The U.S. Department of State’s IDEAS Program announces the launch of its 2023 IDEAS grant competition

The U.S. Department of State’s IDEAS Program has announced the launch of its 2023 IDEAS grant competition, which provides grants of up to $35,000 to U.S. colleges and universities to develop study abroad partnerships, programs, and resources aligned with U.S. foreign policy goals. Accredited U.S. colleges and universities are invited to submit applications for projects to create, expand, and/or diversify their study abroad programming for U.S. students.

The 2023 grant competition will award approximately 30 grants of up to $35,000 each to accredited colleges and universities. This grant cycle will also include a pilot opportunity for a consortia of U.S. colleges and universities to apply for an IDEAS consortium grant of up to $50,000 for collaborative projects focused on building study abroad capacity at higher education institutions serving Indigenous peoples of the United States. At least one IDEAS consortium grant will be awarded in this category.

The 2023 Request for Proposals (RFP) process is divided into two phases to make the grant competition more accessible and equitable, in particular for lower-resourced institutions whose staff may not have extensive grant-writing experience. In Phase One of the RFP process, U.S. colleges and universities will submit a brief proposal describing the concept and general components of their proposed projects to build, diversify, and/or expand study abroad capacity at their institutions. The IDEAS Program will then invite approximately 65 semi-finalist applicants to submit full proposals during Phase Two of the competition. 

Phase One of this competition opened on October 26, 2022, and close on December 16, 2022, at 11:59pm Eastern Standard Time via the IDEAS Grant Competition Application Portal. You can learn more about the IDEAS Program and access the grant competition RFP on the IDEAS Program website.

U.S. Department of Education no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency

On November 1, 2022, USCIS addressed the U.S. Department of Education’s announcement from August 19, 2022 that it would no longer recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. This determination immediately affects two immigration-related student programs:

• English language study programs, as the programs are required to be accredited under the Accreditation of English Language Training Programs Act; and 

• F-1 students applying for a 24-month science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension, as the regulations require them to use a degree from an accredited, Student and Exchange Visitor Program (SEVP) certified school for their STEM OPT extension. The school must be accredited at the time of the application; this is the date of the designated school official’s (DSO) recommendation on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status. M-1 students are not eligible for OPT.

SEVP (The Student and Exchange Visitor Portal) will provide guidance to affected students in notification letters if their schools’ certification is withdrawn. However, students enrolled at an ACICS-accredited school should contact their DSOs immediately to better understand if and how the loss of recognized accreditation will affect their status and/or immigration benefits applications.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school chooses to voluntarily withdraw its certification or is withdrawn by SEVP. If a student’s ACICS-accredited school can provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation within the allotted timeframe, the student may remain at the school to complete their program of study.

USCIS will issue requests for evidence (RFEs) to any individual who has filed Form I-539, Application to Extend/Change Nonimmigrant Status, on or after Aug. 19, 2022, requesting a change of status or reinstatement to attend an ACICS-accredited English language study program. Upon receiving an RFE, individuals will have an opportunity to provide evidence in response, such as documentation showing that the English language study program they are seeking to enroll in meets the accreditation requirements.

If the student does not submit a new Form I-20 from a school accredited by an entity recognized by ED, USCIS will deny a change of status or reinstatement request.

F-1 students wishing to participate in the STEM OPT extension program must have a degree from an ED-recognized accredited U.S. educational institution at the time they file their STEM OPT application. As noted above, USCIS considers the filing of the application to be the date of the DSO’s recommendation on the Form I-20.

USCIS will issue a denial to any F-1 student filing a Form I-765 STEM OPT extension if:

• The STEM degree that is the basis for the STEM OPT extension was obtained from a college or university that was accredited by ACICS; and

• The student’s DSO recommendation for a STEM OPT extension, as indicated on Form I-20, is dated on or after Aug. 19, 2022 (the date when ACICS ceased to be recognized as an accrediting agency).

Because students must use a STEM degree from an accredited, SEVP-certified school at the time of application, the ACICS loss of recognition as an accrediting agency prevents these students from qualifying for a STEM OPT extension. Students who receive a denial will have 60 days to prepare for departure from the United States, transfer to a different school, or to begin a new course of study at an accredited, SEVP-certified school.

Students whose Forms I-20 have a DSO recommendation date prior to Aug. 19, 2022, are not affected.

The loss of recognition also means that colleges and universities that are only accredited by ACICS are no longer considered accredited institutions for immigration purposes, and any degrees conferred by those colleges and universities on or after Aug. 19, 2022, will no longer qualify as a U.S. degree in terms of qualifying for the H-1B advanced degree exemption (also known as the master’s cap) or for the beneficiary requirements at 8 CFR 214.2(h)(4)(iii)(C)(1).

For beneficiaries who hold affected degrees, the loss of recognition also affects those I-140 petitions filed under the advanced degree and professional classifications where the beneficiary’s educational credentials must be a U.S. degree or foreign equivalent degree. See 8 CFR 204.5(k)(2) and 8 CFR 204.5(l)(2). However, a degree conferred by those colleges and universities before Aug. 19, 2022, while the college or university was accredited, is generally considered to be a degree from an accredited institution, and can be used to qualify for the H-1B master’s cap or for the beneficiary requirements at 8 CFR 214.2(h)(4)(iii)(C)(1) and I-140 petitions filed under the advanced degree and professional classifications, as long as all other requirements are met.

The loss of recognition also affects cases in which the employer/petitioner is claiming an H-1B cap or ACWIA fee exemption as an institution of higher education. To qualify for an H-1B cap or ACWIA fee exemption, the university or college must meet the definition of an “institution of higher education” in 20 U.S.C. 1001(a). That definition requires, in pertinent part, that the institution “is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency….” Those institutions that are no longer recognized by a qualified accreditation agency, or otherwise recognized as preaccredited, would no longer qualify for an exemption from the H-1B cap or the ACWIA fee, unless they are exempt on another basis.

DHS Begins Limited Implementation of DACA under Final Rule

On Monday, October 31, 2022, the Department of Homeland Security’s final rule (PDF) to preserve and fortify Deferred Action for Childhood Arrivals (DACA) went into effect. The final rule’s implementation means that DACA is now based on a formal regulation, thereby preserving and fortifying the program while the program remains the subject of litigation in court. Up until now, DACA has been based on a policy memorandum that then-DHS Secretary Janet Napolitano issued on August 15, 2012.

Under the final rule, USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to ongoing litigation, USCIS will continue to accept requests, but will not be able to process initial DACA requests. Per the statement from Secretary of Homeland Security Alejandro N. Mayorkas, legislation from Congress will be needed to provide permanent protection to DACA recipients and applicants.

The final rule is a product of careful review that considered the more than 16,000 comments received during the public comment period. It codifies existing DACA policy, with limited changes, and replaces the guidance set forth in the 2012 Napolitano memorandum (PDF).

The final rule affirms that:

• Current DACA recipients’ deferred action, employment authorization, and advance parole will continue to be recognized as valid under the final rule.

• DACA is not a form of lawful status but DACA recipients are considered “lawfully present” for certain purposes.

• Non-citizens who meet eligibility criteria, clear all national security and public safety vetting, and are found to merit a favorable exercise of discretion may be granted deferred action and obtain renewable two-year work authorization. Given pending litigation, however, the Department is currently barred from granting deferred action to any new DACA recipients.

On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit affirmed a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful. The Fifth Circuit, however, preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DACA rule. On Oct. 14, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay of the DACA final rule.

Current grants of DACA and related Employment Authorization Documents are valid, and USCIS will accept and process renewal DACA requests and accompanying requests for employment authorization under the final rule.

For more information, visit USCIS’ DACA webpage.

USCIS Announces Certain Afghan and Ukrainian Parolees Are Employment Authorized Incident to Parole

Pursuant to recent laws passed by Congress and Department of Homeland Security regulations, USCIS has announced that effective Nov. 21, 2022, Ukrainian and Afghan parolees, and their qualifying family members, with certain classes of admission are considered to have employment authorization incident to parole.  This means that these individuals do not need to wait for USCIS to approve their Form I-765, Application for Employment Authorization, before they can work in the United States. This updated policy guidance applies to the following individuals, provided their parole has not been terminated:

• Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR.” If you are an Afghan parolee covered under section 2502(b), P.L. No. 117-43 who did not receive an “OAR” class of admission on your Form I-94, please email U.S. Customs and Border Protection at oawi94adjustments@cbp.dhs.gov to update your class of admission, if appropriate;

• Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and

• Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between Feb. 24, 2022, and Sept. 30, 2023, and indicates Ukraine as the country of citizenship on the document.

For these parolees, their unexpired Form I-94 is an acceptable receipt they may present to their employer to show their identity and employment authorization for the purposes of Form I-9, Employment Eligibility Verification. The receipt satisfies the Form I-9 requirement for 90 days from the date of hire (or in the case of reverification, the date employment authorization expires). Individuals who received a Form I-94 when they entered the United States should visit U.S. Customs and Border Protection’s Form I-94 page to view and print a copy of their Form I-94. If you do not have a passport, you can use your A-Number to retrieve your Form I-94 online at the site above by choosing “Get Most Recent I-94.” Enter your A-Number in the Document Number field and enter your country of citizenship or “USA” in the Country of Citizenship field.

After the 90-day period, parolees must present an EAD or unrestricted Social Security card and acceptable List B identity document from the Form I-9 Lists of Acceptable Documents (such as a state-issued driver’s license or identification card). Ukrainian and Afghan parolees must still file a Form I-765 to receive a physical EAD. USCIS will provide additional guidance for employers about completion of Form I-9, Employment Eligibility Verification.

Effective Nov. 21, 2022, USCIS is also exempting the fee to file Form I-765 for Ukrainian parolees filing for an EAD by mail. Afghan parolees under OAW are already exempt from the fee for an initial paper-filed Form I-765 (and a replacement EAD) through Sept. 30, 2023.

Effective Dec. 5, 2022, USCIS will be able to process fee exemptions for online filings of Form I-765 for eligible Ukrainian and Afghan parolees. USCIS encourages the use of online filing for more efficient processing.

Please refer to USCIS’s Uniting for Ukraine and Information for Afghan Nationals webpages for more information about submitting Form I-765.  Additionally, please refer to USCIS’s File Online webpage for more information about creating an account and filing online.

USCIS Extends and Expands Fee Exemptions and Expedited Processing for Afghan Nationals

On November 22, 2022, USCIS announced it is extending and expanding filing fee exemptions and expedited application processing for certain Afghan nationals (previously announced on November 8, 2021). This is intended to assist Afghan nationals as they resettle, and in many cases reunite with family, in the United States by enabling USCIS to process their requests for work authorization, long-term status, status for immediate relatives, and associated services more quickly. USCIS encourages interested parties to use the webpages listed below to learn more about the eligibility details for each type of filing.

Certain Afghan nationals are eligible for the following fee exemptions and expedited processing, through Sept. 30, 2023:

• Fee Exemptions

  • An initial or replacement Form I-765, Application for Employment Authorization, for Afghan nationals who are applying for work authorization on the basis of parole (eligibility category (c)(11));

  • Form I-485, Application to Register Permanent Residence or Adjust Status, to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601, Application for Waiver of Grounds of Inadmissibility;

  • Form I-130, Petition for Alien Relative, filed with USCIS in the United States on behalf of any Afghan national (beneficiary) with a visa immediately available;

  • Form I-824, Application for Action on an Approved Application or Petition, for an Afghan holding a Special Immigrant Visa;

  • Form I-601 for any Afghan national with an approved Form I-130 with a visa immediately available; and

  • USCIS Immigrant Fee (Form I-551) for Afghan nationals.

• Expedited Processing:

  • An initial and replacement Form I-765 for those applying for employment authorization on the basis of parole (eligibility category (c)(11));

  • Form I-485 for Afghan nationals seeking to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601;

  • Form I-589, Application for Asylum and for Withholding of Removal, filed by certain Afghan parolees as described in Section 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act;

  • Form I-130, filed with USCIS in the United States on behalf of an Afghan national (beneficiary) with a visa immediately available, and any associated Form I-601; and

  • Form I-140, Immigrant Petition for Alien Workers, filed with USCIS on behalf of an Afghan national (beneficiary) with a visa immediately available.

USCIS’s Information for Afghan Nationals webpage has additional information for Afghan nationals.

DHS Continues Temporary Protected Status and Related Documentation for Certain Beneficiaries of TPS

On November 10, 2022, the Department of Homeland Security (DHS) posted a Federal Register Notice announcing the continuation of Temporary Protected Status (TPS) and certain related benefits for beneficiaries under the TPS designations that remain subject to the court orders in ongoing lawsuits (Ramos et al. v. Nielsen and Bhattarai et al. v. Nielsen et al.)

TPS beneficiaries under the designations for El Salvador, Honduras, Nicaragua, and Nepal, as well as the 2011 Haiti designation and the 2013 Sudan designation will retain their TPS while the preliminary injunction in Ramos and the stay of proceedings order in Bhattarai remain in effect, provided they continue to meet all the individual requirements for TPS eligibility. The automatic extension of TPS-related documentation includes specified Employment Authorization Documents (EADs) through June 30, 2024. These current beneficiaries do not need to pay a fee or file any application to maintain their TPS and have their TPS-related documentation automatically extended.

Beneficiaries who want a new EAD with the new expiration date of June 30, 2024 displayed on the EAD must file Form I-765, Application for Employment Authorization, along with the filing fee or a fee waiver request. The Federal Register Notice explains how TPS beneficiaries, their employers and benefit-granting agencies may determine which EADs are automatically extended for the beneficiaries.

Individuals who were newly granted TPS under the 2021 TPS designation of Haiti or the 2022 TPS designation of Sudan, but who did not have TPS under the 2011 Haiti designation or the 2013 Sudan designation, are not covered by this litigation compliance notice. Their TPS grants remain valid in accordance with their individual notices of approval from USCIS. In order to receive TPS under the new Haiti or Sudan designations, eligible individuals must apply before the close of the registration periods on Feb. 3, 2023 (for Haiti), and Oct. 19, 2023 (for Sudan).

DHS has published regular notices to ensure its continued compliance withthe Ramosand Bhattarai court orders since issuance of those orders. DHS last published a Federal Register Notice to ensure its continued compliance with these combined court orders on Sept. 10, 2021. That notice again continued TPS and extended certain TPS-related documentation through Dec. 31, 2022, for all eligible TPS beneficiaries covered by the courts’ orders.

Additionally, according to USCIS’s announcement on November 17, 2022 on this subject, individuals with a pending or approved TPS application may qualify for certain public benefits and REAL ID driver's licenses and identification cards. When applying for a Federal, state, or local government benefit, individuals will need to show a document proving they applied for or are beneficiaries of TPS. They may provide a TPS-based EAD with a category code of A12 or C19, or a copy of their Form I-797, Notice of Action, for a current Form I-821, Application for Temporary Protected Status.

SAVE (the Electronic Immigration Status Verification used by many agencies) will be able to verify an individual's TPS or pending TPS application (and any employment authorization, including any EAD auto-extension) using information from the documents noted above. In some instances, the benefit-granting agency may need to institute additional verification.

For more information regarding the automatic extension of TPS-related documents for beneficiaries from the six designated countries, including which documents have been automatically extended, please refer to the Federal Register Notice dated November 16, 2022.

Additional information related to TPS is available on USCIS’s Temporary Protected Status page.

H-1B Planning Season is Upon Us

H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience).  Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.

Now is the best time for employers to decide whether they will file H-1B petitions and for whom.  It is good to both start the internal discussions and to initiate the process  as the H-1B lottery registration for the new fiscal year cap, including those eligible for the advanced degree exemption, will be in March. The H-1B random lottery process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.

Information about the impact of recent layoffs on visa status

Recent layoffs in the tech sector require foreign nationals holding H-1B visa status to look for a new position; generally, a grace period of up to 60 days grace period is permitted.  During that time period, the H-1B visa holder must secure a new H-1B eligible position and sponsorship by the new employer to file an H-1B petition or file a request for change of status to another qualifying category.   Contact attorneys at ID&C if you wish to obtain more information about this topic.

USCIS Recommendations for Paper Filings to Avoid Scanning Delays

On November 16, 2022, USCIS issued some guidance and recommendations regarding paper filings to improve efficiency, as the agency now scans and uploads many documents into electronic database systems. To avoid delays and improve scanning efficiency, USCIS recommends the following for paper filings:

• Do not hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another.

• Do not include photos or documents smaller than 4x6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when USCIS requests a passport photo with the filing.

• Do not include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. USCIS will not accept these types of materials. However, USCIS will accept photographs or photocopies of these items.

• Do not submit forms or evidence documents bound with a binding or spiral wire/plastic.

• Do not submit evidence using photo albums, scrapbooks, binders, or greeting cards.

• Do not fold documents.

• Do not place sticky notes on documents.

• Do not use insertable tab dividers.

• Do not print forms on colored paper.

• Do not submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If applicants are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended.

• Do not send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:

  • required by the form instructions for the application, petition, or request you are filing; or

  • USCIS specifically issues a request for applicants to submit an original document.

These recommendations are offered to improve USCIS efficiency while processing applications, petitions, or requests.

Using SAVE’s CaseCheck Tool

In order to process an application for a benefit or license with a federal, state, or local government agency, these agencies may need to verify applicants’ immigration status to process the application. To verify an applicant’s status, agencies use the SAVE Program (the Electronic Immigration Status Verification system). CaseCheck, a free and fast service, lets applicants follow the progress of their SAVE verification case online.

Applicants may check the status of their SAVE verification at USCIS’s webpage here.  Applicants will need to enter their date of birth along with their verification case number, provided by the relevant agency or the number from one of the following immigration documents:

• Certificate of Citizenship

• Certificate of Naturalization

• I-20 Certificate of Eligibility for Nonimmigrant Student Status

• I-94 Arrival/Departure Record

• I-94 stamp in Unexpired Foreign Passport

• I-551 Permanent Resident Card

• I-765 Employment Authorization Card

More information about this tool can be found at USCIS’s SAVE CaseCheck webpage here.