Senate passes resolution to overturn Biden administration rule that does not penalize immigrants for receiving government benefits

On May 17, 2023, The Senate passed a resolution overturn a Biden administration immigration rule that eliminates potential hurdles for immigrants using some public benefits and trying to obtain legal status, known as “public charge.”  Under the current rule, USCIS considers an applicant’s current and/or past receipt of public cash assistance for income maintenance. Public cash assistance for income maintenance includes only the following:

• Supplemental Security Income (SSI);

• Cash assistance under the Temporary Assistance for Needy Families (TANF) program; and

• State and local cash assistance programs that provide benefits for income maintenance (often called ‘‘General Assistance’’ programs).

USCIS also considers an applicant’s institutionalization for long-term care at government expense, such as in a nursing home or mental health institution. USCIS does not consider noncash benefits in making public charge determinations. The only noncash benefit considered in a public charge determination is long-term institutionalization at government expense. USCIS also does not consider special-purpose cash assistance that is not intended for income maintenance.  More information about the current public charge guidelines can be found here.

The resolution is an effort to return to the Trump administration policy, which made it more difficult for immigrants to obtain legal status if they applied for and received public benefits.

It is a joint resolution, meaning it would need to pass in the House as well before it can be sent to the President for signature, and the House has not yet voted on it. However, it is likely that the President will issue a veto if the resolution also passes in the House.

USCIS Updates Review Process for the Processes for Cubans, Haitians, Nicaraguans, and Venezuelans

On May 17, 2023, USCIS announced an updated review process for granting travel authorization for up to 30,000 noncitizens each month on a case by case basis under the processes for Cubans, Haitians, Nicaraguans, and Venezuelans seeking humanitarian parole in the U.S.

USCIS is updating this review process because the number of supporters who have submitted Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, is significantly higher than the 30,000 monthly travel authorizations available. The updated review process is intended to maintain a meaningful and equitable opportunity for all beneficiaries of Form I-134A to move forward through the process and seek advance travel authorization.

Under the new review process that went into effect on May 17, USCIS will randomly select about half of the monthly total, regardless of filing date, from the entire pending workload of Form I-134A to determine whether the case can be confirmed. USCIS will review the other half of the monthly total of Forms I-134A based on when the case was submitted under the first-in, first-out method, which prioritizes the oldest Forms I-134A for review.

Supporters of these beneficiaries should not submit a duplicate Form I-134A for the same beneficiary. USCIS will not accept a duplicate Form I-134A if a previously submitted Form I-134A between the same potential supporter and beneficiary is pending. If USCIS does not confirm  Form I-134A, but a supporter believes they meet the requirements to be a supporter under the process, they may file a new Form I-134A and submit additional information as evidence of their eligibility.

Under this updated review process, processing times will vary. Potential supporters may monitor the status of a Form I-134A they filed in their USCIS online account or check the most recent status in Case Status Online. The USCIS Contact Center cannot provide any additional information about the status of any individual case.

USCIS Extends and Expands Employment Authorization for Hong Kong Residents Covered by DED

On May 3, 2023, USCIS posted a Federal Register notice extending and expanding Hong Kong residents’ eligibility for Deferred Enforced Departure (DED). The notice also explains how eligible residents of Hong Kong may apply for Employment Authorization Documents (EADs). President Biden previously issued a memorandum extending and expanding DED for certain Hong Kong residents for 24 months. Eligible Hong Kong residents covered under DED as of Jan. 26, 2023, may remain in the United States through Feb. 5, 2025, and are eligible to work in the United States.

Hong Kong residents are covered under DED based on the terms described in the president’s memorandum and no application is necessary. However, eligible Hong Kong residents may apply for an EAD by filing Form I-765, Application for Employment Authorization.

The memorandum also directs DHS to extend employment authorization for Hong Kong residents covered under DED and to provide for the prompt issuance of new or replacement documents in appropriate cases. USCIS is automatically extending the validity of Hong Kong DED-based EADs through Feb. 5, 2025, for those who already have an EAD with an A-11 category code on the card and an expiration date of Feb. 5, 2023. These EADs remain valid, even though the expiration date on the face of the card has passed. An individual does not need to apply for a new EAD to benefit from this automatic EAD extension. Individuals who want a new DED-based EAD showing a Card Expires date of Feb. 5, 2025, must file Form I-765.

Travel authorization (advance parole) for residents of Hong Kong will be issued at the Department of Homeland Security’s discretion. Individuals who wish to travel outside of the United States based on DED must file Form I-131, Application for Travel Document, to request advance parole.

May 2023 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.

In May, the EB-1 preference category on the Final Action Chart for all countries, excluding China and India, will be “current.” This means the I-485 applications may be filed immediately with the Form I-140. The EB-1 priority date for India and China is February 1, 2022. This means an otherwise qualified national of China or India with an approved EB-1 I-140 may file the I-485 in May if their priority date is earlier than February 1, 2022.

The EB-2 and EB-3 preference categories remains backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority date becomes “current.”

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).

Department of Homeland Security Publishes Notice of Special Student Relief for Hong Kong Residents in F-1 Status

The U.S. Department of Homeland Security posted a notice in the Federal Register that provides Special Student Relief (SSR) employment benefits for F-1 students from Hong Kong. The notice extends SSR for eligible students to February 5, 2023. SSR suspends on-campus and off-campus employment regulations for eligible students due to emergent circumstances in Hong Kong that have created significant financial hardships.

Premium Processing is Available for F-1 Students Seeking Optional Practical Training

On March 6, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that premium processing would be expanded for F-1 students seeking Optional Practical Training (OPT) and STEM OPT extensions with a pending Form I-765, Application for Employment Authorization. Effective April 3, 2023, premium processing was expanded to also include initial filings of Form I-765 for OPT and STEM OPT, when filed together with Form I-907. Students may file their applications with premium processing via a paper application or online through their myUSCIS account.

Department of State Publishes Notice on Special Student Relief for Ukrainian J-1 Students

On April 5, 2023, the Department of State (DOS) published a notice in the Federal Register that provides Special Student Relief arrangements for eligible Ukrainian J-1 exchange visitors in the College and University Student category, which will remain in effect until October 23, 2023. Ukrainians who meet the criteria will be eligible for modified requirements for a full course of study and on and off-campus employment.

Office of Foreign Labor Certification (OFLC) Issues a Decision on Question H.10-B “Acceptable Alternative Occupation Title” on Form 9089

OFLC has evaluated denials of PERM applications based upon the employers’ answers to Question H.10-B “Acceptable Alternative Occupation Title” on Form ETA 9089 and determined that these denials were appropriate. However, OFLC also acknowledges that it has not been consistent in its denials, which has led to confusion among employers. As a result, OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point the updated version of Form ETA 9089 in the Foreign Labor Application Gateway system should be effective. Further, OFLC will overturn denials based solely on this issue. Denials of Form ETA 9089 based on this ground were predicated on the determination by OFLC that Question H.10B was being answered incorrectly when employers entered statements such as “See H.14 – Special Skills.” OFLC justified these denials by stating, “The information provided in H.14 does not identify what alternate occupations are acceptable to meet the experience requirements for the job that is the subject of the PERM application. Instead, the application only lists a series of the special skills requirements and/or other alternative combinations of education and experience that the employer is willing to accept. As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete.” OFLC expects to issue guidance in the near future, if necessary, to clarify how employers should incorporate this information in pending Form ETA 9141, Prevailing Wage Determinations into the new version of Form ETA 9089.

Office of Foreign Labor Certification (OFLC) Announces Timeline for New Form 9089

The Office of Foreign Labor Certification (OFLC) announced that it will phase out its legacy PERM Online System on May 15, 2023, at 6:59pm EST. OFLC conducted two webinars in April to provide stakeholders updates on the new PERM Form ETA 9089 that will go into effect on May 16, 2023. Recordings of each webinar (one and two) are available on the OFLC website. Beginning May 16, 2023, OFLC will only accept the revised Form ETA 9089 that is available on the Foreign Labor Application Gateway (FLAG) website. The revised ETA Form 9089 was posted to the FLAG system on April 24, 2023, so that filers can begin to review and prepare applications in advance of May 16th. OFLC has also provided a watermarked version of the revised ETA Form 9089 on its website for informational purposes.

COVID-19 Vaccine Requirement for International Travel will End on May 15, 2023

The Biden-Harris Administration announced that the COVID-19 vaccine requirements for international air travelers will end on May 11, 2023, which is the same day the COVID-19 public health emergency ends. The Administration reported that COVID-19 deaths have declined by 95% since January 2021 and hospitalizations are down by more than 90%.