IMMIGRATION UPDATE 8.29.2022

IMMIGRATION UPDATE 8.29.2022

IMMIGRATION UPDATE – August 29, 2022

HEADLINES

DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy – The rule, effective October 31, 2022, continues the Deferred Action for Childhood Arrivals policy announced in a 2012 memorandum that DACA recipients should not be a priority for removal.

USCIS Reaches FY 2023 H-1B Cap – U.S. Citizenship and Immigration Services has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption for FY 2023.

DV-2023 Selectees Only Need to Submit Application Form to Kentucky Consular Center, Not Supporting Docs, DOS Says – For DV-2023, selectees only need to submit to the Kentucky Consular Center the DS-260 immigrant visa application form for themselves and any accompanying family members, not supporting documentation.

E-Verify Reports System Outages During Case Creation – Users may experience system timeouts and increased processing times when creating and submitting cases.

Labor Dept. Reports FLAG System Issues – The Department of Labor recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

DETAILS

DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy

The Department of Homeland Security (DHS) announced a final rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children. DACA allows beneficiaries an opportunity to receive a renewable, two-year work permit. DHS said that DACA has allowed more than 800,000 young people, dubbed “Dreamers,” to remain in the United States.

The rule, effective October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It continues the DACA policy announced in a 2012 memorandum from Janet Napolitano, then-Secretary of Homeland Security, that DACA recipients should not be a priority for removal. DHS received more than 16,000 comments during the public comment period. The final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:

  • Maintains the existing threshold criteria for DACA;
  • Retains the existing process for DACA requestors to seek work authorization; and
  • Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

DHS noted that it may grant DACA renewal requests under the final rule but cannot grant initial DACA requests and related employment authorization due to a court injunction that remains in partial effect.

Advocates, including representatives from the American Immigration Lawyers Association and the American Immigration Council, hailed the Biden administration’s “positive step” but called for Congress to act also.

USCIS Reaches FY 2023 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

USCIS said it has completed sending non-selection notifications to registrants’ online accounts. The status of such registrations will show as “Not Selected.” USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, are exempt from the FY 2023 H-1B cap. USCIS said it will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

o  USCIS alert, Aug. 23, 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2023-h-1b-cap

DV-2023 Selectees Only Need to Submit Application Form to Kentucky Consular Center, Not Supporting Docs, DOS Says

The Department of State (DOS) announced on August 25, 2022, that for the Diversity Visa (DV) program for fiscal year 2023 (DV-2023), selectees only need to submit to the Kentucky Consular Center (KCC) the DS-260 immigrant visa application form for themselves and any accompanying family members. Once a DS-260 is received from the selectee, KCC will next review it for completeness, after which the case will be eligible to be scheduled for a visa interview if the selectee’s visa case number is current as reflected in the Visa Bulletin, DOS said. The agency noted that this continues the practice that began during the last program year, and said a “data-driven decision” would be made later for future program years.

DOS said that selectees should not submit to the KCC any other required supporting documents; instead, “all supporting documents for DV-2023 selectees will be collected and evaluated in connection with the interview at the embassy or consulate where the visa application is made.”

  • “Diversity Visa 2023 Update: Document Submission to KCC for DV-2023,” Dept. of State, Aug. 25, 2022, https://bit.ly/3KpsKxQ

E-verify Reports System Outages During Case Creation

E-Verify reported that it is experiencing intermittent system outages. As a result, “users may experience system timeouts and increased processing times when creating and submitting cases,” E-Verify said, adding that it is working to resolve the issue.

Employers must continue to complete and retain a Form I-9 for every person hired to work for pay in the United States within the required timeframes, E-Verify noted.

Labor Dept. Reports FLAG System Issues

The Department of Labor announced on August 24, 2022, that the Foreign Labor Application Gateway (FLAG) system “continues to experience intermittent issues when creating certain application forms, appendices, or other decision documents through Adobe PDF.” DOL recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

DOL said users should contact the FLAG Technical Help Desk Team if any decision document appears incomplete or otherwise contains inaccuracies.


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.

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

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.

 

<– Back to News Updates