IMMIGRATION UPDATE – November 23, 2022
Visa Bulletin for December 2022 Includes Many Updates – The Department of State’s Visa Bulletin for December 2022 includes a variety of updates. The estimated employment-based annual limit will be 197,000 for FY 2023.
Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges – The Office of the Inspector General found that the ConsularOne program, initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, has experienced deficiencies and delays with profound implications.
Title 42 Policy Blocked Effective December 21 – On November 15, 2022, a U.S. District Court judge blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which the judge granted. The order will be effective December 21, 2022.
USCIS Releases Tips on Avoiding Paper Filing-Related Delays – U.S. Citizenship and Immigration Services has released tips to avoid paper filing-related scanning delays.
State Dept. Announces Diversity Visa Reassignment Procedures for Kabul – All operations are suspended at the U.S. Embassy in Kabul, Afghanistan. Diversity visa (DV) selectees for the 2023 DV program year with a case assigned to U.S. Embassy Kabul should request reassignment to another embassy or consulate that processes DV applications.
Labor Dept. Announces H-2A Visa Program Listening Sessions – In conjunction with the Department of Labor’s (DOL) previously announced intention to engage in additional rulemaking on the H-2A visa program for temporary agricultural employment of foreign workers, DOL announced two virtual listening sessions, one for employers and their representatives and another for workers and their advocates.
OFLC Releases Public Disclosure Data, Selected Program Statistics, H-2B Foreign Labor Recruiter List for Q4 of FY 2022 – The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released various data and statistics, and the latest H-2B recruiter list.
Visa Bulletin for December 2022 Includes Many Updates
The Department of State’s Visa Bulletin for December 2022 includes a variety of updates:
- EMPLOYMENT-BASED PREFERENCE ANNUAL LIMIT FOR FISCAL YEAR 2023 — Preliminary consolidated number use by State and USCIS for all of FY-2022 shows there were approximately 57,000 unused family-sponsored visa numbers. As a result, the estimated employment-based annual limit will be 197,000 for FY-2023.
- VISA AVAILABILITY IN THE EMPLOYMENT FIRST CATEGORY FOR CHINA AND INDIA — Increased demand and number use in the Employment First category, combined with decreased visa number availability for FY-2023 compared to FY-2022, will most likely necessitate the establishment of final action dates and application filing dates for China and India in the coming months to hold number use within the maximum allowed under the FY-2023 annual limits. This situation will be continually monitored, and any necessary adjustments will be made accordingly.
- ESTABLISHMENT OF EMPLOYMENT SECOND PREFERENCE FINAL ACTION AND APPLICATION FILING DATES — DOS has deemed it necessary to establish a worldwide employment second preference final action and application filing dates effective in December. Except for China and India, all countries are subject to a final action date of 01NOV22 and an application filing date of 01DEC22.
- RETROGRESSION OF INDIA EMPLOYMENT SECOND PREFERENCE FINAL ACTION AND APPLICATION FILING DATES FOR DECEMBER — Fewer additional numbers will be available to India in the employment second preference category than originally estimated when the October and November final action and application filing dates were established. Therefore, further corrective action has been necessary to ensure that the limited supply of visa numbers is allocated by priority date.
- High demand in the employment fourth preference category has necessitated the establishment of a worldwide final action date and application filing date for December. Except for El Salvador, Guatemala, Honduras, and Mexico, all countries are subject to a final action date of 22JUN22 and an application filing date of 22JUL22.
- Higher than expected demand in the employment fourth preference category for El Salvador, Guatemala, and Honduras may necessitate corrective action.
- The Certain Religious Workers (SR) category is set to expire as of December 16, 2022. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 15, 2022. Visas issued prior to that date will be valid only until December 15, 2022, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States no later than midnight December 15, 2022. If legislative action extends this category, the December dates will be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective December 16, 2022.
Visa Bulletin for December 2022. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-december-2022.html
Title 42 Policy Blocked Effective December 21
On November 15, 2022, U.S. District Court Judge Emmet Sullivan blocked the Title 42 policy that has resulted in many migrants being turned away at the southern U.S. border. The same night, the Department of Justice filed a motion to stay the order for five weeks, which Judge Sullivan granted. The order will be effective December 21, 2022.
The Trump administration instituted the policy in March 2020, with the stated purpose of preventing the spread of the COVID-19 virus. Title 42 was the subject of litigation, and the Biden administration was prevented from revoking the policy. In vacating Title 42, the court noted that the Centers for Disease Control and Prevention (CDC) recognizes that current public health conditions no longer require continuation of an order to keep migrants out of the United States, and that plaintiffs would continue to face substantial harm if they were returned to their home countries. In its order vacating the policy, the court included “all orders and decision memos issued by the [CDC] suspending the right to introduce certain persons into the United States.” The court also declared the Title 42 policy to be “arbitrary and capricious in violation of the Administrative Procedure Act.”
The Department of Homeland Security (DHS) said the delay in implementation of the court’s order “will allow the government to prepare for an orderly transition to new policies at the border. But to be clear, under the unopposed motion, Title 42 would remain in place for some period.”
- Huisha-Huisha v. Mayorkas, Memorandum Opinion, Nov. 15, 2022. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cv0100-165
- Unopposed Emergency Motion for Temporary Stay of the Court’s November 15, 2022, Order, Nov. 15, 2022. https://storage.courtlistener.com/recap/gov.uscourts.dcd.225870/gov.uscourts.dcd.225870.166.0.pdf
- “Judge Blocks Title 42 Limits at Border,” Politico, Nov. 15, 2022. https://www.politico.com/news/2022/11/15/immigration-judge-blocks-title-42-limits-00067083
- “Federal Judge Blocks Title 42 Rule That Allowed Expulsion of Migrants at U.S.-Mexico Border, Puts Order on Hold for 5 Weeks,” CNN, Nov. 16, 2022. https://www.cnn.com/2022/11/15/politics/title-42-migrants/index.html
- DHS statement, Nov. 15, 2022. https://www.dhs.gov/news/2022/11/15/statement-dhs-decision-regarding-title-42
Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges
The Department of State’s (DOS) Office of Inspector General (OIG) released its annual statement on November 18, 2022, on DOS’s major management and performance challenges. The latest report noted that OIG’s recent review of the Bureau of Consular Affairs’ ConsularOne Modernization Program found:
[I]n the 10 years since the program began in 2011, the responsible office had conducted a very limited pilot of just one component of the program—the customer-facing portion of the electronic Consular Report of Birth Abroad—and had continued to miss deployment dates for other components. Initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, the program has experienced deficiencies and delays with profound implications for the bureau’s three fundamental responsibilities: the issuance of passports and other documentation to citizens and nationals, the protection of U.S. border security and facilitation of legitimate travel to the United States, and ensuring the welfare and protection of U.S. citizens abroad.
OIG’s review this year found that the program’s leadership “was unable to provide a clear, uniform definition of the ConsularOne program, what components it included, and which contracts supported the program, creating confusion for stakeholders.” This lack of clarity “hindered leadership’s oversight of the modernization effort and the ability to hold staff accountable for their performance.”
- Inspector General Statement on the Department of State’s Major Management and Performance Challenges, Fiscal Year 2022, https://www.stateoig.gov/uploads/report/reportpdffile/oigex2302.pdf
USCIS Releases Tips on Avoiding Paper Filing-Related Delays
On November 16, 2022, U.S. Citizenship and Immigration Services (USCIS) released tips to avoid paper filing-related scanning delays. USCIS said it scans and uploads many documents into electronic database systems as it moves toward an increasing electronic environment.
Examples of practices to avoid include attaching documents together with staples, paper clips or other methods; folding documents; using insertable tab dividers; submitting multiple copies unless required; and sending original documents unless required, among other tips.
- USCIS alert, Nov. 16, 2022. https://www.uscis.gov/newsroom/alerts/recommendations-for-paper-filings-to-avoid-scanning-delays
State Dept. Announces Diversity Visa Reassignment Procedures for Kabul
The Department of State announced on November 18, 2022, that all operations are suspended at the U.S. Embassy in Kabul, Afghanistan. Diversity visa (DV) selectees for the 2023 DV program year with a case assigned to U.S. Embassy Kabul should request reassignment to another embassy or consulate that processes DV applications. The selectee must be physically present in the consular district where the embassy or consulate is located at the time of the interview and have permission and the ability to remain in that country for a period sufficient to complete processing of the visa application.
To request reassignment, the DV selectee should e-mail the Kentucky Consular Center (KCC) at KCCDV@state.gov with the subject line “Kabul Reassignment Request.” The email should include: (1) full name, (2) date of birth, (3) case number, and (4) name of the embassy or consulate where the selectee would like the case to be reassigned. After KCC reviews the request, the selectee will receive an email confirmation that the reassignment request was successful or, alternatively, requesting more information.
Those who are unable to travel to the embassy or consulate where the appointment has been scheduled may contact another U.S. embassy or consulate that processes DV applications to request a transfer.
- Diversity Visa Reassignment Procedures for Kabul, Dept. of State, Nov. 18, 2022, https://travel.state.gov/content/travel/en/News/visas-news/diversity-visa-reassignment-procedures-for-kabul.html
- For more information on visa processing at specific posts, see https://www.usembassy.gov/ and review the page for the visa section of the relevant U.S. embassy or consulate.
- DV Entrant Status Check, https://dvprogram.state.gov/
Labor Dept. Announces H-2A Visa Program Listening Sessions
In conjunction with the Department of Labor’s (DOL) previously announced intention to engage in additional rulemaking on the H-2A visa program for temporary agricultural employment of foreign workers, DOL is offering two virtual listening sessions, one for employers and their representatives and another for workers and their advocates, to gather input about the possible changes to the H-2A regulations.
The sessions are open to the public. The employers/representatives’ listening session will be held Tuesday, November 29, 2022, from 3 to 4 p.m. ET. The workers/advocates listening session will be held Wednesday, November 30, 2022, from 7 to 8:30 p.m. ET. Registrants will be emailed a Zoom link one day before the event begins. Questions should be emailed to WHD-Events@dol.gov.
- DOL announcement, Nov. 17, 2022. https://www.dol.gov/agencies/eta/foreign-labor
- Employers/representatives session registration. https://www.eventbrite.com/e/h-2a-regulations-listening-session-for-employers-registration-454006905877
- Workers/advocates session registration. https://www.eventbrite.com/e/h-2a-regulations-listening-session-for-workers-registration-453908441367
OFLC Releases Public Disclosure Data, Selected Program Statistics, H-2B Foreign Labor Recruiter List for Q4 of FY 2022
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released:
- A comprehensive set of public disclosure data through the final quarter of fiscal year (FY) 2022 drawn from employer applications requesting prevailing wage determinations and labor certifications for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs. The public disclosure files include all final determinations OFLC issued for these programs during the October 1, 2021 through September 30, 2022 reporting period of fiscal year 2022.
- Selected program statistics for the second quarter of fiscal year 2022 for the PERM, LCA (H-1B, H-1B1, E-3), H-2A, H-2B, CW-1, and Prevailing Wage programs.
- An updated list of the names of foreign labor recruiters for the H-2B program.
- OFLC notices, Nov. 15, 2022. https://www.dol.gov/agencies/eta/foreign-labor
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.