Federal Court Rejects USCIS Claim That Decision to Revoke a Previously Approved Employment-Based Immigrant Visa Petition Is Not Reviewable in Zamana v. Renaud
In Zamana v. Renaud, the plaintiff challenged the revocation of an approved Form I-140 employment-based immigrant visa petition in the U.S. District Court for the Southern District of Ohio. USCIS initially approved the petition, and then a month later issued a Notice of Intent to Revoke and ultimately revoked the approval. USCIS claimed that the petition was improperly approved in the first instance and the revocation was based upon the alleged erroneous decision.
Plaintiff brought a lawsuit under the Administrative Procedure Act alleging that the agency's decision to revoke Zamana's petition was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C §§ 701-706.53. USCIS filed a motion to dismiss arguing that, because the agency's decision to revoke its approval of Zamana's petition was discretionary, under 8 U.S.C. § 1155, this Court has no jurisdiction to review it. 8 U.S.C. § 1252(a)(2)(B)(ii).
The court observed that a contrary finding would permit USCIS to evade judicial review of non-discretionary decisions by first approving the petition, then revoking the approval a few weeks later. Citing Jomaa v. United States, 940 F.3d 291 (6th Cir. 2019), the court held that non-discretionary decisions “are within our purview even where they underlie determinations that are ultimately discretionary.”
Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) Extend Form I-9 Requirement Flexibility
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. This temporary guidance was set to expire April 30, 2022. Because of ongoing precautions related to COVID-19, DHS has extended the Form I-9 flexibilities until Oct. 31, 2022.
On March 20, 2020, DHS announced that it would exercise prosecutorial discretion to defer the physical presence requirements of the Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA). This policy only applied to employers and workplaces that were operating remotely. If there were employees physically present at a work location, no exceptions to the in-person verification of identity and employment eligibility documentation for Form I-9 were implemented at that time.
See the original ICE news release from March 20, 2020, for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. Please also consult ICE’s guidance for clarification on this provision.
Employers should monitor the DHS and ICE websites for additional updates regarding the status of Form I-9 completion flexibilities.
Department of Security Outlines Plans to Secure the Southern U.S. Border when Title 42 is Lifted
Secretary of Homeland Security Alejandro Mayorkas announced updated plans on how U.S. immigration authorities are preparing to deal with a potential increase in migrant arrivals once Title 42 is lifted. In March 2020, the Centers for Disease Control and Prevention (CDC) invoked section Title 42 of the U.S. Code to require the immediate expulsion of noncitizen single adults and families to protect Americans from the spread of COVID-19. On April 1, 2022, CDC announced that it was lifting the Order on May 23, 2022.
The Department of Homeland Security (DHS) anticipates migration levels will increase as in other countries, which is consistent with global trends. There are currently more people in the world displaced from their homes than at any time since World War II, including in the Western Hemisphere.
DHS has detailed its plans to prepare for and manage increased encounters of noncitizens at the Southwest Border. Many elements of the plan are currently being implemented as the U.S. manages a historic number of encounters, including a record number of noncitizens trying to enter the United States multiple times. The six pillars of the new U.S. border security plan are outlined in a memorandum released by Secretary Mayorkas on April 26, 2022.
DHS Extends COVID-19 Vaccination Requirements for Foreign Nationals Entering the U.S. via Land Ports of Entry and Ferry Terminals
The Department of Homeland Security (DHS) will continue to require foreign nationals entering the United States via land ports and ferry terminals at the Canadian and Mexican borders to be fully vaccinated against COVID-19 and to provide related proof of vaccination upon request. These requirements will apply to non-U.S. travelers who are traveling both for essential and non-essential reasons, and do not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals.
Non-U.S. travelers entering the United States via land ports of entry and ferry terminals, whether for essential or non-essential reasons, must continue to:
Verbally attest to their COVID-19 vaccination status;
Provide, upon request, proof of a CDC-approved COVID-19 vaccination;
Present a valid passport, Trusted Traveler Program card, or Enhanced Tribal Card; and
Be prepared to present any other relevant documents requested by a U.S. Customs and Border Protection (CBP) officer during a border inspection.
COVID-19 testing is not required to enter the United States via a land port of entry or ferry terminal.
President Biden Announces Uniting for Ukraine and How Americans Can Sponsor Ukrainian Refugees
On April 21, 2022, President Biden announced Uniting for Ukraine, a new streamlined process to provide Ukrainian citizens who have fled Russia’s unprovoked war of aggression opportunities to come to the United States. Uniting for Ukraine provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily, with a period of parole up to two years.
Ukrainians participating in Uniting for Ukraine must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States. The process begins when the supporter files Form I-134, Declaration of Financial Support, with U.S. Citizenship and Immigration Services (USCIS) to include information both on the supporter and the Ukrainian beneficiary. Ukrainians who meet the requirements receive authorization to travel directly to the United States and seek parole at a port of entry.
Additional information on who is eligible to participate and how to become a U.S. sponsor is on the Department of Homeland Security’s Uniting for Ukraine website.
U.S. Citizenship and Immigration Services Announces Online Filing for DACA Renewal Forms
U.S. Citizenship and Immigration Services (USCIS) announced that individuals who previously received deferred action under Deferred Action for Childhood Arrivals (DACA) may now file DACA renewal forms online. At this time, the option to file online is only available for individuals who have previously been granted DACA. DACA applicants must first create a USCIS online account, which provides a convenient and secure method to submit forms, pay fees and track the status of any pending USCIS immigration request.
U.S. Citizenship and Immigration Services (USCIS) Implements Risk-Based Approach for Conditional Permanent Resident Interviews
U.S. Citizenship and Immigration Services (USCIS) announced a new policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status. USCIS Director Ur M. Jaddou stated, “Implementing a risk-based strategic approach to the CPR-interview process will increase efficiencies that improve processing times, allow for a better use of agency staffing resources, and help reduce the pending caseload while still maintaining procedures to identify fraud and protect national security.”
Previously, UCIS interviews were mandatory for Form I-751, Petition to Remove Conditions on Residence. USCIS agency officers now have the discretion to waive the interview requirement if there is sufficient evidence about the bona fides of the marriage, the joint-filing requirement is eligible for a waiver (if applicable), there is no indication of fraud or misrepresentation in supporting documents, there are no complex facts or issues to resolve, and there is no criminal history that would render the CPR removable.
Social Security Administration Reopens for Walk-In Services
The Social Security Administration (SSA) has resumed in-person services, including for people without an appointment. To minimize waiting time, the SSA recommends that individuals use the SSA’s online services or call to schedule an appointment in advance rather than walking in without an appointment.
The SSA is continuing to require face masks (regardless of local guidance), physical distancing, and self-health checks for COVID-19 symptoms.
U.S. Citizenship and Immigration Services (USCIS) Stops Issuing Combo Cards for Employment Authorization/Travel to Address Backlog of Form I-765 Applications
Green card applicants with pending Form I-485 applications have become used to receiving a “combo” card for employment authorization (EAD) and travel (Advance Parole) while they wait for their I-485 application to be adjudicated. This policy has been in place since 2011. USCIS recently announced that it has stopped issuing combo cards due to the severe EAD application backlog. Instead, foreign nationals can expect to receive an EAD card that reads “Not Valid for Reentry to the U.S.” This EAD card cannot be used for international travel. The Advance Parole (AP) document permitting international travel will be sent to applicants separately. Since international travel advice can be specific to an individual applicant, we recommend that you contact your immigration attorney about any travel plans.
FY 2023 H-1B Cap Update: Fifty-Seven Percent Increase in Registrations
U.S. Citizenship and Immigration Services (USCIS) announced on April 25, 2022, that it received 482,927 H-1B cap registrations for FY 2023, which is a 57% increase from the number of registrations received in FY 2022. More than 48,000 prospective employers registered workers in the lottery. Approximately one-third of all eligible registrations requested consideration under the advanced degree exemption. USCIS considers historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of petitions needed to meet the H-1B cap for the fiscal year.
USCIS received 308,613 H-1B registrations in FY 2022 and initially selected 87,500 registrations projected as needed to reach the FY 2022 numerical allocations. They conducted a second selection in July 2021 and a third selection in November 2021. This resulted in a total of 131,970 selected registrations for FY 2022.
For FY 2023, USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations projected as needed to reach the FY 2023 numerical allocations. Those with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file. It is not known whether there will be any additional registration selections this year at this time.