COVID-19 Form I-9 Flexibilities to Expire at the end of July
The COVID-19 pandemic flexibilities associated with Form I-9 requirements that have been in place since March 2020 are set to expire on July 31, 2023. Immigration and Customs Enforcement (ICE) is encouraging employers who have been using the temporary flexibilities to plan ahead to make sure that all of the required physical inspection of identity and employment eligibility documents has been completed by August 30, 2023.
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USCIS Provides Guidance on Eligibility for Employment Authorization Documents (EADs) Based on Compelling Circumstances
Earlier this month, USCIS published guidance laying out the eligibility criteria for Employment Authorization Documents (EADs) based on compelling circumstances. This employment authorization may be provided to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions and their qualifying spouse and children, and who are caught in the continually expanding backlogs for immigrant visas and are facing compelling circumstances. This stopgap measure is intended to address certain particularly difficult situations, including those that previously may have forced individuals on the path to lawful permanent residence to abruptly stop working and leave the United States.
Category (c)(35) is for principal beneficiaries of approved Form I-140s who are in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status and are applying for an initial grant of employment authorization based on “compelling circumstances,” or a renewal of such authorization.
Category (c)(36) is for qualifying dependent spouses and children of a principal beneficiary granted employment authorization under category (c)(35).
USCIS may grant employment authorization and issue an Employment Authorization Document (EAD) in these two categories for up to one year if we determine that there are compelling circumstances that justify issuing employment authorization.
NOTE: USCIS considers an applicant with a valid EAD based on compelling circumstances to be in a period of authorized stay by the Secretary of Homeland Security. If you receive a compelling circumstances EAD, and begin working based on this EAD, you will be in a period of authorized stay, but you will no longer be maintaining your nonimmigrant status. However, you generally will not accrue unlawful presence in the U.S. while the EAD is valid or, if you filed a non-frivolous application on time, while your application is pending.
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Canadian Government Announces New Immigration Policy to Attract H-1B Holders and other Tech Talent
On June 27, 2023, the Honourable Sean Fraser, the Canadian Minister of Immigration, Refugees and Citizenship, announced the launch of Canada’s first-ever Tech Talent immigration strategy.
This immigration strategy is designed to help businesses in Canada thrive and include aggressive immigration attraction measures, such as some of the items indicated below:
The creation of an open work permit visa pathway for H-1B visa holders in the US to apply for a Canadian work permit, and study or work permit options for their accompanying family members;
The development of an “Innovation Stream” to attract highly talented individuals;
The promotion of Canada as a destination for remote workers (“digital nomads”); and Improvements to the Start-Up Visa Program, among others.
The Canadian government is embracing and promoting Canada’s emerging role as a leader in global tech talent recruitment. Their goal is to ensure that Canada is able to satisfy current employment needs and attract individuals with the skills and business talent necessary for the future.
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Biden Administration Announces Future Launch of Pilot Program for Certain Indian H-1B Beneficiaries to Obtain Visa Stamps From Within the US
(***PLEASE NOTE THERE ARE NO ADDITIONAL DETAILS ABOUT THE PILOT PROGRAM AVAILABLE AT THIS TIME***)
On June 22, 2023, the Biden Administration announced the planned launch of a pilot program later this year to allow for the domestic renewal of certain petition-based temporary work visas, including for Indian nationals. The Department of State (DOS) will implement this pilot program for an expanded pool of H-1B and L visa holders in 2024, with the goal of eventually broadening the program to include other eligible categories.
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Secretary Mayorkas Appoints New Members to Academic Council to Advise DHS
On June 21, 2023, U.S. Department of Homeland Security (DHS) Secretary Mayorkas appointed new members to the Homeland Security Academic Partnership Council (HSAPC) that advises DHS. The council will provide advice and strategic recommendations to the Secretary on topics such as campus safety and security, improved coordination, research priorities, hiring, and more. The newly appointed members are a diverse group representing higher education associations, campus law enforcement, two- and four-year colleges and universities, Historically Black Colleges and Universities, Hispanic-Serving Institutions, Tribal Colleges, and Asian American and Pacific Islander-Serving Institutions.
The HSAPC will provide advice and recommendations in response to taskings by the Secretary on matters that may relate to, but are not limited to:
Safety and security, including prevention, response, mitigation, recovery, and other emergency management and preparedness measures.
Improving coordination and sharing of actionable threat and security-related information, including threats of violence as well as targeted violence and terrorism prevention.
Methods to develop career opportunities to support a 21st century DHS workforce.
Enhancing and expanding research opportunities, such as the DHS Science and Technology Centers of Excellence and DHS/National Security Agency joint Centers of Academic Excellence.
To leverage the broadest range of professional experience as well as diverse, inclusive membership, HSAPC members represent one or more of the following categories for a two-year term:
Academic associations
School safety, campus safety, public safety, or emergency management associations
State, local, or tribal law enforcement or related association
A public or private:
Four-year college or university
Two-year community college
Minority-Serving Institution (MSIs)
A K-12 public school system
Education Employee Association or Education Employee Labor Organization
A private sector company, non-governmental organization, or civil society Secretary Mayorkas appointed the following 20 members to the 30-person Council:
Elisa Villanueva Beard, CEO, Teach for America (Chair)
Dr. Walter Bumphus, President and CEO, American Association of Community Colleges (Vice Chair)
Carrie Billy, President, American Indian Higher Education Consortium
Alberto M. Carvalho, Superintendent, Los Angeles Unified School District
Dr. Miriam Feldblum, Executive Director, Presidents’ Alliance on Higher Education and Immigration
Dr. Antonio Flores, President, Hispanic Association of Colleges and Universities
Dr. Farnam Jahanian, President, Carnegie Mellon University
Dr. Mark E. Keenum, President, Mississippi State University
Dr. Cynthia Kelley, President, Madisonville Community College
Dr. Alex Marrero, Superintendent, Denver Public Schools
Honorable Ruby G. Moy, President, Asian Pacific Islander American Association of Colleges and Universities
Chief John Ojeisekhoba, President, International Association of Campus Law Enforcement Administrators
Assistant Chief Rudy Perez, President, National Association of School Resource Officers
Dr. Tamarah Pfeiffer, President, Southwestern Indian Polytechnic Institute
Michael Schill, President, Northwestern University
Dr. Cynthia D. Shapira, Chairperson, Board of Governors, Pennsylvania State System of Higher Education
Barbara Snyder, President, Association of American Universities
Dr. Adela de la Torre, President, San Diego State University
Suzanne Elise Walsh, President, Bennett College
Randi Weingarten, President, American Federation of Teachers
The Council will host its first public meeting, and any new members will be announced in the coming months. Following the meeting, tasks directed by the Secretary will be published in the Federal Register.
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USCIS Updates and Clarifies Policy on Role in Adjudication of Waivers and Change of Status Requests for J Nonimmigrant Exchange Visitors
On June 8, 2023, US Citizenship and Immigration Services (USCIS) published a Policy Alert updating the USCIS Policy Manual to include a new section dedicated to J visas: “Volume 2: Nonimmigrants - Part D: Exchange Visitors (J).” This update provides information about the role of USCIS in the adjudication of waivers and change of status applications for J visa holders.
The highlights of the policy update are:
An overview of general information about the exchange visitor (J) visa classification and an explanation of USCIS’ role in adjudicating change of status requests and applications for employment authorization for J-2 family members.
Explains the INA 212(e) foreign residence requirement and provides information about USCIS’ adjudication of available waivers, including for foreign medical graduates.
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USCIS Announced an Expansion of Premium Processing for Nonimmigrants Seeking to Change their Status into F, M, or J Visas
On June 12, 2023, U.S. Citizenship and Immigration Services (USCIS) announced the expansion of premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, and seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. Online filing of Form I-907, Request for Premium Processing Service, will also be available for these applicants.
The premium processing expansion for certain Form I-539 applicants occurred in phases:
Beginning June 13, USCIS began accepting Form I-907 requests, filed via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who have a pending Form I-539, Application to Extend/Change Nonimmigrant Status.
Beginning June 26, USCIS began accepting Form I-907 requests, filed either via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with Form I-539.
USCIS also provided several important reminders and clarifications:
This phase of premium processing service is only available for change of status requests. Premium processing is not available for individuals seeking an extension of stay in M-1 or M-2 status.
Individuals must submit Form I-907 the same way they submitted Form I-539.
Ex. If an applicant mailed a paper Form I-539 to us, they must mail a paper Form I-907; and if they submitted Form I-539 online, they must submit Form I-907 online.
Applicants must submit their biometrics before premium processing can begin for these specific categories. Even if USCIS accepts an applicant’s Form I-907 and accompanying fees, the time limit for premium processing will not start running until the applicant and all co-applicants included on the Form I-539 submit their biometrics. Please note, USCIS may reject an applicant’s Form I-907 and/or Form I-539 if submitted with another benefit request, including multiple Forms I-907 requests filed together.
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Nonimmigrant Visa Fee Increases Took Effect June 17, 2023
As of June 17, 2023, the nonimmigration visa (NIV) application processing fee for visitor visas for business or tourism (B1/B2s and BCCs), and other non-petition based NIVs such as student and exchange visitor visas (F, M, and J visas), will increase from $160 to $185. The fee for certain petition-based NIVs for temporary workers (H, L, O, P, Q, and R categories) will increase from $190 to $205. The fee for a treaty trader, treaty investor, and treaty applicants in a specialty occupation (nonimmigrant E category) visa will increase from $205 to $315. NIV fees paid prior to June 17, 2023, will remain valid through the expiration date on the fee receipt. This rule did not change any other fees, including the fee for a waiver of the two-year home residency requirement for certain exchange visitors.
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U.S. v Texas 8-1 SCOTUS Ruling Upholds Biden Administration Enforcement Priorities
On June 23, 2023, the Supreme Court (SCOTUS) upheld President Biden’s administration’s immigration enforcement guidelines. The case concerned the immigration enforcement priorities that the Biden administration had laid out in a memorandum regarding whom immigration authorities should focus their resources on when considering individuals for arrest and deportation. Texas and Louisiana sued to stop the implementation of the guidelines set out in the memo and stated that the guidelines prevented immigration officials from properly carrying out the duties of their jobs. The Supreme Court disagreed with Texas and Louisiana, voting 8 – 1 that the states lacked the appropriate standing to challenge the guidelines. Following this ruling, the Biden Administration’s guidelines will take effect. The guidelines focus on routing enforcement resources towards individuals who pose a threat to national security and public safety, as well as border security threats rather than diverting those resources to deporting an individual who is in the U.S. without authorization.
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The Work and Family Mobility Act becomes law in Massachusetts
Starting July 2023, eligible residents in Massachusetts can obtain a Standard (Class D or M) driver's license, regardless of immigration status, under the Work and Family Mobility Act.
To obtain a license, the Massachusetts Registry of Motor Vehicles (MA RMV) will require all applicants to prove their identity and date of birth, social security status, and Massachusetts residency. Drivers will also be required to pass a learner's permit exam, vision screening, and a road test.
The MA RMV has published a Work and Family Mobility Act website: http://mass.gov/WFMA. They have also launched a Work and Family Mobility Act informational phone line to provide information about how to apply for a standard driver’s license (in multiple languages): 857-9362 (WFMA).
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