IMMIGRATION UPDATE – February 5, 2025
NEW PUBLICATIONS AND ITEMS OF INTEREST
New immigration estimates and effects on employment in the United States: The Brookings Institution has released a report, New Immigration Estimates Help Make Sense of the Pace of Employment. The report considers recent immigration flows and their potential macroeconomic implications in the United States.
Know your rights. A number of organizations, including the Immigrant Legal Resource Center and Catholic Legal Immigration Network, Inc., have published resources highlighting immigrants’ rights in the United States, including “know your rights” information and what documents they may want to carry when traveling inside the United States. See also Information for Employers — “What to Do if Immigration Comes to Your Workplace” : NELP_EmployerGuide_Eng_2025_Final-.pdf. Note the important distinction between administrative and judicial warrants, and a public lobby versus private areas of a business.
HEADLINES
DHS Pauses Humanitarian Parole Programs – The top official at U.S. Citizenship and Immigration Services reportedly ordered a pause of various humanitarian parole programs while the agency assesses them. The report describes the scope of the programs to be paused as “vast.”
CBP Clarifies Advance Parole Guidance; Practitioners Urge Caution – U.S. Customs and Border Protection clarified that an executive order to ““terminate all categorical parole programs that are contrary to the policies of the United States” does not apply to those arriving with a valid Form I-512 (based upon an I-485 adjustment of status filing) or those being processed for Significant Public Benefit Parole in coordination with federal law enforcement partners. Practitioners urged caution, however.
President Trump Orders Guantanamo Bay Expansion to ‘Full Capacity’ – President Trump ordered an expansion of the Migrant Operations Center at Naval Station Guantanamo Bay, Cuba, to “full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States, and to address attendant immigration enforcement needs.” He indicated that some migrants would be sent there indefinitely rather than being deported to their home countries.
Scammers Are Impersonating ICE Officers and Local Police – In the current climate of aggressive deportations, scammers are attempting to cash in by impersonating U.S. Immigration and Customs Enforcement officers and local police to scare naturalized U.S. citizens and immigrants into giving out information.
USCIS Updates Guidance on EB-2 National Interest Waivers – U.S. Citizenship and Immigration Services (USCIS) has updated its policy guidance to clarify how the agency evaluates eligibility for the second preference employment-based category for petitions filed with a request for a national interest waiver.
Filing Procedures Updated for Immigrant Petitions for Foreign Workers – U.S. Citizenship and Immigration Services announced updated procedures for submitting a Form I-140, Immigrant Petition for Foreign Workers, accompanied by a permanent labor certification, application for Schedule A designation, or national interest waiver request.
USCIS Extends and Expands DED for Certain Hong Kong Residents in the United States – President Biden has extended Deferred Enforced Departure for eligible Hong Kong residents present in the United States on January 15, 2025, for two years, through February 5, 2027, and has ordered related extended work authorization for the same period.
Appeals Court Rules DACA Is Illegal But Limits Ruling to Texas – The U.S. Court of Appeals for the Fifth Circuit affirmed the judgment of a district court that the Deferred Action for Childhood Arrivals program is illegal, but limited the ruling to Texas.
Visa Bulletin for February Includes Details About March Expiration of EB-4 Religious Workers (SR) Category – No SR visas may be issued overseas, or final action taken on adjustment of status cases, after March 13, 2025.
USCIS Updates O-1 Guidance on Extraordinary Ability Evidence – U.S. Citizenship and Immigration Services updated its policy guidance, effective immediately, to clarify how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, including adding examples of evidence for individuals in critical and emerging technologies.
Edakunni Settlement Agreement on Concurrent Adjudication Expired on January 18 – A settlement agreement in Edakunni v. Mayorkas, effective for two years, expired on January 18, 2025.
Romania Added to Visa Waiver Program – U.S. Customs and Border Protection anticipates that the Electronic System for Travel Authorization online and mobile applications will be updated on or around March 31, 2025, to allow most citizens and nationals of Romania to apply to travel to the United States under the Visa Waiver Program.
DETAILS
DHS Pauses Humanitarian Parole Programs
On January 23, 2025, the top official at U.S. Citizenship and Immigration Services (USCIS) reportedly ordered a pause of various humanitarian parole programs while the agency assesses them, following an email order from the acting head of the Department of Homeland Security (DHS) to conduct such a review. The New York Times, which obtained a copy of the email, reported that the directive “demands an immediate end to ‘final decisions’ on applications related to the programs while the administration reviews them and decides whether to terminate them.” The news report describes the scope of the programs to be paused as “vast.” Affected parole programs include those for Ukrainians, Cubans, Haitians, Nicaraguans, and Venezuelans.
The agency orders are aligned with various Trump administration statements and actions, including an executive order (EO), Protecting the American People Against Invasion, which President Trump signed on his first day in office; an order to end “all categorical parole programs that are contrary to the policies of the United States established in my executive orders“; and a memorandum from Acting DHS Secretary Benjamine Huffman, “Guidance Regarding How to Enforce Enforcement Discretion.” A DHS statement said that this action “will return the humanitarian parole program to its original purpose of looking at migrants on a case-by-case basis.”
Yael Schacher, the director of Americas and Europe for Refugees International, said, “This suspension on parole decisions is similar to the suspension of all asylum access at the border and the suspension of the refugee program. It’s a testament to the administration’s hostility to all humanitarian immigration.”
Uniting for Ukraine. Among the paused programs is the Uniting for Ukraine (U4U) Parole Program, implemented after Russia’s invasion of Ukraine, which permits Ukrainians seeking temporary refuge to travel to and work in the United States. The DHS directive halts the review and adjudication of both initial and renewal parole applications under the U4U program. While not officially terminated, the directive suggests that DHS will not accept new applications for initial parole periods or renewal (or “reparole”) applications for those seeking to extend their parole in United States.
Ukrainians currently in the United States should contact counsel to review any options available to them. It is also recommended to avoid international travel (even with advance parole or similar travel authorizations). Due to heightened scrutiny at ports of entry, travelers risk being denied reentry and may face expedited removal proceedings. Those seeking reentry have reportedly been asked to voluntarily depart or risk detention.
Venezuelan TPS. Kristi Noem, DHS Secretary, canceled the latest extension of Temporary Protected Status for Venezuelans, which will now end on April 1 or September 10, 2025, depending on when they arrived in the United States. USCIS said it “will invalidate EADs; Forms I-797, Notice of Action (Approval Notice); and Forms I-94, Arrival/Departure Record (collectively known as TPS-related documentation) that have been issued with October 2, 2026 expiration dates under the Mayorkas [TPS for Venezuelans] Notice. USCIS will provide refunds to any fees paid by these aliens as well.” USCIS said it “will provide additional guidance regarding the two Venezuela TPS designations on a future date in accordance with applicable laws.” There are more than 300,000 Venezuelans in the United States with TPS.
CBP Clarifies Advance Parole Guidance; Practitioners Urge Caution
On January 22, 2025, U.S. Customs and Border Protection (CBP) clarified that an executive order to ““terminate all categorical parole programs that are contrary to the policies of the United States” does not apply to those arriving with a valid Form I-512 [advance parole] or those being processed for Significant Public Benefit Parole in coordination with federal law enforcement partners.
Even though the guidance clarified that adjustment of status applicants with a valid I-512 may be admitted, we recommend that employees maintain their underlying visa status and travel using valid H and L visas to the extent possible. Recommendations include:
- Consider deferring unnecessary travel until clear guidance, procedures, and training are in place for CBP officers at the various ports of entry.
- Those with “dual intent” H or L visas should present valid nonimmigrant visas to facilitate re-entry in lieu of relying on advance parole.
- If travel is necessary and there is no underlying H or L visa, it may be helpful to bring copies of CBP’s Regional Carrier Liaison Guidance until training is fully rolled out.
- Those in other nonimmigrant statuses that are not recognized as “dual intent,” such as O, E, F, and TN status, who have a Form I-485, Application to Register Permanent Residence or Adjust Status, application pending should be prepared to explain to CBP that admission in their nonimmigrant status may trigger the abandonment of a pending I-485 and continue to request admission pursuant to their valid advance parole.
- Those seeking to travel with parole documents should be prepared for longer periods of review and questioning in CBP’s Secondary Inspection and should be prepared to present relevant documentation upon request. For example, travelers presenting advance parole documents related to a pending I-485 application should confirm that their I-485 remains pending and travel with a copy of their I-485 receipt notice, as CBP often seeks to confirm whether the I-485 remains pending during secondary inspection.
President Trump Orders Guantanamo Bay Expansion to ‘Full Capacity’
On January 29, 2025, President Trump issued a memorandum to the Secretaries of Defense and Homeland Security “to expand the Migrant Operations Center at Naval Station Guantanamo Bay to full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States, and to address attendant immigration enforcement needs identified by the Department of Defense and the Department of Homeland Security.” The memo states that this action is necessary “to halt the border invasion, dismantle criminal cartels, and restore national sovereignty.”
President Trump indicated that some migrants would be sent there indefinitely rather than being deported to their home countries: “We have 30,000 beds in Guantanamo to detain the worst criminal illegal aliens threatening the American people. Some of them are so bad we don’t even trust the countries to hold them, because we don’t want them coming back, so we’re going to send them to Guantanamo.”
Scammers Are Impersonating ICE Officers and Local Police
In the current climate of aggressive deportations, scammers are attempting to cash in by impersonating U.S. Immigration and Customs Enforcement (ICE) officers and local police to scare naturalized U.S. citizens and immigrants into giving out information.
For example, on the NextDoor social media site, a posting stated that a naturalized U.S. citizen received multiple calls from purported ICE agents and the county police. The fake ICE agent informed him that there was an arrest warrant and asked about his bank account and other assets. The spoofed phone number matched the phone number on ICE’s actual website. The fake police detective called and gave the victim his badge number and name and stated that the police were coming to arrest him. The victim and his brother took steps to verify the information. The police did not have any detective or badge number matching the fake information.
Police or ICE agents will not call people before serving an arrest warrant and ask for personal or financial information. Also, scammers can mimic valid phone numbers. Such scams should be reported to the local police.
USCIS Updates Guidance on EB-2 National Interest Waivers
On January 15, 2025, U.S. Citizenship and Immigration Services (USCIS) announced that it has updated its policy guidance to clarify how the agency evaluates eligibility for the second preference employment-based (EB-2) classification for immigrant petitions filed with a request for a national interest waiver (NIW).
The new guidance explains that for advanced degree professionals seeking an NIW, USCIS considers whether the occupation in which the petitioner proposes to advance an endeavor is a profession and, if applicable, whether the five years of post-bachelor’s experience is in the specialty. The guidance also states that for persons of exceptional ability seeking an NIW, the exceptional ability must relate to the endeavor proposed as part of the NIW request. USCIS said it determines the relationship of exceptional ability to the proposed endeavor “on a case-by-case basis, considering any shared skillsets, knowledge, or expertise.”
In addition, the new guidance—which builds on a previous Policy Manual update that discussed the unique considerations for persons with advanced degrees in science, technology, engineering, and mathematics fields and entrepreneurs—provides information about how USCIS evaluates whether a proposed endeavor has national importance and explains how the agency evaluates evidence, such as letters of support and business plans, when determining whether a person is well-positioned to advance an endeavor.
This guidance, in Volume 6, Part F, Chapter 5 of the Policy Manual, applies to requests pending or filed on or after the publication date. The guidance is controlling and supersedes any related prior guidance, USCIS said.
Filing Procedures Updated for Immigrant Petitions for Alien Workers
On January 13, 2025, U.S. Citizenship and Immigration Services (USCIS) announced updated procedures for submitting a Form I-140, Immigrant Petition for Alien Workers, accompanied by a permanent labor certification, application for Schedule A designation, or national interest waiver (NIW) request.
The instructions to Form ETA-9089 state that only a signed Final Determination must be submitted with the Form I-140 petition as evidence of permanent labor certification approval. USCIS noted that this “limited requirement is because, as a part of this process change, USCIS receives most of the information about the permanent labor certification directly from DOL under a data sharing agreement.”
USCIS said that employers whose labor certifications were processed in the FLAG system must include a printed copy of the electronic Final Determination with their Form I-140, and USCIS “will consider this printed copy as an original, approved labor certification.” The Final Determination “must be completed and electronically signed by DOL, and must be signed by the foreign worker, employer, and the employer’s attorney or agent, if applicable.” In addition, Form I-140 petitions for Schedule A occupations “must contain a completed, uncertified Form ETA-9089, including all applicable appendices, a signed Final Determination, and a valid prevailing wage determination tracking number in Section E, Item 1 of the Form ETA-9089.” Finally, a Form I-140 petition with an NIW request “must contain a copy of the Form ETA-9089, Appendix A, and a signed Final Determination,” USCIS said.
USCIS Extends and Expands DED for Certain Hong Kong Residents in the United States
President Biden extended Deferred Enforced Departure (DED) for eligible Hong Kong residents present in the United States on January 15, 2025, for two years, through February 5, 2027, and has ordered related extended work authorization for the same period.
In a memorandum, President Biden said there are “compelling foreign policy reasons” to extend DED for an additional period for those residents of Hong Kong presently residing in the United States who were under a grant of DED until February 5, 2025, as well as to defer enforced departure for other Hong Kong residents who arrived in the United States after the initial grant of DED.
The order also directed the Secretary of Homeland Security to “consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Hong Kong residents.”
Appeals Court Rules DACA Is Illegal But Limits Ruling to Texas
On January 17, 2025, the U.S. Court of Appeals for the Fifth Circuit largely affirmed the judgment of a district court that the Deferred Action for Childhood Arrivals (DACA) program is illegal, but limited the ruling to Texas.
Previously, in 2022, the Fifth Circuit affirmed in part and remanded because the Department of Homeland Security (DHS) had cured a procedural defect in the DACA program by promulgating a final rule. A new appeal addressed that final rule. The district court found that Texas still had standing to challenge DACA and held that the final rule was substantively unlawful. The court accordingly vacated the rule, entered a nationwide injunction, and preserved the stay.
The Fifth Circuit said it largely agreed with the district court and thus affirmed its judgment, although it modified the remedial order. Among other things, the Fifth Circuit also limited the injunction to Texas and maintained the stay pending further appeal.
Visa Bulletin for February Includes Details About March Expiration of EB-4 Religious Workers (SR) Category
The Department of State’s Visa Bulletin for February 2025 includes information about the expiration of the EB-4 Religious Workers (SR) visa category, among other developments. According to the bulletin, no SR visas may be issued overseas, or final action taken on adjustment of status cases, after March 13, 2025. Visas issued before that date will be valid only until March 13, 2025, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by March 13, 2025.
USCIS Updates O-1 Guidance on Extraordinary Ability Evidence
On January 8, 2025, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance, effective immediately, to clarify how it evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, including adding examples of evidence for individuals in critical and emerging technologies. The updated guidance aligns with President Biden’s Executive Order from October 2023, aimed at enhancing pathways for individuals working in artificial intelligence and other critical technologies.
The guidance:
- Explains that a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on the beneficiary’s behalf.
- Provides clarifying guidance regarding evidentiary criteria for O-1A and O-1B nonimmigrants.
- Adds examples of relevant evidence that may be submitted by an interested U.S. government agency.
- Provides an example of an occupational change within a technological field.
- Clarifies the circumstances under which USCIS limits an extension of stay to 1 year.
The flexibility offered with this guidance may particularly benefit for entrepreneurs, startup founders, and self-employed individuals working in areas of extraordinary ability. The clarification of O-1 extension circumstances may also benefit those working in research and development as their projects progress and extend to subsequent phases. However, it is important to note that this guidance was issued under the Biden Administration. Under the Trump Administration we are not seeing these benefits, and in fact are seeing an increase in the issuance of Requests for Additional Evidence.
Edakunni Settlement Agreement on Concurrent Adjudication Expired on January 18
A settlement agreement in Edakunni v. Mayorkas, effective for two years, expired on January 18, 2025. Under the agreement, U.S. Citizenship and Immigration Services (USCIS) said it would bundle the adjudication of the Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) with the underlying Form I-129 (Petition for a Nonimmigrant Worker), where applicable, for H-4 and L-2 derivatives (e.g., dependent spouses) when these forms were properly filed together regardless of whether they were filed under standard or premium processing. USCIS retains the ability to adjudicate concurrently per its discretion, but whether such discretion will be favorably exercised is uncertain.
The agreement was seen as a way to help the spouses of H-1B and L-1 visa holders timely obtain work authorization.
Romania Added to VWP
On January 10, 2025, the Department of Homeland Security (DHS), in consultation with the Department of State, announced the designation of Romania as a participating country in the Visa Waiver Program (VWP).
The U.S. Embassy in Romania said that U.S. Customs and Border Protection anticipates that the Electronic System for Travel Authorization (ESTA) online and mobile applications will be updated on or around March 31, 2025, to allow most citizens and nationals of Romania to apply to travel to the United States under the VWP for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. The embassy noted that these authorizations are generally valid for two years. Travelers with valid B-1/B-2 visas may continue to use their visas for travel to the United States, and B-1/B-2 visas will remain an option for Romanian citizens. The embassy said that U.S. citizens already can travel visa-free to Romania and stay there for up to 90 days for tourism or business purposes if they have a passport that is valid for at least three months from the date of arrival.
Romania is the 43rd member of the VWP and the fourth country added under DHS Secretary Mayorkas, after Croatia (2021), Israel (2023), and Qatar (2024).
The U.S. Embassy in Romania noted that ESTA applications may be accessed online or by downloading the “ESTA Mobile” application through the iOS App Store or the Google Play store.
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IMMIGRATION AGENCY INFORMATION/PROCESSING TIMES
U.S. Customs and Border Protection:
Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
PERM and Prevailing Wage Processing Times: https://flag.dol.gov/processingtimes
State Department:
Visa Appointment Wait Times: https://travel.state.gov/content/travel/en/us-visas.html
Monthly Immigrant Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
U.S. Citizenship and Immigration Services:
Processing Times: https://egov.uscis.gov/processing-times/
Case Status Online: https://egov.uscis.gov/
GOVERNMENT ENGAGEMENTS
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.
E-Verify webinar schedule: E-Verify released its calendar of webinars.
SAVE webinars: Systematic Alien Verification for Entitlements (SAVE) has updated its calendar of webinars.
X (Formerly Twitter) ACCOUNTS
- EOIR: @DOJ_EOIR
- ICE: @ICEgov
- Study in the States: @StudyinStates
- USCIS: @USCIS
- Alliance of Business Immigration Lawyers: ABIL is available on X (formerly Twitter): @ABILImmigration
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This newsletter was prepared in collaboration with ABIL, the Alliance of Business Immigration Lawyers, comprised of twenty U.S. immigration lawyers who head some of the top immigration practices in the country. Larrabee Albi Coker LLP is an active member of ABIL.
Legal Disclaimer: This newsletter is provided for informational purposes only and does not substitute for legal advice based on the circumstances of a specific matter.