Publication in Social Security Administration Program Operations Manual System (POMS) Regarding Policy Related to Employment Authorization for Non-immigrants
On June 2, 2022, the Social Security Administration (SSA) published “RM 10211.420 Employment Authorization for Non-immigrants” which outlines the SSA’s policies in the following scenarios:
A. Policy For Non-Immigrant Employment Authorization
B. Evidence Proving A Non-Immigrant's Employment Authorization
C. Validity Period
D. Automatic EAD Extension
E. Non-Immigrants With Automatic EAD Extensions
F. Procedure When An SSN Applicant Submits An EAD Based On An Automatic EAD Extension
G. Policy For Employment Authorization By Class Of Admission (COA)
To view the full published text, click on the link below.
$7.2 million Award Given to DOL’s OFLC to Modernize Permanent Labor Certification Program
The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced in August that they had been awarded $7.2 million from the Technology Modernization Fund (TMF). This large investment will improve DOL’s permanent labor certification services, helping to increase efficiency, improve customer experience and address fraud and security risks.
USCIS Updates Guidance on Religious Workers
USCIS issued updated guidance in the USCIS policy manual to provide clarify the special immigrant religious worker filing process, verification of evidence and the site-inspection process. Additionally, for both special immigrant and R-1 nonimmigrant religious worker petitions, this update clarifies when certain petitioners may satisfy the compensation requirements even if they will not be directly compensating the religious worker.
USCIS Begins Next Phase of Premium Processing for EB-1 and EB-2 Petitions
On September 15, 2022, USCIS began implementing the next phase of its expansion of the premium processing service for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, in the EB-1 and EB-2 categories.
This third phase only applies to certain previously filed Form I-140 petitions under the following classifications: E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW).
Petitioners who wish to request a premium processing upgrade must file Form I-907, Request for Premium Processing Service.
Beginning September 15, 2022, USCIS will accept Form I-907 requests for:
E13 multinational executive and manager petitions received on or before January 1, 2022; and
E21 NIW petitions received on or before February 1, 2022.
USCIS will reject premium processing requests for these Form I-140 classifications if the receipt date is after these dates. USCIS will have 45 days to take an adjudicative action on cases that request premium processing for these newly included Form I-140 classifications. USCIS is not accepting new (initial) Forms I-140 with premium processing requests at this time.
September 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 September, U.S. Citizenship and Immigration Services (USCIS) has indicated that for Employment-Based immigration, the “Final Action Dates” 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].
In September the EB-1 preference category on the Final Action Chart for all countries including China and India remains “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 September.
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 August, the final action dates for EB-3 preference categories for Chinese and Indian nationals were April 22, 2018 and February 15, 2012, respectively. They have remained the same for September.
The EB-5 preference category was recently reformed under the EB-5 Reform and Integrity Act and the visa bulletin includes three new categories for EB-5 processing. All EB-5 preference categories are “current” except for EB-5 Unreserved (I5 and R5) for China, which shows a final action date of December 22, 2015.
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 schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Click here to see complete September Visa Bulletin.
Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)
On August 4, 2021, the Board of Immigration Appeals (BIA) held that the Immigration Judge erred in denying the plaintiff’s motion to terminate based on receiving defective notice.
The BIA decision states that “On March 1, 2021, the Department of Homeland Security (“DHS”) personally served a notice to appear on the respondent. The notice to appear ordered the respondent to appear before an Immigration Judge at the Boston Immigration Court at a date and time “to be set”…At the May 6, 2021, hearing, the respondent expressly declined to concede proper service of the notice to appear and requested an opportunity to submit a motion to dismiss because the notice to appear did not specify the date and time of the initial hearing.”
“The Immigration Judge did not address the adequacy of the notice to appear. Instead, he found that the respondent was removable as charged and afforded him an opportunity to submit a written brief. On May 25, 2021, the respondent filed a motion…arguing that the notice to appear was defective because it lacked date and time information. DHS filed an opposition to the motion. On June 17, 2021, the Immigration Judge denied respondent’s motion and ordered him removed.”
The BIA remanded the case to the Immigration Judge to remedy the deficient notice to appear based on the following:
“(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional requirement.
(2) An objection to a noncompliant notice to appear will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge.
(3) A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information.
(4) An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings.”
Dor v. Garland
On August 19, 2022, the First Circuit Court held that the BIA’s analysis of the petitioner’s prior offenses incorrectly applies the factors for determining whether a criminal offense is “particularly serious” for the purpose of determining eligibility for relief established in Matter of Frentescu.
The holding states that "Petitioner, Jonalson Dor ("Dor"), seeks judicial review of a Board of Immigration Appeals ("BIA") decision affirming an immigration judge's ("IJ") decision to deny Dor's applications for relief from removal based on two marijuana offenses that the IJ and BIA found, for different reasons, to be "particularly serious" pursuant to 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii). Before us, Dor argues that the BIA failed to conduct the appropriate analysis to reach its particularly-serious-crime conclusion. The government urges that we shouldn't even reach Dor's substantive challenges due to his petition's jurisdictional defects, but even if we can find our way to the merits, the government maintains the BIA's decision was correct. We find we have jurisdiction to review the petition. And, having undertaken that review, we remand to the BIA for further proceedings consistent with this opinion.”
The First Circuit concludes that “The BIA's particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor's case, we still do not have a sufficiently rational explanation of the BIA's particularly-serious-crime conclusion as to Dor's minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks. ... For the foregoing reasons, we grant Dor's petition and remand for further proceedings consistent with this opinion."
Rivera-Medrano v. Garland
On August 26, 2022, the First Court of Appeals reversed a Board of Immigration Appeals order affirming the denial of an applicant’s request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.16(c)–1208.18.
The decision states that “Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT"), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge ("IJ") based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings."
The First Circuit Court held that the BIA abused its discretion in denying her motion to remand. In its denial, the BIA did not find that the new evidence was unreliable and did not specify any other reason that the evidence “should not be credited”. The holding also states that “The BIA's oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation." The First Circuit remanded the case to the BIA to determine whether the new evidence was material and previously unavailable to Ms. Rivera-Medrona, and that she has made a prima facie showing of eligibility for relief. If the BIA finds that this is the case, the First Circuit decision states that the case must be remanded to the immigration judge.
Attorneys Desai and Walsh presenting at the 2022 NAFSA Region XI Conference this Fall.
IDC Attorneys Desai and Walsh are presenting at the 2022 NAFSA Region XI Conference this Fall.
DHS Proposes Alternative Form I-9 Procedures
On August 18, 2022, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would grant it broader authority to permit alternative document inspection procedures for I-9 document verification in lieu of the physical inspection requirement. This proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures with respect to some or all employers. Such procedures could be implemented as part of a pilot program, or upon the Secretary's determination that such procedures offer an equivalent level of security, or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services pursuant to Section 319 of the Public Health Service Act, or a national emergency declared by the President pursuant to Sections 201 and 301 of the National Emergencies Act. This proposed rule would allow employers (or agents acting on an employer's behalf) optional alternatives for examining the documentation presented by individuals seeking to establish identity and employment authorization for purposes of completing the Form I-9.
The proposed rule describes how DHS may implement future document inspection procedure changes, including:
limiting implementation only to employers enrolled in E-Verify
updating document retention requirements
changing the Form I-9 to allow employers to clearly note the use of alternative examination procedures
The public will have a 60-day comment period to provide feedback on the proposal as well as comments on how DHS may use this additional authority to make I-9 document inspection easier for employers.