Erroneous Terminations of F and J Students in SEVIS Reported
AILA (American Immigration Lawyers Association) members have reported that some J-1 Exchange Visitors and F-1 Students saw their SEVIS records erroneously terminated due to a change of status to H-1B when there was a consular processing decision instead. Those affected should contact their school DSO/ARO to have this error corrected.
D.C. Circuit Holds that Optional Practical Training (OPT) for F-1 Students is Valid
After eight years of litigation, the U.S. Court of Appeals for the D.C. Circuit held on October 4, 2022, that Optional Practical Training (OPT) – employment authorization for college graduates – is valid and that allowing international students to work in positions connected to their studies was within the Department of Homeland Security’s authority (Washington Alliance of Technology Workers v. United States Department of Homeland Security, et al). The Washington Alliance of Technology Workers commenced litigation against the Department of Homeland Security when OPT was expanded from one to up to three years for STEM degree holders, arguing that DHS did not have the authority to do so. The D.C. Circuit disagreed and pointed out that practical training for international students dates back over 70 years, and Congress has repeatedly acquiesced over the years. In a 2 to 1 decision, Judge Pillard writes:
“History corroborates that Congress meant what it plainly said in the INA when it granted DHS authority in section 1184(a)(1) to set the conditions of F-1 students’ admission…And across decades of the Executive doing so openly, we have explained, Congress has chosen to maintain the relevant provisions of the F-1 student category when it enacted the INA in 1952 and made many ensuing amendments—all of which preserved both the F-1 category and the section 1184(a)(1) authority under which the Executive had long granted work authorizations.”
November 2022 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.
The November Visa Bulletin has been released. There has been no movement in either the Employment-Based or Family-Based Preference Filings from last month. For both categories, you may use the Dates for Filing chart in the Department of State Visa Bulletin for November 2022.The November Visa Bulletin also notes the following:
“Increased demand in the Employment Second category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
IDC Welcomes Casey Troost to Our Firm
We are excited to announce that Casey Troost has joined our firm as a paralegal. Casey graduated from Oberlin College and previously worked for the Capital Area Immigrants’ Rights Coalition in Washington, D.C. Casey is also fluent in French.
We're Hiring!
Iandoli, Desai, & Cronin has an immediate opening for a Business Immigration Paralegal. We are dynamic eight attorney and twelve paralegal immigration law firm serving professionals, businesses, and academic institutions. Our clients are leaders in medicine, engineering, biotechnology, and academia. The duties and responsibilities include:
Assist attorneys in the preparation and filing of employment-based immigrant (EB-1, EB-2, and EB-3) and nonimmigrant (H-1B, O-1, E-2, E-3, L-1 and TN) petitions and supporting documentation
Assemble petitions and application packages
Communicate with individual clients, HR representatives and government agencies
Help individuals gather necessary information/documents
Use specialized Case Management software to monitor deadlines and expirations and draft petitions and applications
Draft support letters and other documents
Track client communications and government correspondence
Additional administrative duties may include answering phones, scheduling appointments, generating invoices, filing, and other ad hoc tasks.
Must have a bachelor’s degree and excellent writing, computer, interpersonal, organizational, and time management skills. Must be able to meet rigid deadlines and prioritize tasks.
NO JDs, LLBs, LLMs, or current/matriculating law students.
Please email résumé and cover letter to careers@iandoli.com
No phone calls please. Only those candidates selected for an interview will be contacted.
Attorneys Desai and Walsh Present at the NAFSA Region XI Conference
Attorneys Prasant Desai and Mary Walsh presented at the NAFSA Region XI Conference in Manchester, New Hampshire in October. Attorney Walsh chaired a session on Immigration Considerations for Influencers, YouTubers, and TikTok Stars with Andrea Popa, Director of the Office of International Student Affairs at Emerson College. Attorney Desai chaired a session on Employment-Based Visa Policy and Practice in Higher Ed with Patrick Trouve, HR Immigration and Compliance Specialist at University of Massachusetts-Lowell.
Attorney Erin Murphy Receives First International Entrepreneur Parole (IEP) Approval at IDC
Attorney Erin Murphy recently received an approval of our first International Entrepreneur Parole (IEP) application for a client who founded a U.S.-based start-up company. From the date of submission to USCIS, the process took approximately 13 months. The International Entrepreneur Parole program was first introduced by the Obama administration and was put on hold through the Trump administration. Only one IEP application received an approval during the Obama administration.
On May 10, 2021, the Biden administration revived the rule and began accepting applications again. Entrepreneurs applying for parole under this rule must demonstrate that they:
Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
Qualified investors are defined as U.S. citizen or lawful permanent resident (or organizations owned or controlled primarily by U.S. citizens or lawful permanent residents) that have made investments to start-up entities over the past 5 years totaling at least $633,952; and
Following the investment, at least 2 of these start up entities each created at least 5 qualified jobs or generated at least $528,293 in revenue with average annualized revenue growth of at least 20 percent.
The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
Otherwise merit a favorable exercise of discretion.
A grant of International Entrepreneur Parole allows the parolee to travel to the U.S. to work for their start-up company for an initial period of up to 30 months. The parole can be extended for an additional 30 months if the applicant can show continued growth and success of the start-up. More information can be found on USCIS’s web page for the program, and the Federal Register’s notice can be found here.
Public Charge Final Rule Published and will be Effective December 23, 2022
The U.S. Department of Homeland Security (DHS) amended its regulations to prescribe how it determines whether noncitizens are inadmissible to the U.S. because they are likely at any time to become a public charge.
Noncitizens who are applicants for visas, admission, and adjustment of status are required to establish that they are not likely to become a public charge unless Congress has expressly exempted them from this ground of inadmissibility or has otherwise permitted them to seek a waiver of inadmissibility.
Under this rule, DHS will determine that a noncitizen is likely at any time to become a public charge if the noncitizen is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
On August 14, 2019, DHS issued a different rule on this topic, Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule), which is no longer in effect. This rule implements a different policy than the 2019 Final Rule. This final rule is effective December 23, 2022. This final rule will apply to applications postmarked on or after the effective date.
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Diversity Visa Lottery for 2024 Opens on October 5, 2022
The Department of State (DOS) released instructions on how to apply for the 2024 Diversity Immigrant Visa Program -
The DOS annually administers the statutorily-mandated Diversity Immigrant Visa Program. The Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants” from countries with historically low rates of immigration to the United States. For Fiscal Year 2024, up to 55,000 Diversity Visas (DVs) will be available. There is no cost to register for the DV program and it is safe for non-immigrant only visa holders to apply (i.e., F, J, etc.).
Applicants who are selected in the program (selectees) must meet simple but strict eligibility requirements to qualify for a diversity visa. The DOS determines selectees through a randomized computer drawing. The DOS distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.
For DV-2024, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Venezuela and Vietnam. Persons born in Macau SAR and Taiwan are eligible.
Applicants must submit entries for the DV-2024 program electronically at dvlottery.state.gov between noon, Eastern Daylight Time (EDT) (GMT-4), Wednesday, October 5, 2022 and noon, Eastern Standard Time (EST) (GMT-5), Tuesday, November 8, 2022. Do not wait until the last week of the registration period to enter, as heavy demand may result in website delays. No late entries or paper entries will be accepted. The law allows only one entry per person during each registration period. The DOS uses sophisticated technology to detect multiple entries. Individuals with more than one entry will be disqualified. Please visit the DOS website for instructions.
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Extension of Temporary Waiver of 60-Day Rule for Civil Surgeon Signatures on Form I-693 – set to end March 31, 2023
On September 29, 2022, USCIS announced that they are extending their temporary waiver of the requirement that civil surgeons must sign Form I-693, Report of Medical Examination and Vaccination Record, no more than 60 days before an individual applies for the underlying immigration benefit (including Form I-4985, Application to Register Permanent Residence or Adjust Status).
The original waiver was originally effective until September 30, 2022, but it has now been extended until March 31, 2023 to further ease processing delays and difficulties in timely completing the medical exam. The waiver applies to all Forms I-693, regardless of when the application was submitted to USCIS or when a civil surgeon signed the form.