Openers
Dear Readers,
Now that the election is past and the new Congress has begun, the question naturally turns to what can be expected regarding immigration. Not surprisingly, considering that we have a Republican House and the Democrats controlling the Senate and the White House, I wouldn’t hold out hopes for a great deal of change. Well, not change for the better.
The Republicans have selected Tom McClintock as the Immigration Subcommittee chair. Most of the Republicans on the committee are not well known nationally, but all are expected to focus on border enforcement. The GOP has also made it known they intend to pursue impeachment hearings regarding Secretary of Homeland Security Alejandro Mayorkas.
After many years as Chair, Congresswoman Zoe Lofgren, a member of the Democrats’ leadership team, will not be leading her party on the committee. Instead, the Democrats’ Ranking Member is Pramila Jayapal, herself an immigrant. Congresswoman Jayapal, herself an immigrant who came to the US on an H-1B visa, has long enjoyed a reputation as being strongly pro-immigration and we can expect the rest of the Democrats to follow her lead.
When Congress is divided like this, immigration bills generally go nowhere. The Republican majority in the House is so slim that it probably can’t pass Republican bills on immigration. And if they manage to do so, they will die in the Senate (if they even get taken up). The focus is usually on appropriations and how immigration-related funds will be spent. Small bipartisan measures, like the Ukraine Supplemental bill which had immigration provisions for Ukrainian nationals, might move.
One wildcard issue involves DACA. If the courts strike down the program, something that might happen in the months to come, Congress will be under pressure to act to pass a Dream Act. Senator Graham (R-SC) and Senator Durbin (D-IL) are trying to set the stage for that. The Democrats in the House, along with a handful of Republicans, could use a legislative process called a discharge petition where a majority of members of Congress sign a petition that forces a bill to get a floor vote. If that happens, and that’s a big “if”, then the Senate would need to move the bill and not filibuster. Republican leaders in the Senate may choose to let a bill come up without a filibuster if they fear the political repercussions of being blamed for the death of a program with near 80% public support.
Assuming the stalemate in Congress continues, the big question is what the Biden Administration has in plan for this year.
In firm news, Siskind Susser lawyers are speaking at events across the US on immigration law topics. Greg Siskind is speaking to the New York, Chicago and Las Vegas Chapters of the American Immigration Lawyers Association over the next few weeks as well as speaking on two panels at the American Bar Association Techshow in Chicago. Adam Cohen is speaking at the Chicago AILA chapter conference. Jason Susser just spoke at Stanford University’s Graduate School of Business. And six firm lawyers have been invited to speak at the annual meeting of AILA in Orlando in June.
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
What is a T nonimmigrant Visa?
The T nonimmigrant visa allows certain victims of severe forms of sex and labor trafficking to obtain immigration benefits, allowing such victims to remain in the United States with T-1 nonimmigrant status, and to potentially assist law enforcement in investigating the people responsible for trafficking them into the United States.
In order to be eligible for a T visa, an applicant must demonstrate that they meet the following four criteria:
They are or were a victim of a severe form of trafficking in persons.
They are physically present in the United States or at a United States port of entry on account of such trafficking.
They are complying or have complied with any reasonable request for assistance from a United States law enforcement agency in its investigation or prosecution of acts of trafficking in persons; and
The applicant would suffer extreme hardship involving unusual and severe harm upon removal.
Are individuals with T-1 nonimmigrant status authorized to work in the United States?
Yes, principal T nonimmigrants are authorized to work in the United States, and do not need to file an Application for Employment Authorization. USCIS will automatically issue an Employment Authorization Document (EAD) to T nonimmigrants, and the EAD will be valid for the duration of the applicant’s T-1 nonimmigrant status. Similarly, derivatives with T nonimmigrant status are eligible to receive an EAD, but derivatives must submit Form I-765 to receive their EAD as one is not automatically issued for them.
In the News from ABIL
USCIS Issues Proposed Rule to Raise Fees and Fund Asylum Program With New $600 Employer Petition Fee
The Department of Homeland Security also proposes to fund the asylum program with a controversial new Asylum Program Fee of $600 to be paid by employers.
The Department of Homeland Security (DHS) announced a new process for qualifying Cubans, Haitians, and Nicaraguans with U.S.-based supporters to travel by air to and temporarily reside in the United States. Such individuals may also apply for work authorization. DHS also eliminated the numerical cap for a similar process for Venezuelans announced previously.
OFLC Completes Random Assignments of H-2B Applications for Second Half of FY 2023 Visa Cap
The Department of Labor’s Office of Foreign Labor Certification has completed the process to randomly assign all H-2B applications submitted during the initial three-day filing window, January 1-3, 2023, requesting an April 1, 2023, work start date for the second half of the fiscal year 2023 H-2B statutory visa cap.
Omnibus Spending Legislation Includes Several Immigration-Related Provisions
Included is $800 million in competitive grants under a new U.S. Customs and Border Protection “Shelter and Services” program for state and local governments and nonprofits dealing with an influx of migrants.
U.S. Embassy in Havana Resumes Full Immigrant Visa Processing
On January 4, 2023, the U.S. Embassy in Havana resumed full immigrant visa processing, including all visa categories. The embassy also announced that the United States is expanding consular operations in Havana and restarting the Cuban Family Reunification Parole Program.
Supreme Court Extends Temporary Stay of ‘Title 42’
The Court plans to consider in late February 2023 whether the 19 states objecting to Title 42 have legal standing to do so.
Effective in January, employment first preference final action and application filing dates for China and India are established to hold number use within the maximum allowed under the fiscal year 2023 annual limit.
TPS for Yemen Extended, Redesignated
The Department of Homeland Security extended and redesignated Yemen for temporary protected status in a Federal Register notice published on January 3, 2023.
CDC Announces New COVID-19 Testing Requirement for Air Passengers From China
Effective January 5, 2023, the Centers for Disease Control and Prevention is requiring a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China and the Special Administrative Regions of Hong Kong and Macau.
DHS, DOJ Further Delay Effective Date of Asylum Security Bars Rule
The rule would make noncitizens ineligible for asylum if, among other things, they were physically present in a country in which a communicable disease was prevalent or epidemic, and the Secretary of Homeland Security and the Attorney General determined that their physical presence in the United States would cause a risk to public health.
DOL Publishes Round 4 FAQs on H-2A Application Filing and Processing Under Final Rule
Topics include how to file, timing considerations, multiple worksites, National Processing Center processing, amendment requests, and withdrawal requests.
DHS Public Charge Ground of Inadmissibility Final Rule Effective December 23
For public charge inadmissibility determinations, the Department of Homeland Security will not consider receipt of noncash benefits (for example, the Supplemental Nutrition Assistance Program, public housing, school lunch programs) other than long-term institutionalization at government expense.
E-Verify Restores Employers’ Ability to Upload Multiple Hiring Sites Simultaneously
EVerify has restored the ability of employers, employer agents, and corporate administrators to upload multiple hiring sites simultaneously.
USCIS Provides List of Options for Nonimmigrant Workers Following Termination of Employment
U.S. Citizenship and Immigration Services provided a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination of employment.
USCIS Seeks Comments on EB-5 Regional Center Forms for Investors
U.S. Citizenship and Immigration Services seeks comments until January 23, 2023, on two forms associated with the EB-5 Regional Center (RC) program.
USCIS Increases H-2B Nonimmigrant Visa Availability
A new rule increases the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2023.
The Department of Homeland Security issued an update on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld on appeal. In other news, a federal judge paused the termination of the Migrant Protection Protocols, informally known as the “Remain in Mexico” program.
In two notices, the Department of Labor’s Employment and Training Administration announced new Adverse Effect Wage Rates under the H-2A program for (1) agricultural labor or services other than the herding or production of livestock on the range, and (2) occupations involving herding or production of livestock on the range.
The Immigrant Visa Unit at the U.S. Consulate Guangzhou announced that beginning December 19, 2022, it is closed for regular visa services until further notice. The U.S. embassy in Beijing and the U.S. consulate in Shanghai are providing passport and emergency citizen services only. The U.S. consulates in Wuhan, Shenyang, and Guangzhou are only providing emergency consular services until further notice.
USCIS Announces Trial for Naturalization Test Updates
The trial is tentatively scheduled for a five-month period in 2023. The purpose of the trial is to test a civics component with updated format and content and a newly developed English-speaking component “that could become standard.”
In response to a federal court order, the Department of Labor’s (DOL) Office of Foreign Labor Certification plans to rescind H-2B registration requirements and propose conforming edits throughout its H-2B regulations. In the interim, DOL said it will use the Notice of Acceptance, issued when an H-2B application meets regulatory requirements and the employer can begin recruiting U.S. workers, to inform an H-2B employer of DOL’s determination of the employer’s temporary need for services or labor.
U.S. Citizenship and Immigration Services (USCIS) is automatically extending the validity of Permanent Resident Cards (green cards) for lawful permanent residents (LPRs) who applied for naturalization on December 12, 2022, or later. USCIS said it will update the language on Form N-400 receipt notices to extend green cards for up to 24 months for these applicants. LPRs who filed for naturalization before December 12 will not receive this extension.
The Department of Homeland Security announced several measures to provide relief for Ethiopians in the United States.
DHS Extends and Redesignates TPS for Haiti for 18 Months
The Department of Homeland Security (DHS) announced the extension of temporary protected status (TPS) for Haiti through August 3, 2024. DHS also redesignated Haiti for TPS, allowing eligible Haitian nationals residing in the United States as of November 6, 2022, to apply for TPS through August 3, 2024.
DOL Publishes More FAQs on 2022 H-2A Final Rule
The FAQs’ topics include wage and pay obligations and prevailing wages. Examples and tips for employers are included.
The Department of Homeland Security (DHS) announced on January 13, 2023, that noncitizen workers who are victims of or witnesses to a violation of labor rights can now access a streamlined and expedited deferred action request process.
U.S. Citizenship and Immigration Services is implementing the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Also, in March and April, USCIS plans to expand premium processing to certain F-1 students and exchange visitors.
DHS Extends and Redesignates Somalia for TPS for 18 Months
DHS is extending temporary protected status (TPS) for Somalia for an additional 18 months, from March 18, 2023, through September 17, 2024. DHS also redesignated Somalia for TPS, allowing Somali nationals residing in the United States as of January 11, 2023, to apply.
Scheduling System for ‘Safe, Orderly and Humane Border Processing’ Goes Live
DHS announced that the new scheduling function in the CBP One™ mobile application is now live. Non-U.S. citizens located in Central or Northern Mexico who seek to travel to the United States may use U.S. Customs and Border Protection’s app to submit information in advance and schedule an appointment to present themselves at certain southwest border land ports of entry.
As required by the Inflation Adjustment Act, the Departments of Homeland Security and Labor have raised the amount of certain penalties.
Supreme Court Declines to Resurrect Trump-Era Public Charge Rule
On January 10, 2023, the Supreme Court declined to review a case, Cook County, Illinois v. Mayorkas, that sought to revive the Trump-era public charge rule.
DHS Makes Two Corrections to Proposed Fee Rule
DHS corrected two typos in fee amounts in the published version of its proposed fee rule.
The Department of State’s Visa Bulletin for February 2023 has been released.
HHS Issues Poverty Guidelines for 2023
The Department of Health and Human Services issued updated poverty income guidelines for 2023 to account for 2022’s increase in prices as measured by the Consumer Price Index. The poverty guidelines are used as an eligibility criterion by a number of federal programs.
ICE Unintentionally Releases Information on 6,000 Noncitizens in Custody
U.S. Immigration and Customs Enforcement (ICE) announced that while performing routine website updates, it unintentionally posted a document on ICE.gov for about five hours that included names and other personally identifiable information (PII), along with immigration information, of approximately 6,000 noncitizens in ICE custody.
DOS Launches ‘Welcome Corps’ for Private Sponsorship of Refugees
The Department of State, in collaboration with the Department of Health and Human Services, announced the launch of “Welcome Corps,” a new private sponsorship program to welcome refugees and support their resettlement and integration into the United States.
USCIS Provides Follow-Up Q&A on International Student Issues
U.S. Citizenship and Immigration Services provided questions and answers following a webinar presented by the Office of the Citizenship and Immigration Services Ombudsman on international student issues.
Initial Registration for FY 2024 H-1B Cap Opens March 1
The initial registration period will run through noon ET on March 17, 2023.
Certain Asylum Applicants Can Now Apply for Work Authorization Online
Applicants for employment authorization under category (c)(8), Pending Asylum and Withholding of Removal Applicants and Applicants for Pending Asylum under the ABC Settlement Agreement, can now file Form I-765, Application for Work Authorization, online.
Green Card Validity Extended for Conditional Permanent Residents With a Pending I-751 or I-829
U.S. Citizenship and Immigration Services is extending the validity of green cards for petitioners who properly file Form I-751, Petition to Remove Conditions on Residence, or Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, for 48 months beyond the card’s expiration date.
DHS Announces Measures for Haitians in United States: TPS, Special Student Relief
The Department of Homeland Security announced several measures to provide relief for Haitians in the United States, including temporary protected status and special student relief.
President Biden Extends and Expands DED Eligibility for Certain Hong Kong Residents
President Biden is extending Deferred Enforced Departure (DED) for an additional period of 24 months for residents of Hong Kong presently residing in the United States who were under a grant of DED until February 5, 2023, and is deferring enforced departure for other Hong Kong residents who arrived in the United States after the initial grant of DED, with several exceptions.
USCIS Extends COVID-19-Related Flexibilities Through March 23
U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through March 23, 2023.
New Settlement Agreement Helps H-4 and L-2 Dependent Spouses
U.S. Citizenship and Immigration Services has returned to a pre-Trump administration policy of adjudicating Form I-539, Application to Extend/Change Nonimmigrant Status and Form I-765, Application for Employment Authorization for H-4 and L-2 derivatives, along with the underlying Form I-129, Petition for Nonimmigrant Worker, when these forms are filed concurrently.
IMMPact Litigation Update
Siskind Susser, along with our IMMpact Litigation colleagues and our co-counsel at the American Immigration Lawyers Association and the American Immigration Council, filed a class action case called Guevara Enriquez v. USCIS, challenging delays in I-601A waiver cases. These cases have gone from taking four months to more than three years over the past couple of years. More than 300 plaintiffs are included in the case and USCIS must respond to the complaint in March.
IMMPact also continues the fight on behalf of Ukrainian parolees for automatic work authorization that is fee-free. USCIS gave in in November in our first case on this issue, but in order to seek refunds of illegally collected filing fees, IMMpact is filing a separate suit seeking a refund of all I-765 filing fees for Ukrainian and Afghan nationals. We are also planning litigation against the Social Security Administration regarding that agency’s failure to comply with a new law mandating the agency treat Ukrainians the same way as refugees. Refugees get unrestricted social security cards. Ukrainians are being prevented from working automatically because SSA won’t issue these cards.
Upcoming cases currently onboarding involve delays for I-601 waivers and delays in issuing Prevailing Wage Determinations in PERM case. For more information, go to www.immpactlitigation.com.
State Department Visa Bulletin
To view the February 2023 Visa Bulletin from the State Department: click here.