DHS issues Notice of Final Rule on DACA
On August 30, 2022, the U.S. Department of Homeland Security (DHS) issued a notice of final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.
The rule continues the DACA policy as announced in the 2012 Napolitano Memorandum and is based on established USCIS practice. The rule embraces the consistent judgment that has been maintained by the Department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal.
A product of careful review and in response to the more than 16,000 comments received during the public comment period, the final review codifies existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:
Maintains the existing threshold criteria for DACA;
Retains the existing process for DACA requestors to seek work authorization; and
Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.
The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021 injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.
ICE Developing New Secure Docket Card for Migrants Arriving at the U.S. Border
Immigration and Customs Enforcement (ICE) is currently developing a Secure Docket Card (SDC) for issuance to migrants at the U.S. border and in detention centers. An ICE spokesperson stated that, “The ICE Secure Docket Card (SDC) program is part of a pilot program to modernize various forms of documentation provided to provisionally released noncitizens through a consistent, verifiable, secure card. The secure card will contain a photo, biographic identifiers, and cutting-edge security features to the mutual benefit of the government and noncitizens." The SDC card may eventually be accepted for travel by the Transportation Services Agency (TSA). ICE is expected to launch the pilot program by the end of 2022. The SDC will allow foreign nationals to both better communicate changes in their information to U.S. immigration agencies as well as stay informed of developments in their pending cases. More importantly, the SDC is expected to reduce the number of foreign nationals in detention centers.
USCIS Rescinds Designation of the Decision in Matter of Z-R-Z-C- as an Adopted Decision
On July 1, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it was rescinding its designation in Matter of Z-R-Z-C- as an adopted decision and updated its interpretation of authorized travel by foreign nationals in Temporary Protected Status (TPS). This memo replaces prior USCIS guidance regarding the treatment of a TPS beneficiary’s return after authorized travel abroad.
The updated guidance states:
“USCIS will no longer use the advance parole mechanism to authorize travel for TPS beneficiaries but will instead provide a new TPS travel authorization document. This document will serve as evidence of the prior consent for travel contemplated in INA 244(f)(3) and serve as evidence that the bearer may be inspected and admitted into TPS pursuant to MTINA if all other requirements are met.”
“TPS beneficiaries whom DHS has inspected and admitted into TPS under MTINA, subsequent to that inspection and admission, will have been “inspected and admitted” and are “present in the United States pursuant to a lawful admission,” including for purposes of adjustment of status under INA 245. This is true even if the TPS beneficiary was present without admission or parole when initially granted TPS.”
August 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.
For August 2022, U.S. Citizenship and Immigration Services (USCIS) has indicated that for Employment-Based immigration, the “Final Action Dates” chart should be used in establishing eligibility to file the I-485 Adjustment of Status petitions. This means that those who filed an Immigrant Petition [Form I-140] on or before the date given in the Visa Bulletin may file an application for permanent resident status [Form I-485].
In August, the EB-1 preference category on the Final Action Chart for all countries including China and India remains “current.” This means the I-485 applications may be filed immediately with the Form I-140. Also, any otherwise qualified national of China or India with an approved EB-1, I-140 may file the I-485 in July.
The EB-2 preference category remains “current” for all countries other than China and India, which means that individuals in these categories may immediately file I-485 applications. China and India remain backlogged on both the Final Action and Dates for Filing Charts.
The EB-3 preference category is also “current” for all countries other than China and India. In July, the final action dates for EB-3 preference categories for Chinese and Indian nationals were March 22, 2018, and January 15, 2012, respectively. They have progressed slightly for August and are respectively April 22, 2018 and February 15, 2012.
The EB-5 preference category was recently reformed under the EB-5 Reform and Integrity Act and the visa bulletin includes three new categories for EB-5 processing. All EB-5 preference categories are “current” except for EB-5 Unreserved (I5 and R5) for China.
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).
Social Security Administration (SSA) Resumes E-Verify Operations
Social Security Administration (SSA) announced on July 15, 2022, that it will be resuming E-Verify operations, and employee E-Verify cases referred to SSA on or after July 15, 2022 will have the normal 8 federal working days to contact the local SSA office to begin resolving the mismatch. E-Verify cases referred on or after July 15, 2022 will no longer provide extended timeframes for employees to visit SSA to resolve these mismatches. E-Verify cases referred between March 2, 2020, to July 14, 2022, with a SSA mismatch will still have an extended timeframe to be resolved.
SSA reminds employers that “Cases must be referred in E-Verify within 10 federal government working days after the issuance of the mismatch. Employees with any mismatch referred on or after July 15, 2022, must take action to resolve it within 8 federal working days after the case is referred. Employees with an SSA mismatch referred between March 2, 2020, to July 14, 2022, have until September 29, 2023, to resolve it.”
Considerations when Terminating a Foreign Worker
The American Immigration Lawyers Association published a factsheet on employer considerations when terminating a foreign worker in H-1B, H-1B1, E-1/E-2, E-3, TN, L-1, and O-1 status. The factsheet outlines how employees must be notified of their termination and whether they can take advantage of any grace periods. Information on employer-sponsored I-140 petitions and dual representation between the employer and the employees is also included.
You can download the flyer here.
U.S. Citizenship and Immigration Services Updates Policy Manual for O-1 Petitions with Guidance on STEM Fields
U.S. Citizenship and Immigration Services (USCIS) stated on July 22, 2022, that it was updating its Policy Manual to provide further guidance on the type of evidence that can be used to support a petition for an O-1A nonimmigrant petition for individuals with extraordinary ability in science, technology, engineering, and STEM fields. USCIS communicated that being named on a competitive government grant for STEM research would be viewed favorably toward demonstrating that a beneficiary is at the top of their field. The USCIS Policy Manual now includes this evidence with all the listed examples of evidence that may be submitted to show that an applicant has extraordinary ability.
Please contact Iandoli, Desai & Cronin PC at info@iandoli.com if you have questions about preparing an O-1A nonimmigrant petition.
USCIS Expands Eligibility for Premium Processing Upgrades of EB-1C Multinational Executive/Manager and EB-2 National Interest Waiver Petitions
U.S. Citizenship and Immigration Services (USCIS) announced on July 15, 2022, that it is expanding the availability of premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. This is a part of USCIS’ multi-phase approach to increase efficiency by expanding premium processing. Beginning Aug. 1, 2022, USCIS will accept Form I-907 requests for:
E13 multinational executive and manager petitions received on or before July 1, 2021; and
E21 National Interest Waiver (NIW) petitions received on or before August 1, 2021.
USCIS has 45 days to adjudicate petitions that request premium processing for these newly included Form I-140 classifications. However, new I-140 petitions cannot request premium processed at this time.
Please contact your attorney at Iandoli, Desai & Cronin PC if you have questions about a pending application that is now eligible for premium processing. New inquiries about the expansion of premium processing can be sent to info@iandoli.com.
Department of Homeland Security Extends the Designation of Venezuela for Temporary Protected Status (TPS)
On July 11, 2022, Secretary of Homeland Security Alejandro N. Mayorkas announced that he is extending the designation of Venezuela for Temporary Protected Status (TPS) for 18 months. The 18-month extension of TPS for Venezuela will be effective from September 10, 2022, through March 10, 2024. Secretary Mayorkas clarified that only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension. Venezuelans who arrived in the United States after March 8, 2021, are not eligible for TPS. A Federal Register notice will provide instructions for extending TPS and renewing Employment Authorization Document (EAD).