DHS Begins Limited Implementation of DACA under Final Rule
On Monday, October 31, 2022, the Department of Homeland Security’s final rule (PDF) to preserve and fortify Deferred Action for Childhood Arrivals (DACA) went into effect. The final rule’s implementation means that DACA is now based on a formal regulation, thereby preserving and fortifying the program while the program remains the subject of litigation in court. Up until now, DACA has been based on a policy memorandum that then-DHS Secretary Janet Napolitano issued on August 15, 2012.
Under the final rule, USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to ongoing litigation, USCIS will continue to accept requests, but will not be able to process initial DACA requests. Per the statement from Secretary of Homeland Security Alejandro N. Mayorkas, legislation from Congress will be needed to provide permanent protection to DACA recipients and applicants.
The final rule is a product of careful review that considered the more than 16,000 comments received during the public comment period. It codifies existing DACA policy, with limited changes, and replaces the guidance set forth in the 2012 Napolitano memorandum (PDF).
The final rule affirms that:
Current DACA recipients’ deferred action, employment authorization, and advance parole will continue to be recognized as valid under the final rule.
DACA is not a form of lawful status but DACA recipients are considered “lawfully present” for certain purposes.
Non-citizens who meet eligibility criteria, clear all national security and public safety vetting, and are found to merit a favorable exercise of discretion may be granted deferred action and obtain renewable two-year work authorization. Given pending litigation, however, the Department is currently barred from granting deferred action to any new DACA recipients.
On Oct. 5, the U.S. Court of Appeals for the Fifth Circuit affirmed a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful. The Fifth Circuit, however, preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DACA rule. On Oct. 14, the U.S. District Court for the Southern District of Texas issued an order extending its injunction and partial stay of the DACA final rule.
Current grants of DACA and related Employment Authorization Documents are valid, and USCIS will accept and process renewal DACA requests and accompanying requests for employment authorization under the final rule.
For more information, visit USCIS’ DACA webpage.
USCIS Announces Certain Afghan and Ukrainian Parolees Are Employment Authorized Incident to Parole
Pursuant to recent laws passed by Congress and Department of Homeland Security regulations, USCIS has announced that effective Nov. 21, 2022, Ukrainian and Afghan parolees, and their qualifying family members, with certain classes of admission are considered to have employment authorization incident to parole. This means that these individuals do not need to wait for USCIS to approve their Form I-765, Application for Employment Authorization, before they can work in the United States. This updated policy guidance applies to the following individuals, provided their parole has not been terminated:
Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR.” If you are an Afghan parolee covered under section 2502(b), P.L. No. 117-43 who did not receive an “OAR” class of admission on your Form I-94, please email U.S. Customs and Border Protection at oawi94adjustments@cbp.dhs.gov to update your class of admission, if appropriate;
Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and
Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between Feb. 24, 2022, and Sept. 30, 2023, and indicates Ukraine as the country of citizenship on the document.
For these parolees, their unexpired Form I-94 is an acceptable receipt they may present to their employer to show their identity and employment authorization for the purposes of Form I-9, Employment Eligibility Verification. The receipt satisfies the Form I-9 requirement for 90 days from the date of hire (or in the case of reverification, the date employment authorization expires). Individuals who received a Form I-94 when they entered the United States should visit U.S. Customs and Border Protection’s Form I-94 page to view and print a copy of their Form I-94. If you do not have a passport, you can use your A-Number to retrieve your Form I-94 online at the site above by choosing “Get Most Recent I-94.” Enter your A-Number in the Document Number field and enter your country of citizenship or “USA” in the Country of Citizenship field.
After the 90-day period, parolees must present an EAD or unrestricted Social Security card and acceptable List B identity document from the Form I-9 Lists of Acceptable Documents (such as a state-issued driver’s license or identification card). Ukrainian and Afghan parolees must still file a Form I-765 to receive a physical EAD. USCIS will provide additional guidance for employers about completion of Form I-9, Employment Eligibility Verification.
Effective Nov. 21, 2022, USCIS is also exempting the fee to file Form I-765 for Ukrainian parolees filing for an EAD by mail. Afghan parolees under OAW are already exempt from the fee for an initial paper-filed Form I-765 (and a replacement EAD) through Sept. 30, 2023.
Effective Dec. 5, 2022, USCIS will be able to process fee exemptions for online filings of Form I-765 for eligible Ukrainian and Afghan parolees. USCIS encourages the use of online filing for more efficient processing.
Please refer to USCIS’s Uniting for Ukraine and Information for Afghan Nationals webpages for more information about submitting Form I-765. Additionally, please refer to USCIS’s File Online webpage for more information about creating an account and filing online.
USCIS Extends and Expands Fee Exemptions and Expedited Processing for Afghan Nationals
On November 22, 2022, USCIS announced it is extending and expanding filing fee exemptions and expedited application processing for certain Afghan nationals (previously announced on November 8, 2021). This is intended to assist Afghan nationals as they resettle, and in many cases reunite with family, in the United States by enabling USCIS to process their requests for work authorization, long-term status, status for immediate relatives, and associated services more quickly. USCIS encourages interested parties to use the webpages listed below to learn more about the eligibility details for each type of filing.
Certain Afghan nationals are eligible for the following fee exemptions and expedited processing, through Sept. 30, 2023:
Fee Exemptions
An initial or replacement Form I-765, Application for Employment Authorization, for Afghan nationals who are applying for work authorization on the basis of parole (eligibility category (c)(11));
Form I-485, Application to Register Permanent Residence or Adjust Status, to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601, Application for Waiver of Grounds of Inadmissibility;
Form I-130, Petition for Alien Relative, filed with USCIS in the United States on behalf of any Afghan national (beneficiary) with a visa immediately available;
Form I-824, Application for Action on an Approved Application or Petition, for an Afghan holding a Special Immigrant Visa;
Form I-601 for any Afghan national with an approved Form I-130 with a visa immediately available; and
USCIS Immigrant Fee (Form I-551) for Afghan nationals.
Expedited Processing:
An initial and replacement Form I-765 for those applying for employment authorization on the basis of parole (eligibility category (c)(11));
Form I-485 for Afghan nationals seeking to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601;
Form I-589, Application for Asylum and for Withholding of Removal, filed by certain Afghan parolees as described in Section 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act;
Form I-130, filed with USCIS in the United States on behalf of an Afghan national (beneficiary) with a visa immediately available, and any associated Form I-601; and
Form I-140, Immigrant Petition for Alien Workers, filed with USCIS on behalf of an Afghan national (beneficiary) with a visa immediately available.
USCIS’s Information for Afghan Nationals webpage has additional information for Afghan nationals.
DHS Continues Temporary Protected Status and Related Documentation for Certain Beneficiaries of TPS
On November 10, 2022, the Department of Homeland Security (DHS) posted a Federal Register Notice announcing the continuation of Temporary Protected Status (TPS) and certain related benefits for beneficiaries under the TPS designations that remain subject to the court orders in ongoing lawsuits (Ramos et al. v. Nielsen and Bhattarai et al. v. Nielsen et al.)
TPS beneficiaries under the designations for El Salvador, Honduras, Nicaragua, and Nepal, as well as the 2011 Haiti designation and the 2013 Sudan designation will retain their TPS while the preliminary injunction in Ramos and the stay of proceedings order in Bhattarai remain in effect, provided they continue to meet all the individual requirements for TPS eligibility. The automatic extension of TPS-related documentation includes specified Employment Authorization Documents (EADs) through June 30, 2024. These current beneficiaries do not need to pay a fee or file any application to maintain their TPS and have their TPS-related documentation automatically extended.
Beneficiaries who want a new EAD with the new expiration date of June 30, 2024 displayed on the EAD must file Form I-765, Application for Employment Authorization, along with the filing fee or a fee waiver request. The Federal Register Notice explains how TPS beneficiaries, their employers and benefit-granting agencies may determine which EADs are automatically extended for the beneficiaries.
Individuals who were newly granted TPS under the 2021 TPS designation of Haiti or the 2022 TPS designation of Sudan, but who did not have TPS under the 2011 Haiti designation or the 2013 Sudan designation, are not covered by this litigation compliance notice. Their TPS grants remain valid in accordance with their individual notices of approval from USCIS. In order to receive TPS under the new Haiti or Sudan designations, eligible individuals must apply before the close of the registration periods on Feb. 3, 2023 (for Haiti), and Oct. 19, 2023 (for Sudan).
DHS has published regular notices to ensure its continued compliance withthe Ramosand Bhattarai court orders since issuance of those orders. DHS last published a Federal Register Notice to ensure its continued compliance with these combined court orders on Sept. 10, 2021. That notice again continued TPS and extended certain TPS-related documentation through Dec. 31, 2022, for all eligible TPS beneficiaries covered by the courts’ orders.
Additionally, according to USCIS’s announcement on November 17, 2022 on this subject, individuals with a pending or approved TPS application may qualify for certain public benefits and REAL ID driver's licenses and identification cards. When applying for a Federal, state, or local government benefit, individuals will need to show a document proving they applied for or are beneficiaries of TPS. They may provide a TPS-based EAD with a category code of A12 or C19, or a copy of their Form I-797, Notice of Action, for a current Form I-821, Application for Temporary Protected Status.
SAVE (the Electronic Immigration Status Verification used by many agencies) will be able to verify an individual's TPS or pending TPS application (and any employment authorization, including any EAD auto-extension) using information from the documents noted above. In some instances, the benefit-granting agency may need to institute additional verification.
For more information regarding the automatic extension of TPS-related documents for beneficiaries from the six designated countries, including which documents have been automatically extended, please refer to the Federal Register Notice dated November 16, 2022.
Additional information related to TPS is available on USCIS’s Temporary Protected Status page.
H-1B Planning Season is Upon Us
H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor’s degree (or the equivalent in education and/or experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
Now is the best time for employers to decide whether they will file H-1B petitions and for whom. It is good to both start the internal discussions and to initiate the process as the H-1B lottery registration for the new fiscal year cap, including those eligible for the advanced degree exemption, will be in March. The H-1B random lottery process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions about potential H-1B sponsorship.
Information about the impact of recent layoffs on visa status
Recent layoffs in the tech sector require foreign nationals holding H-1B visa status to look for a new position; generally, a grace period of up to 60 days grace period is permitted. During that time period, the H-1B visa holder must secure a new H-1B eligible position and sponsorship by the new employer to file an H-1B petition or file a request for change of status to another qualifying category. Contact attorneys at ID&C if you wish to obtain more information about this topic.
USCIS Recommendations for Paper Filings to Avoid Scanning Delays
On November 16, 2022, USCIS issued some guidance and recommendations regarding paper filings to improve efficiency, as the agency now scans and uploads many documents into electronic database systems. To avoid delays and improve scanning efficiency, USCIS recommends the following for paper filings:
Do not hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another.
Do not include photos or documents smaller than 4x6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when USCIS requests a passport photo with the filing.
Do not include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. USCIS will not accept these types of materials. However, USCIS will accept photographs or photocopies of these items.
Do not submit forms or evidence documents bound with a binding or spiral wire/plastic.
Do not submit evidence using photo albums, scrapbooks, binders, or greeting cards.
Do not fold documents.
Do not place sticky notes on documents.
Do not use insertable tab dividers.
Do not print forms on colored paper.
Do not submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If applicants are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended.
Do not send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:
required by the form instructions for the application, petition, or request you are filing; or
USCIS specifically issues a request for applicants to submit an original document.
These recommendations are offered to improve USCIS efficiency while processing applications, petitions, or requests.
Using SAVE’s CaseCheck Tool
In order to process an application for a benefit or license with a federal, state, or local government agency, these agencies may need to verify applicants’ immigration status to process the application. To verify an applicant’s status, agencies use the SAVE Program (the Electronic Immigration Status Verification system). CaseCheck, a free and fast service, lets applicants follow the progress of their SAVE verification case online.
Applicants may check the status of their SAVE verification at USCIS’s webpage here. Applicants will need to enter their date of birth along with their verification case number, provided by the relevant agency or the number from one of the following immigration documents:
Certificate of Citizenship
Certificate of Naturalization
I-20 Certificate of Eligibility for Nonimmigrant Student Status
I-94 Arrival/Departure Record
I-94 stamp in Unexpired Foreign Passport
I-551 Permanent Resident Card
I-765 Employment Authorization Card
More information about this tool can be found at USCIS’s SAVE CaseCheck webpage here.
U.S. Court of Appeals for the Fifth Circuit Rules that DACA Program is “Unlawful”
On October 5, 2022, the U.S. Fifth Circuit Court of Appeals voted unanimously to uphold the ruling of a U.S. Federal District Court in the Southern District of Texas (Texas v. United States) enjoining the DACA (Deferred Action Against Childhood Arrivals) Program and vacated the 2012 Department of Homeland Security (DHS) memorandum establishing the program. The Fifth Circuit agreed with the lower court’s findings that the DACA program violated the Administrative Procedure Act and was substantively and procedurally unlawful. However, the Fifth Circuit returned the case to the lower court in light of the Bidem Administration’s recently promulgated DACA regulation, which is scheduled to take effect on October 31, 2022, and agreed to maintain the current stay that temporarily preserves the DACA program. As a result of the stay that remains in place, current DACA recipients will not lose their protection from removal or work authorization. DHS will continue to accept the filing of both initial and renewal DACA applications but will process only the DACA renewal requests. New DACA applications will not be adjudicated unless the DACA program is upheld in subsequent litigation.
U.S. Citizenship and Immigration Services Extending Certain COVID-19-Related Flexibilities through January 24, 2023
On October 24, 2022, U.S. Citizenship and Immigration Services (USCIS) announced that it is extending certain COVID-19-related flexibilities through January 24, 2023. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023, inclusive:
Requests for Evidence;
Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind;
Notices of Intent to Terminate regional centers;
Notices of Intent to Withdraw Temporary Protected Status; and
Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:
The form was filed up to 90 calendar days from the issuance of a decision we made; and
USCIS made that decision between November 1, 2021, and January 24, 2023, inclusive.