U.S. Court of Appeals for the Fifth Circuit Rules that DACA Program is “Unlawful”

On October 5, 2022, the U.S. Fifth Circuit Court of Appeals voted unanimously to uphold the ruling of a U.S. Federal District Court in the Southern District of Texas (Texas v. United States) enjoining the DACA (Deferred Action Against Childhood Arrivals) Program and vacated the 2012 Department of Homeland Security (DHS) memorandum establishing the program. The Fifth Circuit agreed with the lower court’s findings that the DACA program violated the Administrative Procedure Act and was substantively and procedurally unlawful. However, the Fifth Circuit returned the case to the lower court in light of the Bidem Administration’s recently promulgated DACA regulation, which is scheduled to take effect on October 31, 2022, and agreed to maintain the current stay that temporarily preserves the DACA program. As a result of the stay that remains in place, current DACA recipients will not lose their protection from removal or work authorization. DHS will continue to accept the filing of both initial and renewal DACA applications but will process only the DACA renewal requests. New DACA applications will not be adjudicated unless the DACA program is upheld in subsequent litigation.

U.S. Citizenship and Immigration Services Extending Certain COVID-19-Related Flexibilities through January 24, 2023

On October 24, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is extending certain COVID-19-related flexibilities through January 24, 2023. 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 January 24, 2023, 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 we made; and

• USCIS made that decision between November 1, 2021, and January 24, 2023, inclusive.

Department of Homeland Security Designates Ethiopia for Temporary Protective Status

On October 21, 2022, the Department of Homeland Security (DHS) designated Ethiopia for Temporary Protected Status (TPS) for 18 months. Only Ethiopian nationals who are already residing in the United States as of October 20, 2022, are eligible for TPS. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ethiopia including severe food insecurity, flooding, drought, and large-scale displacement. Instructions on applying for TPS and Employment Authorization Document (EAD) are expected to be published in the Federal Register shortly. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Department of State Provides Update on Worldwide Visa Operations

The Department of State (DOS) announced that worldwide visa operations are recovering faster than expected from the COVID-19 pandemic. DOS is successfully lowering visa interview wait times worldwide and has doubled its hiring of U.S. Foreign Service personnel. DOS expects to reach pre-pandemic processing times by the end of this year. Ninety-six percent of U.S. embassies and consulates are interviewing visa applicants, and nonimmigrant and immigrant visa applications are being processed at 94 percent and 130 percent of pre-pandemic monthly averages, respectively.  In the past 12 months, DOS processed 8 million nonimmigrant visas, and is expected to meet and exceed pre-pandemic visa processing capacity. DOS credits part of its success to its expanded visa interview waiver program. DOS estimates that 30 percent of nonimmigrant visa applicants worldwide may be eligible for an interview waiver, which will make in-person interview appointments more accessible. Other DOS milestones include: 1) reducing the overall immigrant visa interview scheduling backlog by 25 percent; 2) adjudicating more student visas in July 2022 than in any other month since 2016, with nearly 180,000 F, M, and academic J visas processed; 3) exceeding pre-pandemic levels of visa processing for seasonal agricultural and nonagricultural workers; 4) issuing all available E-3 visas in FY 2022; and 5) issuing the highest number of Diversity Visas (DV) in the past 25 years, with all available DV numbers exhausted when that total was combined with the domestic applications in the U.S.

If you are planning international travel, please visit the website of the U.S. Embassy or Consulate where you are applying for important information about your visa interview. You can also look up visa appointment wait times on the Department of State website.

Department of Homeland Security Launches Venezuelan Parole Program

On October 12, 2022, Department of Homeland Security (DHS) announced a new parole program for Venezuelan that will provide a lawful and streamlined way for nationals of Venezuela who are outside the United States and lacking U.S. entry documents to come to the United States. Through a fully online process, individuals can be considered, on a case-by-case basis, for advance authorization to travel to the United States and seek a temporary period of parole for up to two years.

To be eligible, Venezuelans must:

• have a supporter in the United States who will provide financial and other support;

• pass rigorous biometric and biographic national security and public safety screening and vetting; and

• complete vaccinations and other public health requirements.

Venezuelans are ineligible if they:

• have been ordered removed from the United States in the previous five years;

• have crossed without authorization between ports of entry after the date of announcement;

• have irregularly entered Mexico or Panama after the date of announcement, or are a permanent resident or dual national of any country other than Venezuela, or currently hold refugee status in any country; or

• have not completed vaccinations and other public health requirements.

Venezuelans should not travel to Mexico to pursue entry into the United States. The Department of Homeland Security (DHS) strongly encourages Venezuelans seeking entry to the United States who do not have a visa or who are not eligible for one to seek entry through this new program. Access to this process for Venezuelans is free. Neither the supporter nor the beneficiary is required to pay the U.S. government a fee for the application. USCIS cautions applicants to be aware of any potential scams by anyone who asks for money in the application process. USCIS has created a webpage for the process for Venezuelans.

U.S. Citizenship and Immigration Services No Longer Requires Duplicate Copies of Form I-129 Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that it no longer requires a duplicate copy of Form I-129, Petition for a Nonimmigrant Worker or any of the supporting documentation for any visa classification unless specifically instructed by USCIS. Due to enhanced electronic scanning capabilities and data-sharing with the Department of State, duplicate copies are no longer needed to avoid delays in consular processing.

Equal Pay Transparency and its Effect on PERM Applications

Equal Pay Transparency (EPT) laws have been expanding in the United States. Currently, Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio have EPT laws in effect. New York City’s EPT law goes into effect on November 1, 2022, and Washington, California, and Rhode Island have EPT laws going into effect in 2023. The requirements to publish salary information in job postings will impact employers’ PERM applications. For example, salary information may have to be disclosed in recruitment activities other than the Notice of Filing. The attorneys at Iandoli Desai & Cronin are monitoring these developments and will contact any clients who may be affected by the passage of new EPT laws. If you have employees working in one of the mentioned states and/or have questions about how this could impact sponsoring foreign workers for permanent residency, please do not hesitate to contact our office at info@iandoli.com.

Immigration and Customs Enforcement Extends I-9 Compliance Flexibility to July 31, 2023

On October 11, 2022, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 flexibilities first announced in March 2020 and updated in March 2021.
Due to the continued safety precautions related to COVID-19, Form I-9 flexibilities will be extended until July 31, 2023.

The current I-9 flexibilities state that if an employee is hired on or after April 1, 2021 and works exclusively in a remote setting due to COVID-19-related precautions then they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. For more information, please see the March 2020 and updated 2021 guidance.

Erroneous Terminations of F and J Students in SEVIS Reported

AILA (American Immigration Lawyers Association) members have reported that some J-1 Exchange Visitors and F-1 Students saw their SEVIS records erroneously terminated due to a change of status to H-1B when there was a consular processing decision instead. Those affected should contact their school DSO/ARO to have this error corrected.

D.C. Circuit Holds that Optional Practical Training (OPT) for F-1 Students is Valid

After eight years of litigation, the U.S. Court of Appeals for the D.C. Circuit held on October 4, 2022, that Optional Practical Training (OPT) – employment authorization for college graduates – is valid and that allowing international students to work in positions connected to their studies was within the Department of Homeland Security’s authority (Washington Alliance of Technology Workers v. United States Department of Homeland Security, et al). The Washington Alliance of Technology Workers commenced litigation against the Department of Homeland Security when OPT was expanded from one to up to three years for STEM degree holders, arguing that DHS did not have the authority to do so. The D.C. Circuit disagreed and pointed out that practical training for international students dates back over 70 years, and Congress has repeatedly acquiesced over the years. In a 2 to 1 decision, Judge Pillard writes:

“History corroborates that Congress meant what it plainly said in the INA when it granted DHS authority in section 1184(a)(1) to set the conditions of F-1 students’ admission…And across decades of the Executive doing so openly, we have explained, Congress has chosen to maintain the relevant provisions of the F-1 student category when it enacted the INA in 1952 and made many ensuing amendments—all of which preserved both the F-1 category and the section 1184(a)(1) authority under which the Executive had long granted work authorizations.”