Massachusetts Senate Oks Immigrant Driver's License Bill; Governor Vetoes; Override Expected
The Massachusetts Senate approved a bill on May 2, 2022 that would allow undocumented immigrants to obtain state driver’s licenses, moving the proposed change one step closer to becoming law. If passed into law, Massachusetts would join 16 other states, and the District of Columbia, that already have similar laws.
The bill was approved 32-8 in the Democratic-controlled chamber. That is enough to override a possible veto from Republican Gov. Charlie Baker, who has expressed opposition to similar efforts in the past. The bill passed by the Senate is nearly identical to the version that previously passed the House of Representatives this year. Governor Baker vetoed the bill on May 27, 2022. The bill previously passed in both the House and Senate by a wide enough margin to overcome the governor’s veto. It will be up to the House to initiate a veto override, with a two thirds majority vote required in each branch to make the bill law.
Under the bill, expanded access to standard driver's license would begin on July 1, 2023. Applicants under the bill would need to provide proof of their identity, date of birth and residency in Massachusetts.
Governor Baker vetoed the law. It passed with veto-proof majorities in both houses. An override is expected in the next few weeks.
Federal judge blocks Biden administration from lifting Title 42, for now
On May 20, 2022, a federal judge blocked the Biden administration from ending a Trump-era pandemic restriction, known as Title 42, at the US-Mexico border, thwarting plans to terminate the controversial public health authority.
Since taking office, the Biden Administration has continued to rely on Title 42, a public health authority invoked at the onset of the coronavirus pandemic that allows border officials to turn migrants away at the US-Mexico border.
On April 1, 2022, the US Centers for Disease Control and Prevention announced that it intended to terminate the order. The CDC said at the time it was no longer necessary given the reduction of Covid-19 cases increased availability of vaccines and treatments for Covid-19. In response to this, the Louisiana Western District Court found that the Biden administration did not follow the correct administrative procedures in ending the authority and argued that while a President may invoke an action without administrative procedures under emergency conditions, those flexibilities may not apply with respect to terminating it.
The termination of Title 42, the judge concluded, is not exempt from the notice and comment process, which can potentially take months. The public health authority, which has been fiercely criticized by immigrant advocates, will remain in effect for now.
A Department of Justice spokesperson has stated that the department intends to appeal the decision.
CBP Announces ESTA Fee Change
On Tuesday, May 24, 2022, U.S. Customs and Border Protection (CBP) announced that the ESTA travel promotion fee was increased from $10 to $17, in addition to a $4 operational fee. CBP began collecting the new fee amount on May 26, 2022. Individuals with an approved ESTA do not have to re-apply at this time, as an ESTA is valid for up to two years.
The ESTA is an automated system that determines the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP) by air, land, or sea. The VWP enables eligible nationals of 40 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa if they have an approved ESTA. CBP encourages travelers to obtain an approved ESTA by using the official website Official ESTA Application Website, U.S. Customs and Border Protection (dhs.gov).
National Visa Center Public Inquiry Telephone Line Suspension
The National Visa Center (NVC) has announced that it has suspended its public inquiry telephone line as of May 23, 2022 as a measure to address critical backlogs. The suspension of public inquiry telephone lines will not impede any essential functions of NVC and individuals will still be able to contact us using the methods identified below and find information regarding common IV and NIV inquiries on the State Department’s Helpful Hints pages.
Tips for interacting with NVC:
Visit https://nvc.state.gov for detailed instructions on processing your case.
For immigrant visas only, use the Public Inquiry Form at https://nvc.state.gov/inquiry if you cannot find the answer to your question at https://nvc.state.gov or https://ceac.state.gov.
Do not submit repeat inquiries. Multiple inquiries on a single topic will delay the NCV’s ability to respond. Visit https://nvc.state.gov/timeframes to check inquiry processing and case processing dates. Do not submit a follow-up inquiry while your case is within those timeframes.
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Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
For May 2022, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485]. USCIS has also indicated that it will not accept any new employment-based fifth preference adjustment of status applications based on the Regional Center Program until that program is reauthorized.
In May, the EB-1 preference category on the Final Action Chart for all countries including China and India will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in May.
The EB-2 preference category remains “current” for all countries other than China and India, which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India. In April, the final action dates for EB-3 preference categories for Chinese and Indian nationals was March 22, 2018, and January 15, 2012, respectively. The final action dates remain the same in May.
The EB-5 preference category has been reformed under the EB-5 Reform and Integrity Act. The May visa bulletin has added three new categories for EB-5 processing. All EB-5 preference categories are “current” except for EB-5 Unreserved (I5 and R5) for China.
The complete Visa Bulletin, including priority dates for family-based immigrant applications, can be found on the Department of State website.
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Immigration and Customs Enforcement (ICE) Publishes a Special Student Relief (SSR) Notice for Ukrainian and Sudanese Students
Immigration and Customs Enforcement (ICE) published a Special Student Relief (SSR) notice for International Students from Ukraine and Sudan, effective April 19, 2022. Special Student Relief (SSR) is the suspension of certain regulatory requirements by the secretary of Department of Homeland Security for F‑1 student from parts of the world that are experiencing emergent circumstances. Regulatory requirements that may be suspended or altered for an F-1 student include duration of status, full course of study and off-campus employment eligibility.
To be eligible, an F-1 student must:
Be a citizen of Ukraine or Sudan, regardless of country of birth (or be an individual having no nationality who last habitually resided in Ukraine or Sudan);
Have been lawfully present in the United States in F-1 nonimmigrant status on April 19, 2022;
Be currently maintaining F-1 nonimmigrant status;
Be enrolled in an SEVP-certified academic institution; and
Be experiencing severe economic hardship as a direct result of the ongoing armed conflict in Ukraine or current crisis in Sudan.
SSR notices will temporarily suspend applicable on-campus and off-campus employment regulations for eligible Ukrainian and Sudanese students until October 19, 2023.
Student and Exchange Visitor Program (SEVP) Continues March 2020 Guidance for the 2022-23 Academic Year
The Student and Exchange Visitor Program (SEVP) will extend the guidance originally issued in March 2020 for the 2022-23 academic year. This guidance enables schools and students to engage in distance learning more than regulatory limits due to the continuing public health concerns created by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad.
The March 2020 guidance applies to continuing F and M nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020, including those previously enrolled in entirely online classes who are outside of the United States and seeking to re-enter the country for the 2022-23 academic year. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country can re-enter the United States, even if their school is engaged solely in distance learning.
SEVP recently updated its frequently asked questions with information to clarify the application of the March 2020 guidance to the 2022-23 academic year and will continue to update these resources with the latest information and guidance for stakeholders.
Immigration and Customers Enforcement (ICE) Releases 2021 SEVP Annual Report
U.S. Immigration and Customs Enforcement (ICE) released its 2021 Student and Exchange Visitor Program (SEVP) annual report. The report highlights calendar year 2021 data from the Student and Exchange Visitor Information System (SEVIS), a web-based system that includes information about international students, exchange visitors, and dependents while they are in the United States.
The COVID-19 pandemic impacted international student enrollment in the United States in 2021. The total number of SEVIS records for active F-1 and M-1 students was 1,236,748 in calendar year 2021, a decrease of 1.2 percent from calendar year 2020. Only Asia and Australia/Pacific Islands saw an overall decline in the number of students coming to the United States last year; all other continents saw an increase. International F-1 and M-1 students came from every continent in the world other than Antarctica, and from more than 224 countries and territories. Students from China and India made Asia the most popular continent of origin, accounted for 71.9 percent of the international student population.
Federal Court Rejects USCIS Claim That Decision to Revoke a Previously Approved Employment-Based Immigrant Visa Petition Is Not Reviewable in Zamana v. Renaud
In Zamana v. Renaud, the plaintiff challenged the revocation of an approved Form I-140 employment-based immigrant visa petition in the U.S. District Court for the Southern District of Ohio. USCIS initially approved the petition, and then a month later issued a Notice of Intent to Revoke and ultimately revoked the approval. USCIS claimed that the petition was improperly approved in the first instance and the revocation was based upon the alleged erroneous decision.
Plaintiff brought a lawsuit under the Administrative Procedure Act alleging that the agency's decision to revoke Zamana's petition was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C §§ 701-706.53. USCIS filed a motion to dismiss arguing that, because the agency's decision to revoke its approval of Zamana's petition was discretionary, under 8 U.S.C. § 1155, this Court has no jurisdiction to review it. 8 U.S.C. § 1252(a)(2)(B)(ii).
The court observed that a contrary finding would permit USCIS to evade judicial review of non-discretionary decisions by first approving the petition, then revoking the approval a few weeks later. Citing Jomaa v. United States, 940 F.3d 291 (6th Cir. 2019), the court held that non-discretionary decisions “are within our purview even where they underlie determinations that are ultimately discretionary.”