Biden administration rolls out new asylum restrictions
On February 21st, 2023, the Biden Administration announced new restrictions on asylum eligibility for migrants arriving at the U.S. border. Under this proposed rule, asylum seekers who cross the southwest border of the U.S. without authorization and “without having (1) availed themselves of existing lawful processes, (2) presented at a port of entry in compliance with the rule’s requirements, or (3) been denied asylum in a third country through which they traveled, would be presumed ineligible for asylum unless they meet certain limited exceptions.” Applicants who are unable to show a valid claim to protection under the rule will be subject to prompt removal and may be subject to a five-year bar to reentry. The Department of Homeland Security’s fact sheet on the proposed rule can be found here.
The proposed rule will be posted in the Federal Register for a 30-day public comment period and will likely take effect in May, when a pandemic-era border restriction, known as Title 42’s pandemic related border restrictions are set to expire on May 11th. This new rule is expected to remain in effect for two years.
USCIS Updates Child Status Protection Act (CSPA) Age Calculation for Certain Adjustment of Status Applicants
On February 14th, 2023, USCIS issued guidance in the agency’s Policy Manual on when an immigrant visa number is considered “available” for the purpose of calculating an applicant’s age under the Child Status Protection Act (CSPA).
Generally, a child who applies for permanent residency based on a parent’s approved immigrant visa petition must be under the age of 21. A child who “ages out” during the immigration process may lose their eligibility. Under the CSPA, the amount of time that an immigrant visa petition remains pending may be subtracted from the child’s age to determine whether they have “aged out” at the time their parent’s priority date becomes current.
Under the previous CSPA guidance, USCIS considered a visa available for purposes of the CSPA age calculation based only on the Final Action Date chart of the Visa Bulletin, even if the applicant could apply for adjustment of status using the earlier date in the “Dates for Filing” chart. Under this new guidance, USCIS will now use the Dates for Filing chart to calculate these noncitizens’ ages for CSPA purposes, which provides these noncitizens with more certainty about their eligibility to adjust status. If these noncitizens are eligible to adjust status because of the change in policy and they have filed for adjustment of status, they will also be eligible to apply for employment and travel authorization based on their pending adjustment of status application, and they generally will not lose previously issued employment or travel authorization.
FY 2024 H-1B Cap Registration Opens on March 1st
USCIS announced on January 27, 2023, that the H-1B initial cap registration period will open at 12pm EST on March 1, 2023 and run through 12pm EST March 17, 2023. Prospective employers and their representatives will be able to submit registrations for foreign workers using their myUSCIS online account. The nonrefundable registration fee is $10.
More information about the H-1B Lottery Registration process from the American Immigration Lawyer’s Association (AILA) can be found here.
Please contact Iandoli, Desai, and Cronin as soon as possible if you would like to register a foreign worker in this year’s H-1B lottery.
February 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 February 2023, USCIS has indicated that for Employment-Based immigration, the “Dates for Filing” 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 February, the EB-1 preference category on the Final Action Chart for all countries other than China and India is “current.” This means the I-485 applications may be filed immediately with the Form I-140. However, applicants from China and India are subject to the final action date of February 1, 2022.
The EB-2 preference category remains retrogressed for all countries (including China and India) which means that individuals in these categories will not be able to file I-485 applications unless they have a “current” priority date. The priority date for all countries except India and China in the EB-2 preference remains November 1, 2022. All otherwise qualified individuals with a priority date before November 1, 2022, may file their I-485 applications.
The EB-3 preference category is “current” for all countries (excluding China and India) but is expected to backlog in the future. The Visa Bulletin states the following regarding the EB-3 category:
“Higher than expected number use in the Employment Third Preference “Other Workers” (EW) category, most notably amongst applicants with earlier priority dates, has necessitated further retrogressions in the worldwide final action date and application filing date for February to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. Except for China and India, all countries are subject to a final action date of 01JAN20 and an application filing date of 01FEB20.”
If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
Department of Homeland Security Announces Special Student Relief for Haitian Students
The Department of Homeland Security published a notice in the Federal Register on January 25, 2023 announcing the suspension of certain regulatory requirements for Haitian students in F-1 nonimmigrant status who are experiencing severe financial hardship. The notice temporarily suspends all on- and off-campus employment regulations for eligible Haitian students. These suspensions will remain in effect through August 3, 2024. Immigration and Customs Enforcement (ICE) has published a F-1 Fact Sheet for Special Student Relief on its website.
U.S. Citizenship and Immigration Services to Expand Premium Processing to Certain F-1 Students Seeking OPT and STEM OPT
U.S. Citizenship and Immigration Services (USCIS) announced that premium processing will be expanded in March for F-1 students seeking Optional Practical Training (OPT) and STEM OPT extensions with a pending Form I-765, Application for Employment Authorization. Beginning in April, premium processing will be expanded to initial filings of Form I-765 for OPT and STEM OPT. The specific dates in March and April will be announced this month.
U.S. Citizenship and Immigration Services Redesigns Green Card and Employment Authorization Document
U.S. Citizenship and Immigration Services (USCIS) announced that it began issuing redesigned Green Cards and Employment Authorization Documents (EADs) on January 20, 2023. USCIS stated that some Green Cards and EADs issued after this date may still display the existing design format, but both versions of the cards are acceptable for Form I-9, Employment Eligibility Verification, and E-Verify. The M-274 Handbook for Employers describes the changes in each document.
U.S. Citizenship and Immigration Services Announces Final Phase of Premium Processing Expansion for Certain I-140 Petitions
U.S. Citizenship and Immigration Services (USCIS) has implemented the final phase of the premium processing expansion for Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications. Beginning January 30, 2023, USCIS will accept Form I-907, Request for Premium Processing Service, for all pending and initial EB-1C (“Multinational Executives and Managers”) and EB-2 NIW (“National Interest Waiver”) petitions.
U.S. Citizenship and Immigration Services to Resume Adjudication of H-4, H-4 EAD, and L-2 Applications with Form I-129
In a major settlement agreement in Edakunni v. Mayorkas, U.S. Citizenship and Immigration Services (USCIS) agreed to resume processing H-4, H-4 EAD, and L-2 applications in conjunction with Form I-129, Petition for a Nonimmigrant Worker. These applications are filed to extend the status and/or work authorization of certain foreign workers’ dependents. Previously, these applications were approved in tandem with the primary worker’s Form I-129 petition. The institution of the biometrics requirement in 2019 and the COVID-19 pandemic created significant delays in the adjudication of dependents’ applicants. More than 100 plaintiffs sued the Department of Homeland Security and a settlement agreement was reached on January 20, 2023 to avoid further litigation. Effective January 25, 2023 and for the next two years, USCIS will concurrently adjudicate Form I-539 and Form I-765 concurrently with Form I-129 for H and L dependent family members. Please note that L-2 spouses will continue to receive L-2S on their I-94 records upon entry to the United States to permit work authorization and do not need to file Form I-765.
Department of Homeland Security Announces New Parole Program for Cuba, Haiti, Venezuela, and Nicaragua
On January 5, 2023, the Department of Homeland Security announced a new parole program for individuals in Cuba, Haiti, Nicaragua, and Venezuela to safely and legally travel to the United States. Individuals in the designated countries must have U.S.-based financial support and undergo a security screening before traveling to the United States. U.S.-based individuals must file Form I-134A, Online Request to be a Supporter and Declaration of Financial Support on the USCIS website to initiate the process. USCIS has created a resource page for additional information on program eligibility and requirements.
This program is free to use and does not require the U.S.-based supporter or the foreign national to pay the government a fee. Please be cautious of recent scams sent via email, text and messaging apps, and social media promising U.S.-based sponsorship for a fee.