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IMMIGRATION UPDATE 8.16.2022

IMMIGRATION UPDATE 8.16.2022

IMMIGRATION UPDATE – August 16, 2022

HEADLINES

USCIS

Visa Bulletin for September Notes ‘Steady Increase’ in Demand for Employment-Based Visas – The Department of State’s (DOS) Visa Bulletin for September notes a steady increase in both U.S. Citizenship and Immigration Services and Department of State demand patterns for employment-based visas during the fiscal year.

DHS Issues Final Rule Changing NAFTA to USMCA – The Department of Homeland Security issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement with references to the Agreement Between the United States of America, the United Mexican States, and Canada.

USCIS Will No Longer Accept Combined Fee Payments for EB-5 Applications/Petitions – Beginning September 1, 2022, U.S. Citizenship and Immigration Services will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 applications or petitions with related forms.

USCIS Extends Certain COVID-19 Flexibilities – U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through October 23, 2022.

New STEM Resources Released – Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics in the United States.

Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions – Being named on a competitive government grant for STEM research can be a positive factor in demonstrating that a beneficiary is at the top of their field, USCIS said.

USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions – Similar to the first phase of the expansion, this phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver

New EB-5 Immigrant Investor Forms Released – U.S. Citizenship and Immigration Services has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022. The form is split into two versions: I-526, Immigrant Petition by Standalone Investor, and I-526E, Immigrant Petition by Regional Center Investor. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000.

 

I-9/ E-VERIFY

E-Verify Updates Initial Enrollment Process – The updates include new screens and requirements to ensure consistency with other pages in E‑Verify.

USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted – If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must have updated their I-9 forms by July 31, 2022.

SSA Resumes Normal E-Verify Timeframes – Employees whose E‑Verify cases are referred to the Social Security Administration (SSA) on or after that date now have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

USCIS Releases New I-9 Guidance for Employers of E and L Nonimmigrants – USCIS has published new guidance on Form I-9, Employment Authorization Verification, related to employees with E and L nonimmigrant status in its Handbook for Employers (M-274, Section 6.9, Other Temporary Workers).

 

DEPARTMENT OF STATE

Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits – Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.

 

DEPARTMENT OF LABOR

Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers – Sens. Amy Klobuchar and Susan Collins sent a letter to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.

Labor Dept. Releases FAQ on Process for Requesting Support for Immigration-Related Prosecutorial Discretion for Workers Involved in Labor Disputes – The Department of Labor released frequently asked questions on the process for requesting DOL support for requests to the Department of Homeland Security for immigration-related prosecutorial discretion during labor disputes.

 

GLOBAL IMMIGRATION

ABIL Global: Schengen Area – What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

 

REGULATORY/ LEGISLATIVE

DHS, DOL Publish Semiannual Regulatory Agendas – The agendas give an overview of what the agencies are considering during the upcoming one-year period.

House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances – Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual defense bill.

 

EOIR

EOIR Warns of Scammers Spoofing Agency Phone Number – In this scam, fraudulent callers posing as Executive Office for Immigration Review employees or officers advise individuals that their social security number has been compromised and request money from the victims.

EOIR Announces 19 New Immigration Judges – The Executive Office for Immigration Review appointed 19 new immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

 

ASYLUM / REFUGEE/ TPS

COVID-19 Vaccination Requirements Updated for Ukraine Parolees – All beneficiaries under the Uniting for Ukraine program aged 6 months and older must submit an attestation that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States, unless they are eligible for an exception.

Certain Afghan Parolees to Receive Notices of EAD Extension – Certain Afghan parolees will receive notices indicating that the Department of Homeland Security is extending the validity of their employment authorization documents to align with the parole period shown on their Arrival/Departure Records.

DHS Extends and Re-designates Syria for TPS, Suspends Certain Requirements for Syrian F-1 Students – DHS is extending the designation of Syria for temporary protected status (TPS) through March 31, 2024. DHS is also re-designating Syria for TPS. Also, effective October 1, 2022, until April 1, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria.

Some Parolees Can Now File Employment Authorization Applications Online – Certain parolees can now file Form I-765, Application for Employment Authorization, online, U.S. Citizenship and Immigration Services announced.

100,000 Ukrainians Admitted to United States in July – According to reports, as part of what’s being called the largest refugee exodus since World War II, more than 100,000 Ukrainians who fled the Russian invasion of their country have been admitted into the United States, mostly in temporary statuses.

USCIS Updates Guidance for Afghans and Iraqis Seeking Special Immigrant Classification – Among other things, the guidance clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish to show that they provided faithful and valuable service to the U.S. government.

DHS Extends TPS Designation for Venezuela – The Department of Homeland Security has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Approximately 343,000 individuals are estimated to be eligible for TPS under the existing designation of Venezuela.

DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation – Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States, extended from within 14 days of arrival.

USCIS Rescinds Decision on Agency Interpretation of Authorized Travel by TPS Beneficiaries – Among other things, USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries but will instead provide a new TPS travel authorization document.

 

ENFORCEMENT

ICE Plans Pilot of Photo IDs for Migrants Awaiting Deportation Proceedings – According to reports, U.S. Immigration and Customs Enforcement is developing a pilot program to issue photo ID cards to migrants awaiting deportation proceedings. The cards would not serve as a federal ID for other purposes.

 

DETAILS

 

Visa Bulletin for September Notes ‘Steady Increase’ in Demand for Employment-Based Visas

The Department of State’s (DOS) Visa Bulletin for September notes a steady increase in both U.S. Citizenship and Immigration Services and Department of State demand patterns for employment-based visas during the fiscal year. As a result, the Department expects that most employment-based preference category limits and/or the overall employment-based preference limit for FY 2022 to be reached during September. If the annual limit were reached, “it would be necessary to immediately make the preference category ‘unavailable,’ and no further requests for numbers would be honored,” the bulletin states.

For adjustment of status filing dates for September 2022, the Final Action Dates chart in the Visa Bulletin must be used for employment-based preference categories.

The bulletin also notes that the worldwide employment-based preference numerical limit for FY 2022 is 281,507.

 

E-Verify Updates Initial Enrollment Process

E-Verify notified users via email on August 11, 2022, that it has updated the Initial Enrollment process. The updates include new screens and requirements to ensure consistency with other pages in E‑Verify. As a result, several changes affect users:

  • Anyone enrolling a company in E‑Verify will have to set up a temporary user account to complete the enrollment process. This person is called the Enrollment Point of Contact (POC). The Enrollment POC is a different role from the POC on the E‑Verify account and can only access E‑Verify to complete a company enrollment.
  • The person identified as the Memorandum of Understanding (MOU) signatory will become the E‑Verify POC. Program Administrators added during enrollment will not become E‑Verify POCs.
  • Corporate Administrators are not required to sign an MOU. As a result, the Corporate Administrator user will be the E‑Verify POC.

–       Only one Corporate Administrator user can be added during the enrollment process.

 

COVID-19 Vaccination Requirements Updated for Ukraine Parolees

The Department of Homeland Security (DHS) has updated the COVID-19 vaccination requirements for beneficiaries paroled into the United States under the “Uniting for Ukraine” program. Effective August 10, 2022, all beneficiaries aged 6 months and older must submit an attestation that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States, unless they are eligible for an exception.

Previously, beneficiaries younger than five years old qualified for an exception to the COVID-19 vaccination requirement because the vaccine was not approved or licensed for use in that age group.

 

DHS, DOL Publish Semiannual Regulatory Agendas

On August 8, 2022, the Departments of Homeland Security (DHS) and Labor (DOL) published their semiannual regulatory agendas, which summarize projected and existing regulations. The agendas give an overview of what the agencies are considering during the upcoming one-year period. Below are selected highlights:

  • Among other things, DHS plans to propose adjusting the fees charged by U.S. Citizenship and Immigration Services (USCIS) for immigration and naturalization benefit requests. On August 3, 2020, DHS adjusted the fees, imposed new fees, revised certain fee waiver and exemption policies, and changed certain application requirements via a rule. DHS was preliminarily enjoined by court order from implementing that rule. This rule would rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees.
  • Also, DOL’s Employment and Training Administration and Wage and Hour Division, and DHS/USCIS, plan to jointly propose to amend H-2B nonimmigrant visa program regulations. The proposed rule would establish standards and procedures for employees seeking to hire foreign temporary nonagricultural workers for certain itinerant job opportunities, including entertainers and carnivals and utility regulation management.

o  Unified Agenda of Federal Regulatory and Deregulatory Actions, Dept. of Homeland Security, 87 Fed. Reg. 48294 (Aug. 8, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-08/pdf/2022-14604.pdf

o  Semiannual Agenda of Regulations, Dept. of Labor, 87 Fed. Reg. 48308 (Aug. 8, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-08/pdf/2022-14607.pdf

 

EOIR Warns of Scammers Spoofing Agency Phone Number

The Executive Office for Immigration Review (EOIR) announced that it has recently been notified of phone calls that spoof the Arlington Immigration Court as part of a misinformation campaign. The callers often “spoof,” or fake, the immigration court’s main line, 703-305-1300, so the calls appear to be coming from EOIR on the recipient’s caller ID.

In this scam, fraudulent callers posing as EOIR employees or officers advise individuals that their social security number has been compromised and request money from the victims.

Questions about individual immigration court cases may be directed to the Automated Case Information Hotline at 1-800-898-7180, the Automated Case Information System, or the Immigration Court Online Resource.

 

Certain Afghan Parolees to Receive Notices of EAD Extension

U.S. Citizenship and Immigration Services (USCIS) announced that certain Afghan parolees will receive a Form I-797C, Notice of Action, indicating that the Department of Homeland Security (DHS) is extending the validity of their Form I-766, Employment Authorization Document (EAD), to align with the parole period shown on their Form I‑94, Arrival/Departure Record.

USCIS explained that during Operation Allies Welcome, many Afghans who arrived as part of the evacuation efforts were paroled into the United States. Many applied for and received EADs. Certain EADs with a validity period of less than two years are now being automatically extended to align with the parole period shown on the beneficiary’s I-94. Affected beneficiaries will receive an I‑797C indicating that DHS is extending that individual’s EAD to align with the parole period shown on their Form I‑94.

 

USCIS Will No Longer Accept Combined Fee Payments for EB-5 Applications/Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that beginning September 1, 2022, it will no longer accept a single, combined fee payment when an applicant or petitioner files EB-5 immigrant investor applications or petitions with related forms. If a petitioner or applicant submits a single, combined fee payment for the forms listed below, USCIS will reject the forms for improper fee payment and return the fee.

Specifically, USCIS will no longer accept combined payments when an immigrant investor files Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, together with Form I-485, Application to Register Permanent Residence or Adjust Status; Form I-131, Application for Travel Document; or Form I-765, Application for Employment Authorization.

 

ICE Plans Pilot of Photo IDs for Migrants Awaiting Deportation Proceedings

According to reports, U.S. Immigration and Customs Enforcement (ICE) is developing a pilot program to issue photo ID cards to migrants awaiting deportation proceedings. The cards would not serve as a federal ID for other purposes.

The program is pursuant to the Biden administration’s request for $10 million for the “ICE Secure Docket Card” program in next fiscal year’s budget. An ICE spokesperson said, “Moving to a secure card will save the agency millions, free up resources, and ensure information is quickly accessible to DHS officials while reducing the agency’s [Freedom of Information Act] backlog.”

Some House Republicans are “probing” the “reckless” plan, citing worries that the ID cards would be used to “improperly access benefits such as housing, healthcare, and transportation,” among other concerns. In a letter to ICE Acting Director Tae Johnson, the Republican lawmakers have requested a briefing and all documents related to the ICE Secure Docket Card program.

 

EOIR Announces 19 New Immigration Judges

The Department of Justice’s Executive Office for Immigration Review (EOIR) appointed 19 new immigration judges (IJs) to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

EOIR said it continues to work to expand its IJ corps and “welcomes qualified candidates from all backgrounds to join the agency.”

 

USCIS Extends Certain COVID-19 Flexibilities

U.S. Citizenship and Immigration Services (USCIS) is extending certain COVID-19-related flexibilities through October 23, 2022. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and October 23, 2022, inclusive:

  • Requests for Evidence
  • Continuations to Request Evidence (N-14)
  • Notices of Intent to Deny, Revoke, Rescind, Terminate (regional center), or Withdraw Temporary Protected Status
  • Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:

  • The form was filed up to 90 calendar days from the issuance of a decision by USCIS; and
  • USCIS made that decision between November 1, 2021, and October 23, 2022, inclusive.

USCIS also said it has been evaluating which flexibilities should be extended permanently. As a result of this evaluation, the reproduced signature flexibility announced in March 2020 became permanent policy on July 25, 2022. Under that policy, a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, USCIS will accept electronically reproduced original signatures. Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature, USCIS said. USCIS may request the original documents at any time, and failure to do so “could negatively impact the adjudication of the immigration benefit.”

Details:

 

DHS Extends and Re-designates Syria for TPS, Suspends Certain Requirements for Syrian F-1 Students

The Department of Homeland Security (DHS) announced several measures to provide relief to Syrians in the United States, summarized below.

 

Temporary Protected Status Extended, Re-designated

DHS is extending the designation of Syria for temporary protected status (TPS) for 18 months, effective October 1, 2022, through March 31, 2024. DHS is also re-designating Syria for TPS.

Extension. The extension allows existing TPS beneficiaries to retain TPS through March 31, 2024, as long as they otherwise continue to meet the eligibility requirements. Existing TPS beneficiaries who wish to extend their status through March 31, 2024, must re-register during the 60-day re-registration period, which begins on the date of publication of the notice in the Federal Register. As of press time, the notice was expected to be published on August 1, 2022.

Re-designation. The resignation of Syria allows additional Syrian nationals (and individuals having no nationality who last habitually resided in Syria) who have been continuously residing in the United States since July 28, 2022, to apply for TPS for the first time during the initial registration period. In addition to demonstrating continuous residence in the United States since July 28, 2022, and meeting other eligibility criteria, initial applicants for TPS under this designation must demonstrate that they have been continuously physically present in the United States since October 1, 2022.

DHS said the extension of TPS for Syria allows approximately 6,448 current beneficiaries to retain TPS through March 31, 2024, if they meet TPS eligibility requirements. Approximately 960 additional individuals may be eligible for TPS under the resignation, DHS noted.

 

Certain Requirements Suspended for Syrian F-1 Students

Effective October 1, 2022, until April 1, 2024, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Syria, regardless of country of birth (or individuals having no nationality who last resided in Syria), and who are experiencing severe economic hardship as a direct result of the civil war in Syria. Eligible Syrian students may request employment authorization, work an increased number of hours while school is in session, and reduce their course load while continuing to maintain their F-1 nonimmigrant student status. DHS said it will deem an F–1 nonimmigrant student who receives employment authorization by means of the notice “to be engaged in a ‘full course of study’ for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement” as described in the notice.

 

Some Parolees Can Now File Employment Authorization Applications Online

Certain parolees can now file Form I-765, Application for Employment Authorization, online, U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2022. Effective immediately, eligible individuals paroled into the United States for urgent humanitarian or significant public benefit purposes under INA § 212(d)(5) who are eligible to seek work authorization under category (c)(11) can file Form I-765 online, with limited exceptions.

Those seeking a waiver of the filing fee or who are eligible for a fee exemption must still file the I-765 by mail.

 

100,000 Ukrainians Admitted to United States in July

According to reports, as part of what’s being called the largest refugee exodus since World War II, more than 100,000 Ukrainians who fled the Russian invasion of their country have been admitted into the United States, mostly in temporary statuses.

Included are approximately 47,000 on temporary visas, including tourist visas; 30,000 under the “Uniting for Ukraine” program, which includes humanitarian parole; and 22,000 paroled in at the U.S.-Mexico border. Five hundred entered the United States via the refugee system.

 

New STEM Resources Released

Several entities have released new resources on research and options for noncitizens in the fields of science, technology, engineering, and mathematics (STEM) in the United States:

 

USCIS Reminds Employers That Only Unexpired I-9 List B Documents Are Accepted

U.S. Citizenship and Immigration Services (USCIS) reminded employers that the Department of Homeland Security (DHS) ended the temporary flexibility related to accepting expired List B documents for Form I-9 employment eligibility verification purposes. DHS explained that it adopted the temporary policy in response to the difficulties many individuals experienced with renewing documents during the COVID-19 pandemic, but document-issuing authorities have reopened and/or provided alternatives to in-person renewals. If a current employee presented an expired List B document between May 1, 2020, and April 30, 2022, employers must have updated their I-9 forms by July 31, 2022.

 

Guidance Updated on Evidence to Support STEM-Related O-1 Extraordinary Ability Nonimmigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) updated its guidance on evidence that can be used to support a petition for an O-1A nonimmigrant of extraordinary ability with a focus on science, technology, engineering, and mathematics (STEM) fields.

USCIS clarified that “being named on a competitive government grant for STEM research can be a positive factor toward demonstrating that a beneficiary is at the top of their field. This evidence is added to the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability in the STEM fields.”

 

Reports: Record-High Delays in Visa Interviews and Backlogs Lead to Lawsuits

According to reports, due to visa interview wait times and backlogs reaching new highs, thousands of lawsuits have been filed. Tourists and business visitors wishing to travel to the United States are waiting more than six months to schedule visa interviews or process renewals at most consulates, and the wait for some visa interviews is more than a year. Wait times vary significantly, depending on the consulate.

U.S. Citizenship and Immigration Services (USCIS) acknowledged the increase in delays and backlogs in recent years and blamed the problems on the COVID-19 pandemic and resource constraints, including a drop in paperwork submissions with fees and a staff hiring freeze under the previous administration. USCIS released a public statement in March 2022 outlining steps the agency is taking to address the issues, including targeting processing backlogs, expanding premium processing, and improving access to employment authorization documents. A USCIS spokesperson said the agency expects to resolve related processing issues and reach a 95 percent hiring target by the end of 2022.

 

USCIS Updates Guidance for Afghans and Iraqis Seeking Special Immigrant Classification

USCIS updated guidance regarding Afghan and Iraqi nationals seeking special immigrant classification. Effective immediately, the new guidance:

  • Explains that noncitizens seeking an Afghan Special Immigrant Visa (SIV) on or after July 20, 2022, must file Form DS-157, Petition for Special Immigrant Classification for Afghan SIV Applicants, with the Department of State when they are applying for Chief of Mission approval. In some circumstances, noncitizens must still file a petition with USCIS to pursue an Afghan SIV;
  • Updates eligibility criteria to reflect that the employment requirement for an Afghan SIV is now one year and clarifies what type of employment with the International Security Assistance Force qualifies;
  • Updates eligibility criteria for surviving spouses and children of deceased principal noncitizens to expand the scope of who may apply for Afghan and Iraqi SIVs;
  • In cases where a visa is not immediately available, removes the date limitation to convert an approved petition for an Afghan or Iraqi translator or interpreter to an approved petition for an Iraqi or Afghan employed by or on behalf of the U.S. government; and
  • Clarifies statutory requirements that a noncitizen seeking an Afghan or Iraqi SIV must establish that they provided faithful and valuable service to the U.S. government by submitting a positive recommendation or evaluation from their supervisor.
  • USCIS alert, July 20, 2022, https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-for-afghans-and-iraqis-seeking-special-immigrant-classification

 

USCIS To Implement Second Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions

On July 15, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is implementing the second phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Similar to the first phase of the expansion, this phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.

Beginning August 1, 2022, USCIS will accept Form I-907 requests for:

  • E13 multinational executive and manager petitions received on or before July 1, 2021; and
  • E21 NIW petitions received on or before August 1, 2021.

USCIS will reject premium processing requests for these Form I-140 classifications if the receipt date is after the dates listed above. USCIS has 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications. The agency said it will not accept new (initial) Forms I-140 with a premium processing request now.

On May 24, 2022, USCIS published a new version of Form I-907, dated 05/31/22. As of July 1, the agency is no longer accepting the older 09/30/20 edition of Form I-907.

 

House Updates: STEM Measure Fails, ‘Documented Dreamers’ Advances

Several immigration-related proposals were among more than a thousand amendments proposed for the House of Representatives’ Rules Committee to consider as additions to the annual National Defense Authorization Act (H.R. 7900):

  • A measure to streamline the path to a green card for immigrants with doctorates in science, technology, engineering, and mathematics (STEM) fields failed as the Rules Committee deemed it “out of order” for consideration as an amendment to the defense bill. According to reports, other efforts to find a way to advance it also stalled in negotiations.
  • However, a proposal to admit experts in science and technology for national security-related reasons will receive a vote on the House floor. The proposal appears to be limited to 10 experts per year to be selected by the Department of Defense.
  • Also advancing to the House floor is a measure to ensure that “documented Dreamers,” who are dependents of foreign workers or applicants for permanent residence (green cards), won’t age out of legal status when they turn 21.
  • Another amendment that advanced would exempt Afghan students from having to show nonimmigrant intent when they apply for student visas to the United States.
  • “Immigration Measure for STEM Workers Adrift After Defense Flop,” Bloomberg Law, July 13, 2022, https://bit.ly/3PddJAR

 

DHS Extends TPS Designation for Venezuela

The Department of Homeland Security has extended Venezuela’s temporary protected status (TPS) designation for 18 months, effective September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension. Venezuelans who arrived in the United States after March 8, 2021, are not eligible. Approximately 343,000 individuals are estimated to be eligible for TPS under the existing designation of Venezuela.

A forthcoming Federal Register notice will provide instructions for re-registering for TPS and applying to renew an employment authorization document (EAD). Venezuelans who are currently eligible for TPS under the existing designation but have not yet applied with U.S. Citizenship and Immigration Services (USCIS) should file their applications before the September 9, 2022, application deadline, including those Venezuelans who are covered under the January 2021 grant of Deferred Enforced Departure (DED), USCIS said. Venezuela’s DED is set to expire July 20, 2022.

 

New EB-5 Immigrant Investor Forms Released

U.S. Citizenship and Immigration Services (USCIS) has revised Form I-526, Immigrant Petition by Alien Entrepreneur, to accommodate the EB-5 Reform and Integrity Act of 2022, which made significant changes to the filing and eligibility requirements for investors under the EB-5 program. The form is now split into two versions:

  • Form I-526, Immigrant Petition by Standalone Investor, is to be used by “standalone immigrant investors who are not seeking to pool their investment with additional investors seeking EB-5 classification.” It closely resembles the prior edition of Form I-526.
  • Form I-526E, Immigrant Petition by Regional Center Investor, is to be used by “immigrant investors who are seeking to pool their investment with one or more additional investors seeking EB-5 classification under the new regional center program.”

Form I-526E “reflect[s] elements of the new regional center program, including the ability to incorporate evidence by reference from a regional center’s Form I-956F,” USCIS said.

As of July 12, 2022, Forms I-526 and I-526E must be submitted in compliance with new program requirements, USCIS said. The filing fee is $3,675 for each form. Those who file Form I-526E on or after October 1, 2022, will need to pay an additional $1,000, required by the EB-5 Reform and Integrity Act of 2022. This additional amount does not apply to an amendment request. A separate biometric services fee of $85 is also required for each petitioner submitting an initial I-526E petition. The biometric services fee is not required for petitions filing the I-526 to amend a previously filed petition.

 

Senators Send Letter to Labor Secretary on Delays in Prevailing Wage Determinations for Foreign Workers

U.S. Senators Amy Klobuchar and Susan Collins sent a letter on July 7, 2022, to Secretary of Labor Martin J. Walsh asking about steps the Department of Labor (DOL) is taking to address delays in the processing of prevailing wage determinations for immigrant and nonimmigrant visas.

They noted that the H-1B, H-2B, and employment-based visa programs all require DOL to conduct prevailing wage determinations to ensure that hiring foreign workers will not negatively affect the wages and working conditions of U.S. employees in similar positions. As of May, the senators pointed out, some employers who filed applications for prevailing wage determinations in November were still waiting for their applications to be processed. “These delays make it hard for businesses to have the confidence that they will have the workers they need,” the senators said. “This is especially true for seasonal businesses that have a small window of time where they can make all the revenue they need for the entire year. Delays of even a few days can have devastating impacts on their ability to stay open.”

The senators asked for answers to their questions by July 29, 2022.

 

DHS Extends Timeframe for Ukrainian Parolees To Comply With Medical Screening and Attestation

The Department of Homeland Security (DHS) has extended the timeframe beneficiaries paroled into the United States under the “Uniting for Ukraine” program have to attest to their compliance with medical screening for tuberculosis and additional vaccinations, if required. Beneficiaries paroled into the United States under Uniting for Ukraine must complete their medical attestations within 90 days of arrival in the United States. Previously, such beneficiaries had to complete the medical screening and attestation within 14 days of arrival.

The attestation is a condition of parole and must be completed in the beneficiary’s USCIS online account. Beneficiaries are responsible for arranging their vaccinations and medical screening for tuberculosis, including an Interferon-Gamma Release Assay (IGRA) blood test, DHS said.

 

SSA Resumes Normal E-Verify Timeframes

E-Verify announced that as of July 15, 2022, employees whose E‑Verify cases are referred to the Social Security Administration (SSA) have the normal eight federal working days to contact their local SSA office to begin resolving the mismatch.

At the onset of the COVID-19 pandemic in March 2020, E‑Verify extended the timeframe for an employee to take action to resolve a Tentative Nonconfirmation (mismatch). For E‑Verify cases referred on or after July 15, 2022, E‑Verify is no longer providing extended timeframes for employees to visit SSA to resolve these mismatches. However, E‑Verify cases referred between March 2, 2020, to July 14, 2022, with an SSA mismatch still had an extended timeframe to be resolved, E-Verify said.

 

Labor Dept. Releases FAQ on Process for Requesting Support for Immigration-Related Prosecutorial Discretion for Workers Involved in Labor Disputes

On July 6, 2022, the Department of Labor (DOL) released frequently asked questions (FAQ) on the process for requesting DOL support for requests to the Department of Homeland Security (DHS) for immigration-related prosecutorial discretion during labor disputes.

The FAQ states that DOL considers such requests on a case-by-case basis. DOL remains open to requests from workers to express DOL support for their requests to DHS seeking immigration-related prosecutorial discretion. The FAQ notes:

[W]orkers must feel free to participate in the Department’s investigations and proceedings without fear of retaliation or immigration-related consequences. DOL’s mission and effective enforcement depends on the cooperation of workers. However, vulnerable workers who lack work authorization or sufficiently ‘portable’ immigration status are often reluctant to report violations, engage with government enforcement agencies, or otherwise exercise their rights. For example, undocumented workers who experience labor law violations may fear that cooperating with an investigation will result in the disclosure of their immigration status or that of family members, or that it will result in immigration-based retaliation from their employers and adverse immigration consequences for themselves or their family. As a result, both workers and the Department face barriers to equitable and effective enforcement of workplace rights and protections, and the many employers that adhere to labor and employment laws face unfair competition.

DOL has long supported prosecutorial discretion on a case-by-case basis, to further enforcement of laws within DOL’s jurisdiction.

 

USCIS Rescinds Decision on Agency Interpretation of Authorized Travel by TPS Beneficiaries

On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it has rescinded its designation of the Administrative Appeals Office (AAO) decision in Matter of Z-R-Z-C-2 as an Adopted Decision and updated its interpretation of the effects of authorized travel by temporary protected status (TPS) beneficiaries. The memorandum notes, among other things:

  • USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries, but will instead provide a new TPS travel authorization document. This document will serve as evidence that the bearer may be inspected and admitted into TPS pursuant to the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA) if all other requirements are met.
  • TPS beneficiaries whom DHS has inspected and admitted into TPS under MTINA, subsequent to that inspection and admission, will have been “inspected and admitted” and are “present in the United States pursuant to a lawful admission,” including for purposes of adjustment of status under INA § 245 for a green card. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.
  • In adjudicating an application for adjustment of status, or any other benefit request where relevant, USCIS will consider whether to apply this guidance to travel undertaken by the applicant before the issuance of this memorandum. This consideration will include a case-by-case review of any reliance on the prior policy, applicable law, and any other relevant factors. Additionally, to be eligible for consideration under this guidance, past travel must meet each of the following requirements:

–       The noncitizen obtained prior authorization to travel abroad temporarily on the basis of being a TPS beneficiary;

–       The noncitizen’s TPS was not withdrawn or the designation for their foreign state (or part of a foreign state) was not terminated or did not expire during their travel;

–       The noncitizen returned to the United States in accordance with the authorization to travel; and

–       Upon return, the noncitizen was inspected by DHS or the former Immigration and Naturalization Service (INS) at a designated port of entry and paroled or otherwise permitted to pass into the territorial boundaries of the United States in accordance with the TPS-based travel authorization.

 

USCIS Releases New I-9 Guidance for Employers of E and L Nonimmigrants

U.S. Citizenship and Immigration Services has published new guidance on Form I-9, Employment Authorization Verification, related to employees with E and L nonimmigrant status in its Handbook for Employers (M-274, Section 6.9, Other Temporary Workers).

 

DHS Issues Final Rule Changing NAFTA to USMCA

The Department of Homeland Security (DHS) issued a final rule relating to the temporary entry of Canadian and Mexican citizen business persons into the United States. The final rule replaces references to the North American Free Trade Agreement (NAFTA) with references to the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA).

The USMCA superseded NAFTA and its related provisions on July 1, 2020. Chapter 16 of the USMCA “generally maintains the same treatment as provided under NAFTA with respect to the temporary entry of Canadian and Mexican citizen business persons,” DHS said. The final rule “makes other minor, non-substantive conforming amendments and stylistic changes and corrects typographical errors.”

 

ABIL Global: Schengen Area

What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

 

The new automated Entry/Exit System (EES)

The Entry/Exit System (EES) is an automated IT system for registering travelers from third countries, both short-stay visa holders and visa-exempt travelers, each time they cross an EU external border. The EES will replace the current system of manual stamping of passports, which does not allow for the systematic detection of overstayers (travelers who have exceeded the maximum duration of their authorized stay).

It is expected to be operational in 2022 (starting date to be confirmed). The system will register the person’s name, type of travel document, biometric data (fingerprints and captured facial images), and date and place of entry and exit.

The EES is intended to contribute to preventing irregular migration and to identifying overstayers more efficiently (and automatically) as well as cases of document and identity fraud.

 

European Travel Information and Authorization System

Starting in May 2023, non-European Union (EU) nationals who do not need a visa to travel to the Schengen Area will need to apply for travel authorization through the European Travel Information and Authorization System (ETIAS) before their trip. The system aims to carry out pre-travel screening for security and migration risks of visa-exempt visitors and will be a mandatory pre-condition for entry to the Schengen States. Applicants will file an online application form, and the system will issue travel authorization in most cases within minutes or, where further checks on the traveler are needed, within 30 days. Applicants will need to submit information to answer questions about the Member State of their first intended stay, the purpose of their trip, background relating to previous criminal records, presence in conflict zones, and orders to leave the territory of a Member State or third countries. The applicant must report any criminal offense listed over the previous 10 years and, in the case of terrorist offenses, over the previous 20 years, including when and in which country.

 

I-94/E-VERIFY WEBINARS

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.

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

COVID-19 RESOURCES

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.

General 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)

NAFSA

Immigration Agency Information

Department of Homeland Security: DHS.gov/coronavirus

–        https://www.dhs.gov/coronavirus-news-updates

–        https://www.dhs.gov/news/2020/03/17/fact-sheet-dhs-notice-arrival-restrictions-china-iran-and-certain-countries-europe

USCIS: USCIS.gov/coronavirus

ICE:

–        Overview and FAQs: https://www.ice.gov/coronavirus

–       Requirements for ICE Detention Facilities: https://www.ice.gov/doclib/coronavirus/eroCOVID19response

ReqsCleanFacilities.pdf

CBP:

–        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/

Travel advisories: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html

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/

Justice Department

Executive Office for Immigration Review: https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

AGENCY TWITTER ACCOUNTS

EOIR: @DOJ_EOIR

ICE: @ICEgov

Study in the States: @StudyinStates

USCIS: @USCIS

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.

 

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