Department of State Issues Final Rule on Effect of Certain Pardons on Criminal-Related Grounds of Ineligibility

The Department of State (DOS) has amended a regulation relating to the effect of certain pardons on criminal-related grounds of visa ineligibility. The amended rule went into effect on August 22, 2024, and changes the existing regulation “to implement the plain meaning of statutory authorities and the President’s constitutional authority regarding the effect of pardons on inadmissibility under INA sections 212(a)(2)(A)(i) and 212(a)(2)(B).” The rule “conveys [DOS’s] interpretation of Congress having expressly not provided an exception to inadmissibility based on a pardon, reflecting a plain reading of the inadmissibility ground in INA section 212(a)(2)(A)(i) that multiple courts have shared.” DOS found that the rule is “interpretative” and amends visa policy as a “foreign affairs function of the United States” and is therefore not subject to notice-and-comment requirements.

Department of State Releases FY 2025 Diversity Visa Results

In the September Visa Bulletin, the US State Department included results from the diversity visa (DV) lottery for fiscal year (FY) 2025 (October 1, 2024, to September 30, 2025). The Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the approximately 131,060 selectees who are eligible to participate. The bulletin notes that those selected “will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete all required steps.” Many more were selected than can receive visas (55,000) to account for factors such as some selectees not completing their cases or being found ineligible for a visa.

Parole Process for certain nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) Paused and then Resumed with more Rigorous Vetting Procedures for Supporting Sponsor

The Department of Homeland Security (DHS) temporarily paused the issuance of advance travel authorizations (ATAs) for new Cuban, Haitian, Nicaraguan, and Venezuelan beneficiaries while it reviewed the supporter application process. The review has since been completed and DHS has resumed processing of ATAs. As part of an internal review, DHS has implemented updated safeguards to the CHNV processes, incorporating rigorous enhanced vetting in the supporter application process. Potential CHNV beneficiaries should continue to monitor their myUSCIS account for updated information regarding their ATAs. Individuals with a valid, unexpired ATA are permitted to travel.

Keeping Families Together Program Has Begun as of August 19, 2024, and a Lawsuit Has Been Filed Against the Program as of August 23, 2024

On August 19, 2024 the Department of Homeland Security (DHS) published a Federal Register notice to implement Keeping Families Together Parole-in-Place program, a process for certain noncitizen spouses and stepchildren of U.S. citizens to obtain “parole,” a temporary three year status that would provide the recipient with the ability to remain in the U.S., apply for work authorization, as well as creating a pathway to obtain a green card from within the U.S. USCIS has begun accepting applications for this program. However, on August 23, 2024, Texas and other states filed a lawsuit challenging the program in the U.S. District Court for the Eastern District of Texas (Texas v. Department of Homeland Security, Case No. 24-cv-306). On August 26, 2024, the court issued an administrative stay that orders USCIS to halt approvals for 14 days but allows USCIS to continue to receive applications and conduct biometrics appointments.

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Visa Bulletin - August 2024

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 August, the EB-1 preference category on the Final Action Chart remains current for all countries other than China and India. The EB-1 priority dates for China and India for August are November 1, 2022 and February 1, 2022 respectively.  

U.S. Citizenship and Immigration Services (USCIS) determined that Chart A (Final Action Dates Employment-Based Visa Applications) could be used in August. Both the EB-2 and EB-3 preference categories remain backlogged for all countries, which means that individuals in these categories may not file Form I-485 applications until their priority dates become “current.”

The August Visa Bulletin noted that demand and number use has remained high in the EB-3 visa category.  Although retrogression has not been necessary for August, it will likely be necessary to either retrogress the final action date or make the category “Unavailable” in September. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

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).

USCIS Publishes FAQs for Individuals in H-1B Nonimmigrant Status

On July 17, 2024, USCIS published information intended to address common questions by individuals in H-1B nonimmigrant status, particularly related to applying for lawful permanent resident (LPR) status, job changes or terminations, international travel, and dependent family members.  The information in this FAQ includes:

• An eligible H-1B worker can change employers as soon as the new employer’s nonfrivolous H-1B petition is properly filed with USCIS.

• USCIS will not revoke a Form I-140 petition approval solely due to the termination of the petitioner’s business or the employer’s withdrawal, as long as the petition has been approved for at least 180 days or the associated adjustment of status application has been pending for at least 180 days, and the petition approval is not revoked on other grounds. In this scenario, the H-1B worker will retain their priority date.

• When an H-1B worker’s employment is terminated (either voluntarily or involuntarily), they typically may take one of several actions, such as changing to another nonimmigrant status, to remain in a period of authorized stay in the United States beyond 60 days.

The chart provided by USCIS here summarizes some common scenarios for H-1B workers. The information in this chart is general and does not capture all relevant details or considerations. Nonimmigrant should consult an immigration attorney for case-specific issues.

Update to Form I-9, Employer Eligibility Verification

On August 1 2024, a new edition of Form I-9 was made available to employers. According to this update, Employers should use the 08/01/23 edition of Form I-9. This edition will have an expiration date of either 07/31/2026 or 05/31/2027.

Starting August 1, 2026, employers should use the Form I-9 version with the 05/31/2027 expiration date.

White House Memorandum on the Deferred Enforced Departure for Certain Lebanese Nationals

On July 26, 2022, the Biden Administration released a Memorandum on the Deferred Enforced Departure for Certain Lebanese Nationals based on deteriorating humanitarian conditions in the region. This memo directs the Department of Homeland Security to take measures to defer the removal of any Lebanese national present in the U.S. as of the memo’s release, except for:

(1)  those who have voluntarily returned to Lebanon after the date of this memorandum;

(2)  those who have not continuously resided in the United States since the date of this memorandum;

(3)  those who are inadmissible under section 212(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or deportable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));

(4)  those who have been convicted of any felony or two or more misdemeanors committed in the United States, or who meet any of the criteria set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));

(5)  those who are subject to extradition;

(6)  those whose presence in the United States the Secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety; or

(7) those whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.

This memo further directs DHS to take appropriate measures to authorize employment for noncitizens whose removal has been deferred, as provided by this memorandum, for the duration of such deferral, and to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Lebanese nationals as the Secretary of Homeland Security determines to be appropriate.  

New Reports on Visa Denials for African Applicants Highlight Disparities

On July 8, 2024, a report from Shorelight and the President’s Alliance on Higher Education was released providing data on trends in U.S. student visa applications and denials from 2015 to 2022.  According to the data in this report, with the exception of four countries in southern Africa, visa denial rates for African applicants have been increasing since 2015, when Africa had a visa denial rate of 44 percent compared to denial rates of 30, 8, and 7 percent for Asia, Europe, and South America, respectively.  These disproportionate results are echoed in a July 28th  report from international news outlet Semafor, although they property submit the lowest number of applications, African students are rejected at a rate of 30 percent in Europes Schengen area as well.