State Department Decides Not to Implement 2019 Public Charge Restrictions

On September 5, 2023, the US Department of State (DOS) published a final rule indicating that they decided not to finalize the regulatory amendments made by the more restrictive 2019 interim final rule entitled “Visas: Ineligibility Based on Public Charge Grounds” published in the Federal Register on October 11, 2019 (“2019 IFR”) as it did not meet current policy aims.  In declining to finalize the regulatory amendments made in 2019, the DOS will continue to apply the guidance from the Foreign Affairs Manual (“FAM”) and the regulatory language in use prior to 2019. The final rule took effect on October 5, 2023.

Link:

• US State Department Final Rule: https://www.federalregister.gov/documents/2023/09/05/2023-19047/visas-ineligibility-based-on-public-charge

Expiration of COVID-Era Visa Application Fee Receipts

The US Department of State (DOS) announced that all receipts for payment of Machine-Readable Visa (MRV) fees issued before October 1, 2022, would expire September 30, 2023, and that there would be no extensions of the validity of the fees.

Applicants using MRV fees paid before October 1, 2022 to book an appointment at a consulate were also cautioned not to try to change their appointment dates after October 1, 2023 because doing so will result in the forfeiture of both the original appointment slot and the MRV fee receipt. This means that the applicant would be required to pay a new fee and submit a new application package.

Links:

• US Department of State Announcement: https://travel.state.gov/content/travel/en/News/visas-news/expiration-of-covid-era-visa-application-fee-receipts.html

USCIS Announced an Increase in the Maximum Validity Period of Employment Authorization Documents for Certain Categories of Noncitizens from 2 to 5 Years

On September 27, 2023, USCIS announced that it will increase the maximum employment authorization document (EAD) validity period for “certain noncitizens who are employment authorized incident to status or circumstance” to five years. This five-year EAD validity period also applies to some “initial and renewal EADs for certain noncitizens who must apply for employment authorization”. Refugees, asylees, individuals granted withholding of removal, and those with pending asylum application or applications for adjustment of status (“green card”) under INA 245, are among the categories of noncitizens who will be issued EADs with a five-year validity period, according to the USCIS Policy Alert. USCIS stated that this change is aimed at reducing the number of employment authorization applications they receive in the coming years, which will hopefully help them reduce their processing times and backlogs.

Link:

USCIS Announcement: https://www.uscis.gov/newsroom/alerts/uscis-increases-employment-authorization-document-validity-period-for-certain-categories

USCIS Exempts all Form I-539 Applicants from Payment of Biometrics Services Fee

As of October 1, 2023, U.S. Citizenship and Immigration Services (USCIS) began exempting the $85 biometric services fee as part of the application process for Form I-539. If an I-539 application is postmarked October 1st or later, the applicant does not need to pay the fee. In most cases, after October 1st, applicants will not be scheduled for biometric services appointments. However, USCIS reserves the right to request that any individual applicant appear for such an appointment and will send the applicant a notice if this is required.

If an applicant mistakenly submits the biometric services fee and the payment has been submitted separately from the Form I-539 filing fee, USCIS has stated that they will return the biometric services fee and accept the Form I-539. However, if the applicant mistakenly submits the biometric services fee and the payment for the Form I-539 has been combined with it, then this will be considered an improper filing and the Form I-539 form will be rejected. If an applicant mistakenly authorizes a credit card payment combining the biometric services fee and the filing fee, USCIS will accept the application and will only charge the credit card for the filing fee.

Link:

• USCIS Web Alert: https://www.uscis.gov/newsroom/alerts/uscis-exempts-biometric-services-fee-for-all-form-i-539-applicants

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.