Mass. Senate budget would extend in-state tuition to undocumented immigrant students
On May 7, 2023, State Senate leaders in Massachusetts presented a budget plan that includes extending would extend in-state tuition rates to undocumented immigrant students who graduate from Massachusetts high schools. This $55.8 billion budget proposal is lower than the $56.2 billion budget proposed by the House, in addition to adding the proposal for in-state tuition. The differences between the two budget bills will need to be rectified before the bill can be sent to the Governor later this summer.
Currently, undocumented immigrants who live in Massachusetts are not eligible for the lower, in-state tuition rates at public colleges and universities. The Senate’s budget would make all students eligible for in-state tuition, regardless of immigration status, as long as they attend a Massachusetts high school for at least three years and graduate or earn a GED in the state.
Twenty-three states and Washington, D.C. currently offer in-state tuition to undocumented immigrants. In state tuition for undocumented students has been proposed in Massachusetts before, but was vetoed by the governor in 2006, and was rejected by the House of Representatives in 2006. The budget bills will need to be debated in the State Legislature before being sent to the Governor over the summer.
The Student and Exchange Visitor Program (SEVP) ended its COVID-19 guidance on May 11, 2023, consistent with the end of the COVID-19 Public Health Emergency on May 11, 2023.
On May 11, 2023, the Student and Exchange Visitor Program (SEVP) announced the end of its Corona Virus (COVID-19) guidance, consistent with the end of the COVID-19 Public Health Emergency. This announcement was made after the President officially announced the end of the COVID-19 National Emergency on April 10, 2023.
While the SEVP’s COVID-19 guidance is terminated as of May 11, 2023, Active F and M students will be able to complete the 2022-23 academic year under the COVID-19 flexibilities through the 2023 summer semester. However, active F and M students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v) for the 2023-24 academic year.
Initial or re-entering students must enroll in programs complying with the regulatory limits for distance learning as stated in 8 CFR 214.2(f)(6)(i)(G). Designated school officials should not issue Forms I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” for students in new or initial status who are outside of the United States who plan to take classes at an educational institution certified by SEVP for a program of study that contains online components in excess of the regulatory limits.
For schools, while all previously submitted procedural change plans are voided as of May 11, 2023, Active F and M students will be able to complete the 2022-23 academic year under the flexibilities through the 2023 summer session. With the beginning of the fall 2023 session, schools must comply with all regulatory limits in 8 C.F.R. 214.2(f), 8 C.F.R. 214.2(m), 8 C.F.R. 214.3 and 8 C.F.R. 214.4.
The Department of Homeland Security is ending temporary I-9 flexibilities
The U.S. Department of Homeland Security has announced that COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, will end on July 31, 2023. U. S. Immigration and Customs Enforcement (ICE) has also announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by August 30, 2023.
This new announcement gives employers additional time to complete in-person physical inspection of identity and employment authorization documents for employees hired during the pandemic who did not undergo the usual physical inspection of documents and annotate the Form I-9 for this population. These flexibilities were initially announced in March 2020 and updated in March 2021.
DHS Announces Upcoming Re-parole Process for Afghan Nationals
On May 5, 2023 the Department of Homeland Security (DHS) announced it is establishing a process to re-parole eligible Afghan nationals so they can continue living and working legally in the United States. Beginning in June, Afghan nationals who arrived in the United States under humanitarian parole through Operation Allies Welcome (OAW) will be able to request a re-parole through online and paper filing. As with any parole request, these requests will be considered on a case-by-case basis for urgent humanitarian reasons and significant public benefit.
Afghan nationals are encouraged to pursue a permanent status in the United States for which they may be eligible, including through the Special Immigrant and Asylum processes, and are encouraged to create or update online accounts on myUSCIS. More information about services and programs available to Afghan nationals can be found here on USCIS’s webpage dedicated to this information.
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.