Judge Hanan Declared DACA Program Unlawful, but Status Quo Remains for Now
On September 13, 2023, U.S. District Court Judge Hanan issued an order reaffirming a previous decision indicating that the Deferred Action for Childhood Arrivals (DACA) program is unlawful. The order extended the stay of the program issued by the district court and expanded it to cover the 2022 DACA regulation issued by the Biden Administration.
However, in practical terms, the new order will not affect the status quo at the moment:
Under the stay, individuals who currently have DACA will retain DACA status and the protection from enforcement it provides;
The order allows USCIS to continue to receive and process requests for DACA renewals from DACA recipients (as of July 6, 2021) or whose DACA protection has lapsed for less than one year; and
The court’s order bars USCIS from processing or granting DACA status for any new applications for DACA.
Currently valid grants of DACA and related EADs will continue to be recognized as valid under the Final Rule. This means that individuals with DACA and related EADs do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal.
Links:
USCIS DACA website: https://www.uscis.gov/DACA
Firm Spotlight
Mary E. Walsh, Partner at Iandoli Desai & Cronin, P.C. has been selected by the New England Chapter of the National Association of Foreign Student Advisors (NAFSA) to serve on its Government Relations Advisory Committee (GRAC) for a 3 year term. Attorney Walsh will advise on employment-based immigration processes for students, faculty, researchers, physicians and staff in New England colleges, universities and teaching hospitals. Attorney Walsh has also been selected to present at the NAFSA conference in Montreal this Fall on Leveraging the Designated School Official Role to Address Inequities in Employment Access, and on Navigating the Complexities of Hiring Foreign Medical Graduates & Physicians.
September 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 September, the EB-1 preference category on the Final Action Chart for all countries will be backlogged. The EB-1 priority date for China and India has remained February 1, 2022, and January 1, 2012, respectively. The EB-1 priority date for all other countries will be August 1, 2023. This means an otherwise qualified foreign national with an approved EB-1 I-140 may not file the I-485 in September if their priority date is later than what is listed on the Visa Bulletin.
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. There is no additional information at this time on how various backlogs will progress starting in the new fiscal year (October 1, 2023). Iandoli, Desai & Cronin will continue to monitor the situation and provide client updates if/when we receive additional information.
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
DHS Notice of Special Student Relief for Sudan and Ukraine
On August 18, 2023, DHS posted a notice in the Federal Register that provides Special Student Relief (SSR) employment benefits for F-1 nonimmigrant students from Ukraine and Sudan who are experiencing severe economic hardship as a result of ongoing conditions in their home countries. This notice extends relief from Oct. 20, 2023, until April 19, 2025, for eligible Ukrainian and Sudanese students.
SSR suspends certain regulatory requirements for an F‑1 student from countries that are experiencing “emergent circumstances” such as military conflict or natural disasters. Regulatory requirements that may be suspended or altered for an F-1 student include duration of status, full course of study and off-campus employment eligibility.
A list of active SSR notices can be viewed on the What’s New page on ICE.gov/SEVP.
Former F-1 Students from India File Lawsuit Against DHS for Visa Denials Based on Employers’ Fraud
On August 10, 2023, plaintiffs consisting of over 70 Indian F-1 students filed suit against the Department of Homeland Security (Sharma et al v. United States Department of Homeland Security) for denying their visa applications due to fraud committed by their employers. The plaintiffs were employed by four IT staffing companies that had committed fraud through their employment of students in F-1 OPT status: Andwill Technologies, AzTech Technologies LLC, Integra Technologies LLC, and WireClass Technologies LLC.
In their complaint, the plaintiffs state that their H-1B applications were denied due to the plaintiffs’ previous employment with these IT staffing agencies despite many of the plaintiffs’ later employment by legitimate companies and are asking the court to “…order that the agency allow them to respond to any fraud allegations before making a determination on their admissibility to the US.” The complaint alleges that DHS’s decision “…violated the Administrative Procedure Act by exceeding its authority and deeming the plaintiffs as inadmissible without a full record of the evidence, according to the lawsuit. The agency’s actions were also procedurally deficient because it didn’t notify the visa applicants of the action against them.” The plaintiffs argue that DHS is required by law to also determine that the plaintiffs knew they had made false communications in their previous visa applications and that these false communications were material to DHS’s denials of the plaintiffs’ subsequent visa applications.
DHS Reopens USCIS Field Office in Havana, Cuba
On August 17, 2023, the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS), announced the reopening of a field office in Havana, Cuba. USCIS previously closed the Havana Field Office on December 10, 2018, due to a reallocation of agency resources and the long-term suspension of operations in 2017 after the U.S. Department of State ordered all non-essential personnel and families to depart Cuba.
The new Havana office will assist with U.S. immigration benefits and services, including conducting interviews and processing cases for pending Cuban Family Reunification Parole (CFRP) cases and Form I-730, Refugee/Asylee Relative Petitions. Other limited services will be provided as the office establishes operations, which may include refugee processing and other limited appointment-only services such as collecting biometrics for U visa applications. Services at the Havana Field Office will be available only by appointment. USCIS has updated the USCIS International Immigration Offices page with more information about the office.
DHS Modernizes Cuban and Haitian Family Reunification Parole Processes
On August 10, 2023, the Department of Homeland Security (DHS) published two Federal Register notices that will update and modernize the Cuban and Haitian family reunification parole (FRP) processes. Petitioners will now be able to complete most of the FRP process on a secure online platform, eliminating the burden of travel, time, and paperwork and increasing access to participation. Despite these changes, the process is still only available by invitation.
As of August 11, 2023, most steps of the updated processes will be completed online, apart from the panel physician exam overseas and the in-person parole determination at arrival by air at a U.S. Port of Entry. Eligible beneficiaries must be outside the United States, but are no longer required to be physically present in Cuba or Haiti.
The process for both Cuba and Haiti require the National Visa Center to issue an invitation to the U.S. citizen or lawful permanent resident petitioner who has filed a I-130 Immigrant Visa Petition for a Coban or Haitian family member that has been approved. Upon receiving this invitation from the NVC, the I-130 petitioner can file Form I-134A, Online Request to be a Supporter and Declaration of Financial Support, on behalf of the Cuban or Haitian beneficiary and any derivative spouse and children.
USCIS will send a letter to CFRP petitioners who have a pending Form I-131, Application for Travel Document, filed for a principal beneficiary who is waiting for an interview in Havana. Additionally, DHS is opening the process to all Haitian approved principal beneficiaries, regardless of when USCIS approved the Form I-130.
The Federal Register notices for Cuba and Haiti provide more detailed information on the application process and criteria.
DHS Issues Guidance for Stateless Noncitizens in the United States
On August 1, 2023, the Department of Homeland Security (DHS) issued new guidance to assist stateless noncitizens in the United States who wish to obtain immigration benefits or have submitted other requests to USCIS. Stateless individuals are individuals “who are not legally considered a citizen of any country, and therefore may be denied legal identity, and struggle to access education, healthcare, marriage, and job opportunities. Individuals can be born stateless or become stateless because of discrimination, war and conflict, or changing borders and laws.” DHS’s new guidance clarifies when and how USCIS may consider a noncitizen stateless for the purpose of adjudicating immigration benefits or other requests.
Pursuant to this guidance, USCIS will create and implement new procedures to assist USCIS officers when assessing an applicant or beneficiary’s potential statelessness. Updates will include changes to existing training documents on statelessness, the development of new training procedures for officers, and standard operating procedures for officers when making requests for an internal assessment of potential statelessness where it may be relevant. USCIS personnel with specialized training will provide adjudicating officers with an advisory report clarifying how the officer might consider an individual's statelessness in making decisions about an individual's application or benefit request. This new guidance also provides examples of documentation or evidence that may guide or aid USCIS officers when determining whether noncitizens may be considered stateless for immigration application purposes.
Department of Labor Updates to Frequently Asked Questions for Employers Ending COVID-19 Policies on Notices of Worksite Changes for H-1B and E-3 Workers
As of August 24, the Office of Foreign Labor Certification of the U.S. Department of Labor (DOL) has ended a 30-day grace period, instituted during the COVID-19 National Emergency, for employers to comply with Labor Condition Application (LCA) amendments and mandatory postings required by worksite changes for H-1B or E-3 workers. Such amendments and postings must be in place at the time of the worksite change, even for employees who will work from home. Employers and foreign national workers who hold H-1B or E-3 nonimmigrant classification must comply with the posting requirements to ensure that LCAs are amended, and mandatory postings are in place, before a foreign worker starts work at a location that was not identified in the employer's approved LCA.
The COVID-19 FAQs and published updates to its Frequently Asked Questions (FAQs) for the H-1B, H-1B1, and E-3 Programs regarding Labor Condition Application (LCA/ ETA Form 9035/9035 may be viewed here: Round 4 of the FAQs for the H-1B, H-1B1, and E-3 Programs
All Department of Labor updates can be viewed on the announcement page here.
Reminder: U.S. Citizenship and Immigration Services has Published Revised Form I-9
USCIS published a revised version of Form I-9, Employment Eligibility Verification on August 1, 2023. Among the improvements to the form is a checkbox E-Verify employers can use to indicate remote examination of identity and employment authorization documents. Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities were required to complete an in-person examination by August 30, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023.