lockboxes.

USCIS noted that this change does not apply to those filing Form I-140 concurrently with an associated application (such as Form I-485, I-765, or Form I-131). The agency said it will soon announce a filing location change for these forms, but as of now, such forms should be filed with the service centers as listed on the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker page.

USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

Details:

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21. OFLC Announces Annual Determination of H-2A Labor Supply States for U.S. Worker Recruitment

The Department of Labor’s Office of Foreign Labor Certification (OFLC) Administrator has determined that current requirements for labor supply states (LSS) will remain in effect, with one modification: OFLC will no longer recognize North Carolina and Texas as traditional labor supply states for the state of Michigan.

DOS said that this LSS determination was effective December 7, 2023, for employers who have not commenced recruitment after receiving a Notice of Acceptance. The determination will remain valid until the OFLC Administrator publishes a new determination on the OFLC website.

OFLC explained that a 2022 H-2A Final Rule implemented a new process for the OFLC Administrator’s LSS determinations. LSS are additional states in which an employer’s job order will be circulated and, if appropriate, where additional recruitment may be required. Earlier this year, the OFLC Administrator solicited public input about LSS and related recruitment mechanisms. Determinations include particular areas of the United States in which a significant number of qualified workers have been identified and who, if recruited through additional positive employer recruitment activities, would be willing to make themselves available for work in the state.

Details:

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22. USCIS Releases Employment-Based Adjustment of Status FAQs

On December 8, 2023, U.S. Citizenship and Immigration Services (USCIS) released frequently asked questions (FAQs) about employment-based (EB) adjustment of status.

USCIS noted that the EB annual limit for fiscal year (FY) 2024 will be higher than was typical before the pandemic, but lower than it was in FYs 2021-2023. USCIS said it is dedicated to using as many available employment-based visas as possible in FY 2024, which ends on September 30, 2024.

Details:

  • USCIS FAQs (Dec. 8, 2023).

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23. State Dept. Issues Final Rule to Eliminate Informal Evaluations of Immigrant Visa Applicants’ Family Members

Effective January 8, 2024, the Department of State (DOS) is amending its immigrant visa regulations by removing the section allowing a consular officer to conduct an informal evaluation of the family members of an immigrant visa applicant to identify potential grounds of ineligibility.

DOS explained that the existing regulation was promulgated in 1952, when a consular officer could more readily assess a family member’s potential qualification for a visa without a formal visa application. “Assessing eligibility for an immigrant visa is now a more complex task and not one which can be accomplished accurately with an informal evaluation,” DOS said.

Details:

  • DOS Final Rule, 88 Fed. Reg. 85109 (Dec. 7, 2023).

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New Publications and Items of Interest

IER/HSI fact sheet on electronic completion of Form I-9. The Department of Justice’s (DOJ) Immigrant and Employee Rights Section (IER) has issued a fact sheet with the Department of Homeland Security’s Immigration and Customs Enforcement, Homeland Security Investigations. The fact sheet, How to Avoid Unlawful Discrimination and Other Form I-9 Violations When Using Commercial or Proprietary Programs to Electronically Complete the Form I-9 or Participate in E-Verify, discusses how employers can avoid violating the law when using such programs to complete the Form I-9 or E-Verify process. DOJ noted that several settlements “have involved employers that IER determined had committed discrimination related to their use of commercial or proprietary electronic Form I-9 programs.” These settlements “required employers to pay civil penalties, rehire workers with back pay, undergo training and monitoring, and change their employment eligibility verification practices to avoid future discrimination involving commercial or proprietary Form I-9 programs,” DOJ said, adding that “[u]nderstanding common mistakes that contribute to discrimination can help an employer when considering whether to use a commercial or proprietary program for completing the Form I-9 or participating in E-Verify.”

IER On-Demand Trainings. The Immigrant and Employee Rights (IER) Section of the Department of Justice’s Civil Rights Division is offering an on-demand training for employers on avoiding unlawful immigration-related employment discrimination. IER also provides an Employer Hotline at 1-800-255-8155.

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

Several ABIL members spoke at the Practising Law Institute’s 56th Annual Immigration and Naturalization Institute conference on November 28-29, 2023:

  • USCIS Update and Processing Trends – Practical Tips: Marketa Lindt
  • Permanent Labor Certification Program (PERM) – Current Adjudication Trends: Vincent Lau, Bob White (Masada Funai).
  • Ethical Issues for the Immigration Practitioner: Cyrus Mehta
  • Supreme Court Update and Analysis: Immigration: Ira Kurzban (Kurzban Kurzban Tetzeli and Pratt P.A.)

Klasko Immigration Law Partners announced new leadership changes at the firm. Starting January 1, 2024, the following leadership positions will be effective:

  • Ronald Klasko, Chairman. Mr. Klasko will continue to concentrate on the firm’s strategic growth and vision.
  • William (Bill) Stock, Managing Partner. Mr. Stock will continue to enhance the firm’s operations across all office locations.
  • Elise Fialkowski, Corporate Team Co-Chair
  • Michele Madera, Corporate Team Co-Chair. Together, Ms. Fialkowski and Ms. Madera will lead the Corporate Immigration Practice, strengthening existing client relationships and offerings for new clients.
  • Timothy (Tim) D’Arduini, Partner-In-Charge of DC Office. D’Arduini will lead the opening of the firm’s new office and expand its footprint into the D.C. metro area. He will be an essential part of the firm’s growth in the Mid-Atlantic region, and will play a key role in sustaining and enhancing the firm’s national and international capabilities. He also brings extensive compliance experience that will enhance the firm’s established worksite compliance practice area.

Mr. Mehta and Kaitlyn Box have co-authored a new blog post: Personal Conflicts of Interest Arising Out of the Israel-Hamas War.

Mr. Mehta and Jessica Paszko have co-authored several new blog posts: 2023 In Perspective From The Insightful Immigration Blog and Scripps v. Jaddou Offers Nuanced Interpretation of Final Merits Determination in Reversal of EB-1B Denial for Outstanding Researcher.

WR Immigration has posted several new blog entries: USCIS Increases H-1B Premium Processing Fee to $2,805, Alongside Fee Increases for Other Case Types; What Happened With the Form I-9? End-of-Year Recap; and Department of State Announces H-1B Visa Renewal Pilot Program in the U.S.

WR Immigration presented Chatting with Charlie: January 2024 Visa Bulletin Update on December 19, 2023. The presentation included a sneak peak of what’s in store for 2024 and an evaluation of the January 2024 Visa Bulletin.

Stephen Yale-Loehr was quoted by the Austin American-Statesman in Texas Democrats in Congress Say SB4 is Unconstitutional. Here’s What They’re Doing About It [available by subscription]. “They did it in Arizona,” Mr. Yale-Loehr said, referring to a 2012 Supreme Court case in which the Obama administration challenged a similar Arizona law. “[The Arizona law] was unconstitutional. It violated the federal government’s obligation to control immigration.”

Mr. Yale-Loehr was quoted by Newsday in Migrant Crisis: Politics Diminishes Likely Resolution, Analysts Say [available by subscription].

Mr. Yale-Loehr was quoted by Agence France-Presse in The Photo Intended to Prove That [Ukrainian President Volodymyr] Zelensky Received American Citizenship is a Digitally Forged Document (in Polish, with English translation available). He said, “A real naturalization certificate contains the person’s signature next to their photo. The certificate in the photo does not contain this. The alleged certificate also does not contain Zelensky’s signature at the top, but it should.” Mr. Yale-Loehr also noted that obtaining U.S. citizenship is a long process: “No person can simply obtain a certificate of naturalization. He must first go through the green card process, which means he must qualify for a green card based on asylum or sponsorship by an employer or close family member. This can take years. Even after receiving a green card, he has to wait 3-5 years before he can apply for naturalization.” In addition, Mr. Yale-Loehr said, he must have been physically present in the United States for at least three months immediately before applying for naturalization. “Zelensky did not meet these requirements,” he noted.

Mr. Yale-Loehr co-authored an op-ed in the Seattle Times, Outdated Green Card Laws Hurt Workers From India.

Mr. Yale-Loehr’s white paper, Immigration Reform: A Path Forward, was featured in an eCornell podcast discussion, Three Ways to Reform Immigration Now.

Mr. Yale-Loehr was quoted by Bloomberg Law in Biden’s Immigration Agenda Faces Uncertain Fate in U.S. Courts. He said, “Federal courts are becoming the arbiters of immigration policy. That makes it very difficult for any administration to manage immigration because no matter what they try to do administratively, someone will sue them in federal court.”

Mr. Yale-Loehr was quoted by NY1.com in U.S. Senators Search for Border Policy Deal, as Experts Downplay Potential Short-Term Impact on NY’s Migrant Influx. He warned that detaining and quickly expelling migrants before asylum screenings would not solve the influx problem for cities like New York, which is grappling with a surge of migrants. “Probably not, because the crisis is larger than any one piece of legislation.” Mr. Yale-Loehr likened the proposed policy changes in Congress to a bandage over a gaping wound and said broader reforms are needed. He suggested that Congress consider ideas like making more work visas available. “We need to have a balanced approach. Yes, we need to have deterrence so that only those people who deserve to be in the United States can come. But we also need to find more legal pathways for people to enter legally in the United States, so that they are not tempted to enter illegally,” he said.

Mr. Yale-Loehr was quoted by CBS News in Texas Immigration Law Known as SB4, Allowing State to Arrest Migrants, Signed by Gov. Greg Abbott. He called SB4 “unprecedented,” noting that the Texas law is more sweeping in nature than SB 1070, a controversial 2010 Arizona law that penalized unauthorized immigrants in various ways, including by empowering state police to stop those believed to be in the country unlawfully. The U.S. Supreme Court partially struck down that Arizona law in 2012, concluding that states could not undermine federal immigration law. “It’s by far the most anti-immigrant bill that I have seen,” Mr. Yale-Loehr said of SB4.

Mr. Yale-Loehr was quoted by the Cornell Chronicle in Research Team Led by Dr. Gunisha Kaur Wins 2023 National Academy of Medicine Catalyst Prize. The article discusses Dr. Kaur’s winning research project, Digital Solutions to Reduce Maternal Morbidity and Mortality in Refugee Women, which aims to clinically train and validate a digital refugee health system. Dr. Kaur collaborated with Mr. Yale-Loehr and another professor on the project. “Many refugees and asylum seekers worry that if they seek medical help while pregnant, they might be deported,” Mr. Yale-Loehr said. “This new research builds on prior work Dr. Kaur and I did dispelling that concern. Our website Rights4Health informs immigrants about their eligibility for public benefits.”

A new podcast by the Bipartisan Policy Center featured discussion of a white paper, Immigration Reform: A Path Forward, co-authored by Mr. Yale-Loehr. He and his co-authors discussed their ideas for reforms to border management and asylum policy, worker visa programs, and DREAMer protections. While large, comprehensive immigration reform is unlikely to move forward in Congress soon, certain targeted reforms are both urgently needed and potentially achievable, they say.

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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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