USCIS issued policy guidance in the USCIS Policy Manual to clarify how USCIS determines eligibility for L-1 nonimmigrants seeking classification
On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance in the USCIS Policy Manual to clarify how USCIS determines eligibility for L-1 nonimmigrants seeking classification as managers or executives or specialized knowledge workers.
L-1 nonimmigrant status is available to employees of a qualifying organization who are either executives or managers (L-1A) or employees with specialized knowledge (L-1B). The policy manual update is not intended to change existing policy or create new policy, but instead consolidates and updates guidance that was previously contained in the Adjudicator’s Field Manual (AFM) Chapter 32, as well as related AFM appendices and policy memoranda. This guidance, contained in Volume 2 of the Policy Manual, is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.
DOL Announces $7.2 Million Investment in PERM System
On August 24, 2022, the Office of Foreign Labor Certification announced the receipt of an investment from the Technology Modernization Fund for the purpose of improving the Permanent Labor Certification Program. The $7.2 million TMF investment will improve DOL’s permanent labor certification services, helping to increase efficiency, improve customer experience, and address fraud and security risks overall. This investment will aid in integrating the permanent labor certification process into the Foreign Labor Application Gateway (flag.dol.gov) with the intent of making the process “easier, faster, and cheaper for employers to access permanent labor certification services and create a more seamless immigrant visa processing experience.”
The Technology Modernization Fund is working to transform the way the government uses technology to deliver for the American public in an equitable, secure, and user-centric way. The TMF invests in technology projects across government, providing incremental funding, technical assistance, and oversight throughout execution to ensure the success of its investments.
FY2023 H-1B Cap Reached
On August 23, 2022, USCIS announced 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 has completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:
Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
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 number, are exempt from the FY 2023 H-1B cap. We 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.
If you were not selected this year and have questions about H-1B alternatives, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
USCIS’ Pandemic Signature Policy is Now Permanent
On July 25, 2022, U.S. Citizenship and Immigration Services announced that it is extending certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors.
In particular, USCIS is evaluating which of the pandemic-era flexibilities should remain permanent, and due to this, the “reproduced signature” flexibility announced in March 2020, will become permanent policy on July 25, 2022. Under this policy, USCIS has been accepting petitions and applications with “electronically reproduced signatures”, meaning a scan, fax, photocopy, or similarly reproduction of a document provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
Additionally, USCIS is extending response deadline flexibilities through Oct. 23, 2022. USCIS will continue to consider 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 Oct. 23, 2022, inclusive:
Requests for Evidence;
Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind;
Notices of Intent to Terminate regional centers;
Notices of Intent to Withdraw Temporary Protected Status; and
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 USCIS made; and
USCIS made that decision between Nov. 1, 2021, and Oct. 23, 2022, inclusive.
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 Oct. 23, 2022
Updated COVID-19 Vaccination Requirements for Uniting for Ukraine Parolees
On August 10, 2022 the U.S. Department of Homeland Security (DHS) announced that DHS has updated the COVID-19 vaccination requirements for beneficiaries paroled into the United States under Uniting for Ukraine. Previously, beneficiaries younger than 5 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, but this guidance has since been updated. Now, all beneficiaries aged 6 months and older must have an attestation submitted attesting that they received COVID-19 vaccinations both before traveling to the United States and after arrival in the United States according to the current guidelines set by the Centers for Disease Control and Prevention, unless they are eligible for an exception.
New Statutory Due Process Rights for Immigrant Victims in Massachusetts On August 04, 2022, the Massachusetts Legislature added a new law (G.L. c. 258F, §§ 1-4 ) to the General Laws on victim rights. Under federal law, certain immigrant victims of certain violent crime or severe forms of human trafficking to petition the United States Citizenship and Immigration Services (USCIS), for a U visa (for victims of specific violent crimes) or a T visa (for victims of human trafficking).
Prior to the recent Massachusetts state law, the federal law creating the certification requirement did not establish a standardized process for evaluating certification requests. Due to the absence of federal, statutory due process, some immigrant victims of crime experienced “delays and confusion” when requesting certification.
The new law affords immigrants two statutory due process provisions when seeking certification for a U or T visa. The first provision requires certifying entities to “adopt a policy for completing and signing nonimmigrant status certification forms” for those who intend to seek U or T visas. Those policies must be clear about how the certifying agency assesses whether the victim “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of qualifying crimes.
The second statutory due process provision governs timeliness. The certifying entity must respond to a certification request within 90 days through one of the following options:
complete and sign the certification form
deny the request without prejudice that explains “the reason that the request does not meet the requirements of the certifying entity’s policy”
provide a written explanation that the certifying entity is delayed in responding with a projected time frame for a response.
If the certifying entity responds that there is a delay, the delay must be caused by “extenuating circumstances outside the control of the certifying entity.”
DHS Notice of Extension and Redesignation of Syria for TPS
On July 29, 2022, The U.S. Department of Homeland Security (DHS) announced the extension and redesignation of Syria for Temporary Protected Status (TPS) for 18 months, through March 31, 2024. This extension allows existing TPS beneficiaries to retain TPS through March 31, 2024, so long as they otherwise continue to meet the eligibility requirements for TPS. Existing TPS beneficiaries who wish to extend their status through March 31, 2024, must re-register during the 60-day re-registration period, between August 1, 2022 through September 30, 2022, per the Federal Register Notice posted on August 1, 2022.
This notice also provides automatic extension of the validity of certain EADs previously issued under the TPS designation of Syria through September 30, 2023. Therefore, as proof of continued employment authorization through September 30, 2023, TPS beneficiaries can show their EADs that have the notation A-12 or C-19 under Category and a “Card Expires” date of September 30, 2022, March 31, 2021, September 30, 2019, or March 31, 2018. The Federal Register Notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and how this affects the Form I-9, Employment Eligibility Verification, E-Verify, and USCIS Systematic Alien Verification for Entitlements (SAVE) processes. Employers and employees can find the Lists of Acceptable Documents on the last page of Form I-9, Employment Eligibility Verification, as well as at the Acceptable Documents web page here.
DHS issues Notice of Final Rule on DACA
On August 30, 2022, the U.S. Department of Homeland Security (DHS) issued a notice of final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.
The rule continues the DACA policy as announced in the 2012 Napolitano Memorandum and is based on established USCIS practice. The rule embraces the consistent judgment that has been maintained by the Department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal.
A product of careful review and in response to the more than 16,000 comments received 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.
The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021 injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.
ICE Developing New Secure Docket Card for Migrants Arriving at the U.S. Border
Immigration and Customs Enforcement (ICE) is currently developing a Secure Docket Card (SDC) for issuance to migrants at the U.S. border and in detention centers. An ICE spokesperson stated that, “The ICE Secure Docket Card (SDC) program is part of a pilot program to modernize various forms of documentation provided to provisionally released noncitizens through a consistent, verifiable, secure card. The secure card will contain a photo, biographic identifiers, and cutting-edge security features to the mutual benefit of the government and noncitizens." The SDC card may eventually be accepted for travel by the Transportation Services Agency (TSA). ICE is expected to launch the pilot program by the end of 2022. The SDC will allow foreign nationals to both better communicate changes in their information to U.S. immigration agencies as well as stay informed of developments in their pending cases. More importantly, the SDC is expected to reduce the number of foreign nationals in detention centers.
USCIS Rescinds Designation of the Decision in Matter of Z-R-Z-C- as an Adopted Decision
On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it was rescinding its designation in Matter of Z-R-Z-C- as an adopted decision and updated its interpretation of authorized travel by foreign nationals in Temporary Protected Status (TPS). This memo replaces prior USCIS guidance regarding the treatment of a TPS beneficiary’s return after authorized travel abroad.
The updated guidance states:
“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 of the prior consent for travel contemplated in INA 244(f)(3) and serve as evidence that the bearer may be inspected and admitted into TPS pursuant to 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. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.”