Opener
Dear Readers,
Last month, I reported that our firm was making progress in our lawsuit challenging USCIS regarding making Ukrainians automatically authorized to work in the US and to stop charging the $410 filing fee the agency was requiring for work authorization documents. We sued, along with our three fellow IMMPact Litigation firms, a suit called Shumilina v. Jaddou in the Northern District of Illinois in Chicago and I’m happy to report a victory in that case.
The government conceded that we were correct in our legal theory and noted in a news release that work authorization for the 200,000+ Ukrainian parolees who entered the US after February 24, 2022, were authorized to work “incident to status” and if an employment authorization document was filed, it would be adjudicated without charge. The reason is that Congress passed legislation last May that said Ukrainian parolees are to be treated like refugees and refugees get a similar benefit. There happens to be a similar law for Afghan humanitarian parolees that was also being ignored with respect to work authorization and USCIS, apparently seeing the writing on the wall, included Afghans in their announcement. The news is posted on the USCIS web site at https://www.uscis.gov/save/whats-new/certain-afghan-and-ukrainian-parolees-are-employment-authorized-incident-to-parole.
We’re now seeking to get the illegally charged filing fees refunded as well and are filing a new case in the US Court of Claims in Washington, DC, so stay tuned for that.
The last few weeks have been busy for Siskind Susser lawyers who have been speaking at conferences around the world. My law partner Elissa Taub and I were both speakers at the American Immigration Lawyers Association (AILA) fall gathering of the European chapter of the association in Paris. I also spoke at International Bar Association conferences in Miami and London as well as the AILA Central Florida conference in Clearwater and the AILA Business School conference in Las Vegas.
In advocacy news, unfortunately, virtually no immigration legislation passed in the “lame duck” session of Congress. Hopes were raised for legislation dealing with green cards for Afghan parolees, creating a path to citizenship for Dreamers, ending country quotas, and more. However, there was good news for Portuguese nationals who will soon get E visa status and for H-2Bs which got an increase in visa numbers. More on that in coming issues.
As we close 2022, we want to wish all of our readers a happy holiday season and a good new year. We remain hopeful that 2023 will be a good year for making progress on immigration and we look forward to the 29th year of our law firm and this publication.
As always, we invite you to schedule an appointment with one of our lawyers if we can ever assist with an immigration matter. Just go to www.visalaw.com/consultation.
Sincerely,
Greg Siskind
Ask Visa Law
Written by Robby Rubin
Question: What is the most recent update to Temporary Protected Status eligibility announced by DHS?
In response to the ongoing nationwide litigation surrounding DHS’s attempted termination of Temporary Protected Status for individuals from El Salvador, Haiti, Nicaragua, and Sudan (Ramos), as well as Honduras and Nepal (Bhattarai), DHS announced on November 10, 2022, that beneficiaries from those countries will continue to retain their Temporary Protected Status and benefits while the preliminary injunction (Ramos) and stay of proceedings order (Bhattarai) remain in effect.
In addition to the extensions for the above-named countries, DHS designated Ethiopia for Temporary Protected Status on October 21, 2022. Ethiopians who have been physically present and residing in the United States since October 20, 2022, will be eligible to apply for Temporary Protected Status. Ethiopia’s designation is based on an ongoing armed conflict and extraordinary and temporary conditions in Ethiopia that prevent Ethiopian nationals from safely returning to their native country.
Question: If I am from one of the countries named above and I was granted Temporary Protected Status, do I need to reapply to extend the validity of my Employment Authorization Documents and other TPS-related documentation?
No. If you are a citizen of one of the above-named countries, and you applied for and were granted Temporary Protected Status during your country’s application window, and you haven’t since become individually ineligible for Temporary Protected Status, then your Employment Authorization and other TPS-related documents will be automatically extended until June 30, 2024. For additional information, please see the Federal Register notice at 87 FR 68717 (Nov. 16, 2022).
In the News From ABIL
DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini
Each country’s designation is valid until November 9, 2023.
To ensure its continued compliance with several court orders, the Department of Homeland Security is automatically extending the validity of certain temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024.
E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts
Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding.
CIS Ombudsman Introduces Revised Form for Requesting Case Assistance
The updated Form 7001, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.
The U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022.
President Accepts Resignation of CBP Commissioner
Chris Magnus was accused of unprofessional behavior by other officials working with him.
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.
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.
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.
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.
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has released various data and statistics, and the latest H-2B recruiter list.
USCIS Says Certain Afghan and Ukrainian Parolees Are Immediately Work Authorized
U.S. Citizenship and Immigration Services is providing employment authorization incident to status normally accorded to refugees and a no-fee initial (and replacement of an initial) employment authorization document to Afghan and Ukrainian parolees, based on recently passed laws.
USCIS Announces Expedited Work Authorization Processing, Expanded Fee Exemptions for Afghans
U.S. Citizenship and Immigration Services is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.
Dept. of Labor Announces Additional Listening Sessions on H-2A Program
The agency has added two more listening sessions.
OFLC Releases FAQs on Prevailing Wage Surveys Under 2022 H-2A Final Rule
The FAQs are intended to assist State Workforce Agencies and others in understanding the prevailing wage survey methodology of the final rule.
USCIS Accepting Only 8/19/22 Edition of N-648, Medical Certification for Disability Exceptions
U.S. Citizenship and Immigration Services is accepting only the 8/19/22 edition of Form N-648, Medical Certification for Disability Exceptions. USCIS revised the form and removed several questions.
IMMPact Litigation Update
IMMPact Litigation is gearing up to file a class action lawsuit regarding delays in the adjudication of I-601A provisional waiver applications. We are co-counseling on the case with the American Immigration Lawyers Association and the American Immigration Counsel. The case is fairly straightforward. USCIS was adjudicating these applications in about four months in 2019. Today, they’re taking more than 33 months. This long adjudication time is causing serious hardship to plaintiffs, and we will be filing the case in early January.
To qualify to be a plaintiff, an applicant must have entered the US before October 5, 2021. Information on the suit can be found at https://www.immpactlitigation.com/i-601a-delays-mandamus-case-plaintiff-onboarding/.
If you are a lawyer and want to be on our email list to get periodic emails alerting you to new cases we’re working on, please feel free to sign up at https://lp.constantcontactpages.com/su/bSeimpf.
State Department Visa Bulletin
To view the December 2022 Visa Bulletin from the State Department: click here.