IMMIGRATION UPDATE – January 24, 2023
Parties Reach Settlement in Lawsuit Filed on Behalf of Spouses of H-1B and L-1 Visa Holders — USCIS will premium process applications of H-4 and L-2 dependents if they are filed concurrently with the primary’s I-129 premium processing request. The agreement is to take effect on January 25, 2023. The plaintiffs reached a settlement with the government under which USCIS agreed to return to bundling the adjudication of the Form I-539 Application to Extend/Change Nonimmigrant Status, and the Form I-765 Application for Employment Authorization for H-4 and L-2 derivatives along with the underlying Form I-129, Petition for a Nonimmigrant Worker. USCIS will do so when those forms are properly filed together, regardless of whether they are filed under standard or premium processing. (Edakunni, et al. v. Mayorkas, 1/19/23).
USCIS Extends Green Card Validity for Conditional Permanent Residents with a Pending Form I-751 or Form I-829 — USCIS is extending the validity of Permanent Resident Cards (also known as Green Cards) for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status for 48 months beyond the card’s expiration date.
Visa Bulletin for February 2023 Includes Retrogressions in the Employment Third Preference ‘Other Workers’ Category, and ‘Certain Religious Workers’ Availability – The Department of State’s Visa Bulletin for February 2023 has been released.
HHS Issues Poverty Guidelines for 2023 – The Department of Health and Human Services issued updated poverty income guidelines for 2023 to account for 2022’s increase in prices as measured by the Consumer Price Index. The poverty guidelines are used as an eligibility criterion by a number of federal programs.
ICE Unintentionally Releases Information on 6,000 Noncitizens in Custody – U.S. Immigration and Customs Enforcement (ICE) announced that while performing routine website updates, it unintentionally posted a document on ICE.gov for about five hours that included names and other personally identifiable information (PII), along with immigration information, of approximately 6,000 noncitizens in ICE custody.
DOS Launches ‘Welcome Corps’ for Private Sponsorship of Refugees – The Department of State, in collaboration with the Department of Health and Human Services, announced the launch of “Welcome Corps,” a new private sponsorship program to welcome refugees and support their resettlement and integration into the United States.
USCIS Provides Follow-Up Q&A on International Student Issues – U.S. Citizenship and Immigration Services provided questions and answers following a webinar presented by the Office of the Citizenship and Immigration Services Ombudsman on international student issues.
DHS Streamlines Deferred Action Process for Immigrant Workers Participating in Labor Enforcement Investigations – The Department of Homeland Security (DHS) announced on January 13, 2023, that noncitizen workers who are victims of or witnesses to a violation of labor rights can now access a streamlined and expedited deferred action request process.
Premium Processing To Expand for EB-1 and EB-2 Form I-140 Petitions and Certain Students and Exchange Visitors – U.S. Citizenship and Immigration Services is implementing the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Also, in March and April, USCIS plans to expand premium processing to certain F-1 students and exchange visitors.
DHS Extends and Redesignates Somalia for TPS for 18 Months –DHS is extending temporary protected status (TPS) for Somalia for an additional 18 months, from March 18, 2023, through September 17, 2024. DHS also redesignated Somalia for TPS, allowing Somali nationals residing in the United States as of January 11, 2023, to apply.
Scheduling System for ‘Safe, Orderly and Humane Border Processing’ Goes Live –DHS announced that the new scheduling function in the CBP One™ mobile application is now live. Non-U.S. citizens located in Central or Northern Mexico who seek to travel to the United States may use U.S. Customs and Border Protection’s app to submit information in advance and schedule an appointment to present themselves at certain southwest border land ports of entry.
Agencies Raise Penalties for Document Fraud and Employer Violations of the D-1, H-1B, H-2A, and H-2B Visa Programs – As required by the Inflation Adjustment Act, the Departments of Homeland Security and Labor have raised the amount of certain penalties.
Supreme Court Declines to Resurrect Trump-Era Public Charge Rule – On January 10, 2023, the Supreme Court declined to review a case, Cook County, Illinois v. Mayorkas, that sought to revive the Trump-era public charge rule.
DHS Makes Two Corrections to Proposed Fee Rule – DHS corrected two typos in fee amounts in the published version of its proposed fee rule.
Visa Bulletin for February 2023 Includes Retrogressions in the Employment Third Preference ‘Other Workers’ Category, and ‘Certain Religious Workers’ Availability
The Department of State’s Visa Bulletin for February 2023 includes the following information about retrogressions in the worldwide final action and application filing dates in the employment third preference “Other Workers” category:
Higher than expected number use in the Employment Third Preference “Other Workers” (EW) category (persons performing unskilled labor requiring less than 2 years training or experience), most notably amongst applicants with earlier priority dates, has necessitated further retrogressions in the worldwide final action date and application filing date for February to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Except for China and India, all countries are subject to a final action date of 01JAN20 and an application filing date of 01FEB20. This situation will be continually monitored, and any necessary adjustments will be made accordingly.
The bulletin also notes the availability of the Certain Religious Workers category:
The Consolidated Appropriations Act, 2023, enacted on December 29, 2022, extended the Employment Fourth Preference Certain Religious Workers (SR) category until September 30, 2023. As indicated in item E of the January 2023 Visa Bulletin, the extension resulted in this category immediately becoming available, subject to the same final action dates as the other Employment Fourth Preference categories per applicable foreign state of chargeability.
- DOS Visa Bulletin for February 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-february-2023.html
HHS Issues Poverty Guidelines for 2023
The Department of Health and Human Services (HHS) issued updated poverty income guidelines for 2023 to account for 2022’s increase in prices as measured by the Consumer Price Index. Several federal programs use the poverty guidelines as an eligibility criterion.
As in prior years, the 2023 guidelines “are roughly equal to the poverty thresholds for calendar year 2022 which the Census Bureau expects to publish in final form in September 2023,” HHS said. As an example, the 2023 poverty guidelines for the 48 contiguous states and the District of Columbia (DC) are $14,580 annually for a household of one person and $19,720 for a household of two. For families/households with more than eight persons, the guidelines add $5,140 for each additional person. The Alaska and Hawaii guidelines differ from those for the 48 contiguous states and DC.
- Annual Update of the HHS Poverty Guidelines, 88 Fed. Reg. 3424 (Jan. 19, 2023). https://www.govinfo.gov/content/pkg/FR-2023-01-19/pdf/2023-00885.pdf
ICE Unintentionally Releases Information on 6,000 Noncitizens in Custody
U.S. Immigration and Customs Enforcement (ICE) announced that on November 28, 2022, while performing routine website updates, it unintentionally posted a document on ICE.gov that included names and other personally identifiable information (PII), along with immigration information, of approximately 6,000 noncitizens in ICE custody. The information was posted for approximately five hours before being removed, ICE said.
On December 7, 2022, the Department of Homeland Security (DHS) notified ICE that during its routine communication with the government of Cuba related to removal flights, DHS unintentionally indicated that some of the 103 names of individuals previously provided for removal processing were part of the ICE PII disclosure that occurred on November 28. ICE said that 46 of them were part of the previous ICE PII disclosure and 57 were not. All of these 103 individuals are Cuban.
For affected noncitizens subject to a final order of removal, ICE has delayed their removal for at least 30 days. The 30 days will be calculated from the time notification is provided to the noncitizen, ICE said. The noncitizens who were in custody “are being notified of the incident and the removal hold via hand delivery and almost all of those who were not in custody are receiving the notification via United States Postal Service,” ICE said.
- ICE statement. https://www.ice.gov/news/releases/statement-improper-disclosure-noncitizen-personally-identifiable-information
- ICE PII information page. https://www.ice.gov/pii
DOS Launches ‘Welcome Corps’ for Private Sponsorship of Refugees
The Department of State (DOS), in collaboration with the Department of Health and Human Services, announced the launch of “Welcome Corps,” a new private sponsorship program to welcome refugees arriving through the U.S. Refugee Admissions Program (USRAP) and support their resettlement and integration into the United States. The initiative is pursuant to President Biden’s Executive Order 14301, “Rebuilding and Enhancing Programs to Resettle Refugees.”
The Welcome Corps “creates new opportunities for everyday Americans to engage directly in refugee resettlement through private sponsorship, independent of and complementary to existing avenues for volunteering with resettlement agencies,” DOS said. Groups of at least five U.S. citizens or permanent resident adults will be able to apply to the Welcome Corps to privately sponsor the resettlement of refugees in the United States. Private sponsors will be responsible for independently raising funds and directly providing essential assistance to refugees for their first 90 days in their new community, DOS said. Such assistance includes helping refugees find housing and employment, enrolling children in school, and connecting refugees to essential services in the community.
In the first year of Welcome Corps, DOS will seek to mobilize 10,000 Americans as private sponsors for at least 5,000 refugees. If more than 10,000 individual Americans join the Welcome Corps in 2023, DOS will seek to pair additional private sponsors with refugees. DOS said it is funding a consortium of nonprofit organizations with expertise in welcoming, resettling, and integrating refugees into U.S. communities to support the Welcome Corps.
USCIS Provides Follow-Up Q&A on International Student Issues
U.S. Citizenship and Immigration Services (USCIS) provided questions and answers following a webinar presented by the Office of the Citizenship and Immigration Services Ombudsman in August 2022 on international student issues.
Topics include maintaining F-1 status and Optional Practical Training (OPT), applications for employment authorization, Systematic Alien Verification for Entitlements, the Student and Exchange Visitor Information System, changes of address, and COVID-19-related issues.
DHS Streamlines Deferred Action Process for Immigrant Workers Participating in Labor Enforcement Investigations
The Department of Homeland Security (DHS) announced on January 13, 2023, that noncitizen workers who are victims of or witnesses to the violation 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 the exploitive employers.” Effective immediately, DHS said, the process “will improve DHS’s longstanding practice of using its discretionary authority to consider labor and employment agency-related requests for deferred action on a case-by-case basis.”
A centralized intake process “will allow DHS to efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis, and more robustly support the mission of labor agencies,” DHS said. Noncitizens can submit such requests to U.S. Citizenship and Immigration Services (USCIS) through a central intake point established to support labor agency investigative and enforcement efforts. In addition to satisfying individual criteria to facilitate case-by-case determinations, requests for deferred action submitted through this centralized process must include a letter 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.
DHS said that for a deferred action request from a noncitizen who is in removal proceedings or has a final order of removal, upon reviewing the submission for completeness, USCIS will forward it to U.S. Immigration and Customs Enforcement (ICE) to make a final determination on a case-by-case basis. USCIS will consider all other deferred action requests on a case-by-case basis, and will consider all related employment authorization applications, including those related to deferred action requests decided by ICE.
Discretionary grants of deferred action under this process “will typically last for a period of two years, subject to termination at any time,” DHS said. Individuals granted deferred action may be eligible for employment authorization, which requires that they 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’s use of prosecutorial discretion, the agency said.
Workers can visit DHS.gov for additional information in English and Spanish and to submit requests.
- DHS press release, Jan. 13, 2023. https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations
- “DHS Support of the Enforcement of Labor and Employment Laws,” Jan. 13, 2023. https://www.dhs.gov/enforcement-labor-and-employment-laws
Premium Processing To Expand for EB-1 and EB-2 Form I-140 Petitions and Certain Students and Exchange Visitors
U.S. Citizenship and Immigration Services (USCIS) announced on January 12, 2023, that it is implementing the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.
Also, in March, USCIS will expand premium processing to certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking STEM OPT extensions who have a pending Form I-765, Application for Employment Authorization. In April, USCIS will expand premium processing to F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who are filing an initial Form I-765.
Petitioners who wish to request premium processing must file Form I-907, Request for Premium Processing Service. Beginning January 30, 2023, USCIS will accept Form I-907 requests for:
- All pending E13 multinational executive and manager petitions and E21 National Interest Waiver (NIW) petitions; and
- All initial E13 multinational executive and manager petitions and E21 NIW petitions.
USCIS said it will announce specific dates for each F-1 student group in February. USCIS anticipates expanding premium processing in May for certain student and exchange visitors with pending Form I-539 applications to extend or change nonimmigrant status, and in June for certain student and exchange visitors who are filing initial Form I-539 applications.
- USCIS alert, Jan. 12, 2023. https://www.uscis.gov/newsroom/alerts/uscis-announces-final-phase-of-premium-processing-expansion-for-eb-1-and-eb-2-form-i-140-petitions
DHS Extends and Redesignates Somalia for TPS for 18 Months
The Department of Homeland Security (DHS) announced the extension of temporary protected status (TPS) for Somalia for an additional 18 months, from March 18, 2023, through September 17, 2024. DHS also redesignated Somalia for TPS, allowing Somali nationals residing in the United States as of January 11, 2023, to apply for TPS, so long as they meet all eligibility requirements. The extension and redesignation of Somalia for TPS are “due to ongoing armed conflict and extraordinary and temporary conditions that prevent Somali nationals from safely returning,” DHS said.
The extension of TPS for Somalia allows approximately 430 current beneficiaries to retain TPS through September 17, 2024, if they continue to meet TPS eligibility requirements, DHS said. The redesignation of Somalia for TPS allows an estimated 2,200 additional Somali nationals (or individuals having no nationality who last habitually resided in Somalia) who have been continuously residing in the United States since January 11, 2023, to file initial applications to obtain TPS if they are otherwise eligible.
DHS plans to publish a Federal Register notice shortly that will include additional details.
- DHS press release, Jan. 12, 2023. https://www.dhs.gov/news/2023/01/12/secretary-mayorkas-extends-and-redesignates-somalia-temporary-protected-status-18
Scheduling System for ‘Safe, Orderly and Humane Border Processing’ Goes Live
On January 12, 2023, the Department of Homeland Security (DHS) announced that the new scheduling function in the CBP One™ mobile application is now live. Non-U.S. citizens located in Central or Northern Mexico who seek to travel to the United States may use U.S. Customs and Border Protection’s app to submit information in advance and schedule an appointment to present themselves at certain southwest border land ports of entry (POEs).
Due to court orders requiring DHS to continue implementing the Centers for Disease Control and Prevention’s Title 42 public health order, only noncitizens who can be considered for a humanitarian exception may use CBP One, DHS said. Under this order, CBP is authorized to except individuals on a case-by-case basis, based on the totality of circumstances, including humanitarian interest considerations. Noncitizens using CBP One must attest that they believe they meet certain identified vulnerability criteria and be prepared to substantiate this claim upon presentation at a POE, DHS said.
Noncitizens who seek an exception to Title 42 will be able to use the app to submit certain biographic and biometric information to CBP and schedule an appointment up to 14 days in advance at eight POEs:
- Arizona: Nogales
- Texas: Brownsville, Eagle Pass, Hidalgo, Laredo, and El Paso
- California: Calexico and San Ysidro
Once the Title 42 order eventually lifts, DHS said, individuals will be able to use the CBP One application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a POE to wait.
- DHS press release, Jan. 12, 2023. https://www.dhs.gov/news/2023/01/12/dhs-scheduling-system-safe-orderly-and-humane-border-processing-goes-live-cbp-onetm
Agencies Raise Penalties for Document Fraud and Employer Violations of the D-1, H-1B, H-2A, and H-2B Visa Programs
The Departments of Homeland Security (DHS) and Labor (DOL) have raised the amount of certain penalties for inflation, required by the Inflation Adjustment Act. DHS has raised penalties for document fraud, and penalties assessed against employers by U.S. Immigration and Customs Enforcement and U.S. Customs and Border Patrol for certain violations, and DOL has raised penalties for employer violations of the D-1, H-1B, H-2A, and H-2B visa programs.
- “Civil Monetary Penalty Adjustments for Inflation,” DHS, 88 Fed. Reg. 2175 (Jan. 13, 2023). https://www.govinfo.gov/content/pkg/FR-2023-01-13/pdf/2023-00626.pdf
- “Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2023,” DOL, 88 Fed. Reg. 2210 (Jan. 13, 2023). https://www.govinfo.gov/content/pkg/FR-2023-01-13/pdf/2023-00271.pdf
Supreme Court Declines to Resurrect Trump-Era Public Charge Rule
After the Trump administration’s 2019 public charge rule was invalidated nationwide following a court battle and the Biden administration’s dropping of its defense of the rule, Texas and 13 other states attempted to intervene and bring back the rule through litigation. The Biden administration also issued a new public charge rule, which those states challenged. On January 10, 2023, the Supreme Court declined to review the case, Cook County, Illinois v. Mayorkas.
Texas filed a new lawsuit on January 5, 2023, once again challenging invalidation of the 2019 rule and the Biden administration’s new rule, so it appears that the legal battles are not over.
- “Trump-Era Public Charge Lawsuit Comes to an End,” Illinois Coalition for Immigrant and Refugee Rights, Jan. 10, 2023. https://www.icirr.org/News/Trump-era-public-charge-lawsuit-comes-to-an-end
DHS Makes Two Corrections to Proposed Fee Rule
The Department of Homeland Security (DHS) published two corrections to its proposed rule to raise fees for certain immigration and naturalization benefit requests. For Form I-129CW and I-129, Petition for a CNMI Nonimmigrant Worker (with biometric services fee), the proposed fee is $1,015 (rather than $1,055). For Form I-765, Application for Employment Authorization – Online (with biometric services), the proposed fee is $555 (rather than $650). DHS explained that the typographical errors were corrected in the advance copy posted for public inspection but that printing was too far along to correct them in the official publication in the Federal Register on January 4, 2023.
Correction notice, DHS, 88 Fed. Reg. 1173 (Jan. 9, 2023). https://www.govinfo.gov/content/pkg/FR-2023-01-09/pdf/2023-00274.pdf
OFLC fall webinars. The Department of Labor’s Office of Foreign Labor Certification announced its fall 2022 webinar schedule to educate the filing community on changes to the H-2A and H-2B programs. See https://www.dol.gov/agencies/eta/foreign-labor (scroll to October 24, 2022).
Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section (IER), of the Civil Rights Division, is offering a number of free webinars for workers, employers, and advocates. For more information, see https://www.justice.gov/crt/webinars.
Webinars on E-Verify and Form I-9. E-Verify is presenting free webinars on E-Verify and the Form I-9 employment eligibility verification process. The webinars are eligible for professional development credits through the Society of Human Resource Management and the Human Resource Certification Institute, except for “E-Verify in 30” and “myE-Verify.” Customized sessions are also available; email E-VerifyOutreach@uscis.dhs.gov to arrange the topic, date, and time. https://www.e-verify.gov/about-e-verify/e-verify-webinars
E-Verify webinar schedule. E-Verify has released its calendar of webinars at https://www.e-verify.gov/calendar-field_date_and_time/month.
AGENCY PROCESSING TIMES
USCIS case processing times: https://egov.uscis.gov/processing-times/
US Department of Labor: https://flag.dol.gov/processingtimes
Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html
NEW PUBLICATIONS AND ITEMS OF INTEREST
Webinar on international student issues. The Office of the Citizenship and Immigration Services Ombudsman invites designated school officials and responsible officers to join the “Interagency Engagement on International Student Issues,” to be held Thursday, August 25, 2022, from 1 pm to 2:15 pm ET. https://bit.ly/3Ad3c2v
Webinar on support of Afghans. U.S. Citizenship and Immigration Services invites stakeholders to a webinar on Operation Allies Welcome and lawful immigration pathways available to Afghan nationals in the United States, to be held Thursday, September 1, 2022, from 3 pm to 4 pm ET. To register, visit the registration page and submit your email address.
Beware of ICE imposters. U.S. Customs and Immigration Enforcement (ICE) released a safety alert warning people to beware of ICE imposters after reports of people representing themselves as ICE personnel in person, by telephone, or online for fraudulent gain and attempting to elicit some form of payment or compensation for immigration benefits or other immigration services. https://www.ice.gov/sites/default/files/documents/Document/2019/bewareICEimposters.pdf
FAQ on VWP and ESTA. U.S. Customs and Border Protection has released frequently asked questions about the Visa Waiver Program and the Electronic System for Travel Authorization. https://www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visa-waiver-program-vwp-and-electronic-system-travel
COVID-19 resources. The response of the U.S. immigration agencies to the coronavirus (COVID-19) pandemic is constantly evolving, making it difficult to report relevant information that is not rendered immediately obsolete. The list of online resources below is intended to serve as a quick reference to the most current available agency information.
Coronavirus.gov: Primary federal site for general coronavirus information
USA.gov/coronavirus: Catalog of U.S. government’s response to coronavirus
CDC.gov/coronavirus: Centers for Disease Control and Prevention information
American Immigration Lawyers Association: (links to practice alerts on this site are restricted to members)
Immigration Agency Information
Department of Homeland Security: DHS.gov/coronavirus
– Overview and FAQs: https://www.ice.gov/coronavirus
– Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response
– Updates and Announcements: https://www.cbp.gov/newsroom/coronavirus
– Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home
Department of Labor:
– OFLC Announcements (COVID-19 announcements included here): https://www.foreignlaborcert.doleta.gov/
– COVID-19 FAQs:
Round 1 (Mar. 20, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf
Round 2 (Apr. 1, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%202_04.01.2020.pdf
Round 3 (Apr. 9, 2020): https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%203.pdf
State Department: https://www.state.gov/coronavirus/
Country-specific information: https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html
J-1 exchange visitor information: https://j1visa.state.gov/covid-19/
Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic
AGENCY TWITTER ACCOUNTS
Study in the States: @StudyinStates
I-9 AND E-VERIFY WEBINARS
USCIS and Immigrant and employee rights webinars. The Department of Justice’s Immigrant and Employee Rights Section, Civil Rights Division,has joined with USCIS to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes. For more information or to register, see: https://www.justice.gov/crt/webinars.
E-Verify webinar schedule: https://www.e-verify.gov/calendar-field_date_and_time/month/202004.
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.