IMMIGRATION UPDATE 7.25.2023

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IMMIGRATION UPDATE 7.25.2023

IMMIGRATION UPDATE – July, 2023

BREAKING NEWS

 

Revised I-9 Form Expected August 1Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security related to temporary COVID-19 flexibilities.   See DETAILS below.

HEADLINES

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

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

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

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

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

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

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

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

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

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

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

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

 

DETAILS

Revised I-9 Form Expected August 1

On August 1, 2023, U.S. Citizenship and Immigration Services (USCIS) will publish a revised version of Form I-9, Employment Eligibility Verification. Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS) related to temporary COVID-19 flexibilities. Under the alternative procedure, the employer must examine and retain copies of documents and must conduct a live video interaction with the employee.

Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023) may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023, USCIS said.

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

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

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

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

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

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

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

USCIS Updates Policy Manual on Public Charge Inadmissibility Ground

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

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

DHS Reduces Brunei ESTA Validity Period

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

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

DHS Adds Eight Qualifying Fields to STEM Designated Degree Program List

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

The eight added fields and CIP codes are:

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

The list is used to determine whether a degree obtained by certain F-1 nonimmigrant students following the completion of a program of study qualifies as a science, technology, engineering, or mathematics (STEM) degree as determined by DHS, as required for the F–1 student to be eligible to apply for a 24-month extension of post-completion optional practical training (OPT).

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

August Visa Bulletin Announces Retrogressions in Several Categories

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

  • Establishment of Worldwide employment-based first preference (EB-1) final action date. An EB-1 final action date will be established for Rest of World countries, Mexico, and Philippines in August. Rest of World countries, Mexico, and Philippines will be subject to a final action date of 01AUG23. It is likely that in October the category will return to “Current” for these countries.
  • Retrogression in employment-based first preference (EB-1) for India. The EB-1 final action date for India will retrogress in August. India will be subject to an EB-1 final action date of 01JAN12. It is likely that in October the final action date will advance.
  • Retrogression in employment-based third preference (EB-3) for Rest of World countries, Mexico, and Philippines. The Rest of World, Mexico, and Philippines EB-3 final action dates will retrogress in August to 01MAY20.
  • Department of State’s Visa Bulletin (August 2023). https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-august-2023.html

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

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

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

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

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

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

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

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

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

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

Labor Dept. Publishes Round 2 FAQ on AEWR Rule

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

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

State Dept. Clarifies India EB-3 Retrogression in July

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

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

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

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

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

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

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

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

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

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

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

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

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

DHS Updates ESTA Guidance re Cuba-Related VWP Travel Restrictions

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

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

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


IMMIGRATION AGENCY INFORMATION/PROCESSING TIMES

U.S. Customs and Border Protection:          

Accessing I-94 Information: https://i94.cbp.dhs.gov/I94/#/home

I-9/ E-Verify webinar schedule:  https://www.e-verify.gov/calendar-field_date_and_time/month

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/

AGENCY TWITTER ACCOUNTS

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

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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.

 

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