Second Random Selection Complete for FY 2024 H-1B Cap – U.S. Citizenship and Immigration Services has completed the second random selection process from previously submitted registrations for the fiscal year 2024 H-1B cap.
Justice Dept. Settles with Miami Manufacturing Group on Immigration-Related Discrimination Claims – Under the terms of the settlement, Mr. Glass Group will pay $120,000 in civil penalties.
Labor Dept. Publishes Round 6 FAQs on Labor Contractors Under 2022 H-2A Final Rule – The topic for the Round 6 FAQs is “H-2A Labor Contractors.”
USCIS Changes Receipt Process for L-1 Nonimmigrant Intracompany Transferees Under Previously Approved Blanket L Petition – U.S. Citizenship and Immigration Services announced changes to how the agency issues receipts for L-1 nonimmigrant intracompany transferees (executives, managers, or specialized knowledge professionals) under a previously approved blanket L petition.
USCIS Issues New Guidance for Stateless Noncitizens – The Department of Homeland Security, through U.S. Citizenship and Immigration Services (USCIS), has issued new guidance to assist stateless noncitizens in the United States who wish to obtain immigration benefits or have submitted other requests to USCIS.
USCIS Will Conduct Second Random Selection for FY 2024 H-1B Cap – U.S. Citizenship and Immigration Services will soon select, using a random process, additional registrations from previously submitted electronic registrations for the fiscal year 2024 H-1B cap.
National Security Advisor Discusses ‘Legal Pathways Initiative’ With Mexico – U.S. National Security Advisor Jake Sullivan announced additional steps the United States is taking “to expand access to safe, orderly, legal migration pathways” following meetings in Mexico between the President of Mexico and a U.S. delegation.
State Dept. Proposes Rule Providing for Third-Party Attendance at Certain Appointments – The Department of State proposed a rule to allow private attorneys, interpreters, and other third parties to attend certain appointments at passport agencies and centers and at U.S. embassies and consulates abroad to assist the person requesting services.
Labor Dept., Interagency Task Force Announce Actions on Child Labor – The Department of Labor and the Interagency Task Force to Combat Child Labor Exploitation announced recent actions to hold companies accountable for violating federal child labor laws.
Revised I-9 Form Released – Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security related to temporary COVID-19 flexibilities.
USCIS Updates Visa Availability Approach for Managing EB-5 Immigrant Investor Petition Inventory – The new approach involves grouping petitions with filing dates on or before November 30, 2019, by new commercial enterprise within the queue of petitions where the project has been reviewed and there is a visa available or soon available.
USCIS Updates Policy Manual on Public Charge Inadmissibility Ground – U.S. Citizenship and Immigration Services has incorporated into its Policy Manual information on the categories of adjustment of status applicants to whom the public charge ground of inadmissibility applies.
DHS Reduces Brunei ESTA Validity Period – The Department of Homeland Security, in consultation with the Department of State, has reduced from two years to one year the Electronic System for Travel Authorization validity period for travel by citizens and nationals of Brunei Darussalam under the Visa Waiver Program to the United States.
DHS Adds Eight Qualifying Fields to STEM Designated Degree Program List – The Department of Homeland Security (DHS) has amended the DHS STEM Designated Degree Program List by adding eight qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each.
August Visa Bulletin Announces Retrogressions in Several Categories – The Department of State’s Visa Bulletin for August includes information on establishment of a Worldwide employment-based first preference (EB-1) final action date; retrogression in the employment-based first preference (EB-1) category for India; and retrogression in the employment-based third preference (EB-3) category for Rest of World countries, Mexico, and Philippines.
USCIS Expands Personalized Processing Times to Work Authorization and Travel Document Applications – U.S. Citizenship and Immigration Services is expanding myProgress (formerly known as personalized processing times) to Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document.
OFLC Publishes Assignment Groups for H-2B Applications With Work Start Dates of October 1, 2023 – The Department of Labor’s Office of Foreign Labor Certification has published the Assignment Groups for 2,157 H-2B applications covering 40,947 worker positions with a work start date of October 1, 2023.
Labor Dept. Publishes Round 2 FAQ on AEWR Rule – The Office of Foreign Labor Certification has issued a set of Frequently Asked Questions (FAQs) regarding the final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States.”
State Dept. Clarifies India EB-3 Retrogression in July – The Department of State clarified the Final Action Date retrogression applicable to employment-based third preference (EB-3) visa applicants chargeable to India and explained the reason for prorating India EB-3 visas.
USCIS Launches Online Rescheduling of Biometric Appointments, Releases Guidance on ‘Good Cause’ – U.S. Citizenship and Immigration Services (USCIS) has launched a new self-service tool allowing rescheduling of most biometric services appointments before the date of the appointment. USCIS also clarified its guidance on policies and procedures related to “good cause” in this context.
DHS Announces New Parole Processes for Colombians, Salvadorans, Guatemalans, and Hondurans – While awaiting an immigrant visa, eligible individuals can request work authorization that can be maintained throughout the parole period. When the immigrant visa becomes available, the individual may apply to become a lawful permanent resident.
DHS Updates ESTA Guidance re Cuba-Related VWP Travel Restrictions – The Department of Homeland Security’s Carrier Liaison Program has incorporated changes related to the designation of Cuba as a State Sponsor of Terrorism, making individuals who have been present in Cuba on or after that date ineligible for travel under the Visa Waiver Program.
Global: Hong Kong – New schemes have been announced for capital investment entrants and top talent.
U.S. Citizenship and Immigration Services (USCIS) has completed the second random selection process from previously submitted registrations for the fiscal year (FY) 2024 H-1B cap.
In March 2023, USCIS conducted an initial random selection. The initial filing period for those with selected registrations for FY 2024 was April 1, 2023, through June 30, 2023. Only petitioners with selected registrations for FY 2024 are eligible to file H-1B cap-subject petitions.
USCIS noted that the period for filing the H-1B cap-subject petition will be at least 90 days and will be indicated on the registration selection notice. Online filing is not available for H-1B petitions, so petitioners filing H-1B petitions must do so by paper, USCIS said. Petitioners must include a printed copy of the applicable registration selection notice with the FY 2024 H-1B cap-subject petition.
- USCIS alert (July 31, 2023). https://www.uscis.gov/newsroom/alerts/second-random-selection-from-previously-submitted-registrations-complete-for-fy-2024-h-1b-cap
- USCIS alert (July 27, 2023). https://www.uscis.gov/newsroom/alerts/uscis-will-conduct-second-random-selection-from-previously-submitted-fy-2024-h-1b-cap-registrations
On August 2, 2023, the Department of Justice (DOJ) announced a settlement agreement with three corporate entities, Mr. Glass Doors and Windows Inc., Mr. Glass Doors and Windows Manufacturing LLC, and Powder Coating Technologies LLC (collectively Mr. Glass Group). The settlement resolves DOJ’s determination that Mr. Glass Group violated the Immigration and Nationality Act (INA) by discriminating against non-U.S. citizens when checking their permission to work in the United States.
The DOJ investigation determined that from at least March 1, 2018, to Sept. 16, 2020, Mr. Glass Group routinely required lawful permanent residents to present a specific immigration document when checking their permission to work, based on the employees’ citizenship or immigration status. Federal law allows all workers to choose which valid, legally acceptable documents to present to demonstrate their identity and permission to work, regardless of citizenship, immigration status, or national origin. The INA’s anti-discrimination provision prohibits employers from asking for specific or unnecessary documents for this purpose, DOJ said.
Under the terms of the settlement, Mr. Glass Group will pay $120,000 in civil penalties. The agreement also requires Mr. Glass Group to train its personnel on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.
- DOJ press release (Aug. 2, 2023). https://www.justice.gov/opa/pr/justice-department-secures-agreement-miami-based-manufacturer-resolve-immigration-related
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued Round 6 in a series of frequently asked questions (FAQs) on the 2022 H-2A Final Rule (Temporary Agricultural Employment of H-2A Nonimmigrants in the United States).
The topic for the Round 6 FAQs is “H-2A Labor Contractors.” It provides answers to questions on filing, work contracts with fixed-site agricultural business clients, housing and/or transportation provided by fixed-site agricultural business clients, Farm Labor Contractor—Farm Labor Contractor Employee Certificate(s) of Registration, and surety bonds.
- OFLC announcement (Aug. 3, 2023). https://www.dol.gov/agencies/eta/foreign-labor
- Round 6: H-2A Labor Contractors, 2022 H-2A Final Rule FAQ (Aug. 3, 2023). https://tinyurl.com/czuw8eap
USCIS Changes Receipt Process for L-1 Nonimmigrant Intracompany Transferees Under Previously Approved Blanket L Petition
U.S. Citizenship and Immigration Services (USCIS) announced changes to how the agency issues receipts for L-1 nonimmigrant intracompany transferees (executives, managers, or specialized knowledge professionals) under a previously approved blanket L petition.
USCIS said that when filing Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, together with Form I-129, Petition for a Nonimmigrant Worker, the petitioner will now receive two notices: the receipt notice and the approval notice (if approved). Petitioners will no longer receive a stamped and signed Form I-129S in conjunction with the Form I-129 approval. Instead, the petitioner will receive a separate approval notice for the Form I-129S, which serves as the endorsement.
- USCIS alert (Aug. 3, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-receipts-process-for-form-i-129s
The Department of Homeland Security (DHS), through U.S. Citizenship and Immigration Services (USCIS), has issued new guidance to assist stateless noncitizens in the United States who wish to obtain immigration benefits or have submitted other requests to USCIS. USCIS defines stateless individuals as “those who are not legally considered a citizen of any country, and therefore may be denied legal identity, and struggle to access education, healthcare, marriage, and job opportunities. Individuals can be born stateless or become stateless because of discrimination, war and conflict, or changing borders and laws.” The new guidance “clarifies when and how USCIS may consider a noncitizen stateless for the purpose of adjudicating immigration benefits or other requests.”
USCIS said it will create and implement new procedures to assist USCIS officers when assessing statelessness, to include updating training documents on statelessness, developing more robust training procedures for officers, and setting up standard operating procedures for officers to request an internal assessment of statelessness where it may be relevant to an individual’s application or benefit request. The new guidance will include “examples of documentation or evidence that may help USCIS officers determine whether noncitizens may be considered stateless for USCIS purposes,” the agency said.
In addition, USCIS said, implementing this update will “enable USCIS to gather more comprehensive and accurate data on this vulnerable group of people. The United Nations High Commissioner for Refugees (UNHCR) estimates there are approximately 218,000 people residing in the United States who are potentially at risk of statelessness.”
- USCIS news release (Aug. 1, 2023). https://www.uscis.gov/newsroom/news-releases/dhs-issues-guidance-for-stateless-noncitizens-in-the-united-states
U.S. Citizenship and Immigration Services (USCIS) announced on July 27, 2023, that it will soon select, using a random process, additional registrations from previously submitted electronic registrations for the fiscal year (FY) 2024 H-1B cap.
In March 2023, USCIS conducted an initial random selection. The initial filing period for those with selected registrations for FY 2024 was April 1, 2023, through June 30, 2023. USCIS noted that only petitioners with selected registrations for FY 2024 are eligible to file H-1B cap-subject petitions.
USCIS said it will announce when the second selection process is completed and all prospective petitioners with selected registrations have been notified that they are eligible to file an H-1B cap-subject petition for the beneficiary.
USCIS will update the myUSCIS accounts of those with selected registrations to include a selection notice, which includes details of when and where to file.
- USCIS alert (July 27, 2023). https://www.uscis.gov/newsroom/alerts/uscis-will-conduct-second-random-selection-from-previously-submitted-fy-2024-h-1b-cap-registrations
U.S. National Security Advisor Jake Sullivan released a statement on July 28, 2023, announcing additional steps the United States is taking “to expand access to safe, orderly, legal migration pathways” following meetings in Mexico between Mexican President Andres Manuel Lopez Obrador and a U.S. delegation led by White House Homeland Security Advisor Elizabeth Sherwood-Randall.
Mr. Sullivan announced the United States’ “full support” for “an international multipurpose space that the Government of Mexico plans to establish in southern Mexico to offer new refugee and labor options for the most vulnerable people who are currently in Mexico. We also commit to accept refugee resettlement referrals from qualified individuals from Cuba, Haiti, Nicaragua, and Venezuela who are already in Mexico.”
President Biden “has significantly expanded legal pathways to the United States, in line with the goals of the Los Angeles Declaration on Migration and Protection,” Mr. Sullivan said. “We encourage migrants to use these legal pathways instead of putting their lives in the hands of dangerous smugglers and traffickers. Pursuant to our laws, those seeking to enter the United States unlawfully will continue to face strong consequences, including removal, possible criminal prosecution, and a bar on reentry.”
- Statement From National Security Advisor Jake Sullivan on Legal Pathways Initiative With Mexico (July 28, 2023). https://tinyurl.com/yeckx8py
On July 26, 2023, the Department of State (DOS) proposed a rule to allow private attorneys, interpreters, and other third parties to attend certain appointments at passport agencies and centers and at U.S. embassies and consulates abroad to assist the person requesting services (the applicant/requester).
DOS said the rulemaking will apply only to appointments in support of an application for a U.S. passport, either domestically or overseas; to appointments related to a request for a Consular Report of Birth Abroad or a Certificate of Loss of Nationality of the United States (CLN); and to other appointments for certain other services offered by American Citizens Services (ACS) units at U.S. embassies and consulates overseas (posts).
DOS will accept comments on the proposed rule until September 25, 2023.
- DOS proposed rule, 88 Fed. Reg. 48143 (July 26, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-26/pdf/2023-15744.pdf
The Department of Labor (DOL) and the Interagency Task Force to Combat Child Labor Exploitation announced recent actions to hold companies accountable for violating federal child labor laws.
For example, DOL said its Wage and Hour Division has significantly enhanced child labor enforcement efforts. Between October 1, 2022, and July 20, 2023, as a result of stepped-up enforcement, the agency concluded 765 child labor cases finding 4,474 children employed in violation of federal child labor laws. The agency assessed employers more than $6.6 million in penalties. DOL said these cases “reflect a 44 percent increase in children found employed in violation of federal law and an 87 percent increase in penalties assessed from the same time period in the previous fiscal year. In addition, the agency is currently pursuing more than 700 open child labor cases.”
DOL also recently announced findings that three businesses operating 62 McDonald’s locations across Kentucky, Indiana, Maryland, and Ohio had employed 305 children to work more than the legally permitted hours and perform tasks prohibited by law for young workers. In all, DOL said, the investigations led to assessments of $212,544 in civil money penalties against the employers. DOL also announced child labor violations affecting 83 minors at 16 McDonald’s franchise locations in Louisiana and Texas. For example, the division determined one franchisee allowed three children to operate manual deep fryers, a task prohibited for employees under age 16. DOL assessed more than $77,500 in civil money penalties to two McDonald’s franchisees for violations.
- DOL news release (July 27, 2023). https://www.dol.gov/newsroom/releases/osec/osec20230727
U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form I-9, Employment Eligibility Verification. Among the updates is a checkbox employers enrolled in E-Verify can use to indicate that they remotely examined identity and employment authorization documents under an alternative procedure authorized by the Department of Homeland Security (DHS) related to temporary COVID-19 flexibilities. Under the alternative procedure, the employer must examine and retain copies of documents and must conduct a live video interaction with the employee.
Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023) may choose to use the new alternative procedure to satisfy the physical document examination requirement by August 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023, USCIS said.
In addition to the new checkbox, USCIS said the revised Form I-9:
- Reduces Sections 1 and 2 to a single-sided sheet;
- Is designed to be a fillable form on tablets and mobile devices;
- Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
- Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
- Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation; and
- Reduces instructions from 15 pages to 8 pages.
The revised Form I-9 (edition date 08/01/23) is available on uscis.gov. The related USCIS notice was published in the Federal Register on July 25, 2023. USCIS said employers can use the current Form I-9 (edition date 10/21/19) through October 31, 2023. Starting November 1, 2023, all employers must use the new Form I-9.
- USCIS alert (July 21, 2023). https://www.uscis.gov/newsroom/alerts/uscis-to-publish-revised-form-i-9
- “Introduction of a New Version of Employment Eligibility Verification Form,” USCIS Federal Register notice (advance copy, published July 25, 2023). https://public-inspection.federalregister.gov/2023-15667.pdf
- “Optional Alternative 1 to the Physical Document Examination Associated with Employment Eligibility Verification (Form I-9),” USCIS Federal Register notice (advance copy, published July 25, 2023). https://public-inspection.federalregister.gov/2023-15533.pdf
U.S. Citizenship and Immigration Services (USCIS) announced on July 18, 2023, that it is updating its visa availability approach for managing the inventory of Form I-526, Immigrant Petition by Alien Investor.
The new approach involves grouping petitions with filing dates on or before November 30, 2019, by new commercial enterprise within the queue of petitions where the project has been reviewed and a visa is available or soon will become available. USCIS said that assigning multiple petitions associated with the same new commercial enterprise to the same adjudicator(s) will allow them to process such petitions more efficiently and reduce backlogs.
USCIS said this new approach is “effective July 2023.”
- USCIS alert (July 18, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-visa-availability-approach-for-managing-form-i-526-petition-inventory
- Update to Visa Availability Approach for Form I-526 (July 18, 2023). https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/update-to-visa-availability-approach-for-form-i-526
U.S. Citizenship and Immigration Services (USCIS) has incorporated information into its Policy Manual on the categories of adjustment of status applicants to whom the public charge ground of inadmissibility applies “to make it easier to identify whether the public charge ground of inadmissibility applies to a specific adjustment of status category.”
USCIS said the update is intended to help applicants respond accurately to questions related to the public charge ground of inadmissibility on Form I-485, Application to Register Permanent Residence or Adjust Status, which will provide officers with the information they need to adjudicate the application and, if applicable, make a public charge inadmissibility determination without issuing a Request for Evidence for this information.
- USCIS alert (July 20, 2023). https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-manual-to-make-it-easier-to-identify-who-is-subject-to-the-public-charge-ground
Effective July 6, 2023, the Department of Homeland Security (DHS), in consultation with the Department of State, has reduced from two years to one year the Electronic System for Travel Authorization (ESTA) validity period for travel by citizens and nationals of Brunei Darussalam (Brunei) under the Visa Waiver Program (VWP) to the United States.
According to DHS, this reduction is due to the inability of Brunei’s government to satisfy several VWP requirements. U.S. Customs and Border Protection’s Carrier Liaison Program said this reduction only affects new ESTA applications received after the effective date and is not retroactive.
- Brunei ESTA Validity Period, CBP, 88 Fed. Reg. 43051 (July 6, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-06/pdf/2023-13441.pdf
The Department of Homeland Security (DHS) has amended the DHS STEM Designated Degree Program List by adding eight qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each. No CIP codes from the existing list are being removed.
The eight added fields and CIP codes are:
- Landscape Architecture (04.0601)
- Institutional Research (13.0608)
- Mechatronics, Robotics, and Automation Engineering Technology/Technician (15.0407)
- Composite Materials Technology/Technician (15.0617)
- Linguistics and Computer Science (30.4801)
- Developmental and Adolescent Psychology (42.2710)
- Geospatial Intelligence (43.0407)
- Demography and Population Studies (45.0501)
The list is used to determine whether a degree obtained by certain F-1 nonimmigrant students following the completion of a program of study qualifies as a science, technology, engineering, or mathematics (STEM) degree as determined by DHS, as required for the F–1 student to be eligible to apply for a 24-month extension of post-completion optional practical training (OPT).
DHS noted that “[i]nterested parties, including members of the public, may nominate a CIP code for inclusion on, or removal from, the STEM list.” Nominations may be submitted by email to the SEVP Response Center at SEVP@ice.dhs.gov, with the subject line ‘”Attention: STEM CIP Code Nomination.”
- DHS notice, 88 Fed. Reg. 44381 (July 12, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-12/pdf/2023-14807.pdf
The Department of State’s Visa Bulletin for August includes the following information:
- Establishment of Worldwide employment-based first preference (EB-1) final action date. An EB-1 final action date will be established for Rest of World countries, Mexico, and Philippines in August. Rest of World countries, Mexico, and Philippines will be subject to a final action date of 01AUG23. It is likely that in October the category will return to “Current” for these countries.
- Retrogression in employment-based first preference (EB-1) for India. The EB-1 final action date for India will retrogress in August. India will be subject to an EB-1 final action date of 01JAN12. It is likely that in October the final action date will advance.
- Retrogression in employment-based third preference (EB-3) for Rest of World countries, Mexico, and Philippines. The Rest of World, Mexico, and Philippines EB-3 final action dates will retrogress in August to 01MAY20.
- Department of State’s Visa Bulletin (August 2023). https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-august-2023.html
U.S. Citizenship and Immigration Services (USCIS) announced on July 12, 2023, that it is expanding myProgress (formerly known as personalized processing times) to Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document. MyProgress is also available for applicants with a USCIS online account who file Form I-90, Application to Replace Permanent Resident Card, among others.
USCIS said that myProgress provides personalized estimates of wait times for major milestones, including final case decisions. USCIS noted that although estimates are based on historical patterns of cases with similar specifics, they “are not a guarantee of speed, cannot take into consideration all possible unique application processing delays, and may over- or underestimate the true processing time.”
To view estimated case timelines, applicants must first create a USCIS online account or log into their account and select their pending application. If they e-filed or linked one of the applicable forms to their online account using an online access code, they will see a myProgress tab for their application. The myProgress tab displays the estimated wait time until their case has a decision, along with a checkmark beside three milestones as they are completed:
- Confirmation that the application was received;
- Completion of the biometric services appointment (if required); and
- Decision on the pending case.
Applicants should visit the public Check Case Processing Times webpage to determine if they are eligible to file an Outside of Normal Processing Times service request, USCIS said.
- USCIS alert (July 12, 2023). https://www.uscis.gov/newsroom/alerts/uscis-expands-myprogress-to-form-i-765-and-form-i-131
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has published the Assignment Groups for 2,157 H-2B applications covering 40,947 worker positions with a work start date of October 1, 2023. OFLC said it completed the randomization process on July 6, 2023, and assigned to National Processing Center analysts all H-2B applications placed in Assignment Group A for issuance of Notices of Deficiency or Acceptance. Group A includes enough worker positions to reach the H-2B semiannual visa allotment of 33,000.
One additional Assignment Group was created for the remaining applications and associated worker positions. Each filing was randomly given a unique number in accordance with OFLC’s randomization process and placed into a group for assignment to analysts for review and processing, OFLC said.
The agency noted that on July 6, 2023, it provided written notice to each employer (and the employer’s authorized attorney or agent) informing them about the Assignment Group for their application(s).
- OFLC notice (scroll to July 10, 2023). https://www.dol.gov/agencies/eta/foreign-labor
The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued a set of Frequently Asked Questions (FAQs) regarding the final rule, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States,” which was published on February 28, 2023.
The Round 2 FAQs provide guidance on Adverse Effect Wage Rate (AEWR) determinations, including how a State Workforce Agency (SWA) and the Certifying Officer (CO) determine which AEWR applies to a job opportunity, how SWAs and COs determine the AEWR for job duties with multiple Standard Occupational Classification codes, and the impact of certain job duties on AEWRs.
- OFLC notice (scroll to July 11, 2023). https://www.dol.gov/agencies/eta/foreign-labor
- Round 2 FAQs for AEWR final rule (July 11, 2023). https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/2023%20AEWR%20Rule%20FAQ%20-%20Round%202%20-%207-11-2023.pdf
- AEWR final rule, 88 Fed. Reg. 12760 (Feb. 28, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-28/pdf/2023-03756.pdf
The Department of State (DOS) recently clarified the Final Action Date retrogression applicable to employment-based third preference (EB-3) visa applicants chargeable to India, effective with the July 2023 Visa Bulletin, and explained the reason for prorating India EB-3 visas.
DOS noted that the Final Action Date is the priority date of the first applicant for whom a visa number could not be immediately allocated. India is currently oversubscribed for immigrant visas in numerically limited immigrant visa categories. The annual limits will reset with the start of the new fiscal year (FY 2024) on October 1, 2023, DOS said. The EB-3 Final Action Date for India “is expected to advance once the annual limits reset for FY 2024; however, the movement of this date throughout the fiscal year depends on various factors” such as visa demand and the employment-based annual limit, which DOS projects to be substantially lower than in FY 2023.
The Department of State’s Visa Bulletin for July notes that due to high demand, retrogressions have been necessary for the employment-based third preference (EB-3) category for India, Mexico, Philippines, and Rest of World. The Rest of World, Mexico, and Philippines EB-3 final action dates have retrogressed to 01FEB22. EB-3 applicants from India are subject to a final action date of 01JAN09.
- India EB-3 Retrogression, DOS notice (June 26, 2023). https://travel.state.gov/content/travel/en/News/visas-news/india-eb-3-retrogression.html
- of State Visa Bulletin (July 2023). https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-july-2023.html
U.S. Citizenship and Immigration Services (USCIS) has launched a new self-service tool allowing benefit requestors, and their attorneys and accredited representatives, to reschedule most biometric services appointments before the date of the appointment. USCIS also clarified its guidance on policies and procedures related to “good cause” in this context.
USCIS said good cause exists “when the reschedule request provides sufficient reason for the benefit requestor’s inability to appear on the scheduled date.” Sufficient reasons may include but are not limited to:
- Illness, medical appointment, or hospitalization;
- Previously planned travel;
- Significant life events such as a wedding, funeral, or graduation ceremony;
- Inability to obtain transportation to the appointment location;
- Inability to obtain leave from employment or caregiver responsibilities; and
- Late delivered or undelivered biometric services appointment notice.
Previously, benefit requestors and accredited representatives could request to reschedule a biometric services appointment only by calling the USCIS Contact Center. With the new tool, those who have or create a USCIS online account can reschedule most requests for biometric services appointments without calling the Contact Center, USCIS said. The new tool, however, cannot be used to reschedule an appointment that already has been rescheduled two or more times, is within 12 hours, or has already passed. USCIS said it only accepts untimely rescheduling requests made to the USCIS Contact Center. It does not accept such requests by mail, in person at a USCIS office, or through the myUSCIS online rescheduling tool.
The biometric services appointment rescheduling tool can be accessed via a USCIS online account regardless of whether the pending case was submitted online or by mail, the agency said. Benefit requestors and accredited representatives can call the USCIS Contact Center to reschedule an appointment, but USCIS “strongly encourages users to use the new tool to save time, increase efficiency, and reduce call volume to the USCIS Contact Center.”
The USCIS Contact Center’s toll-free number inside the United States is 800-375-5283 (TTY 800-767-1833) Monday through Friday, 8 am to 8 pm ET. Outside the United States, the number is 212-620-3418.
- USCIS news release (July 6, 2023). https://www.uscis.gov/newsroom/news-releases/uscis-launches-online-rescheduling-of-biometrics-appointments
- USCIS policy alert, PA-2023-19 (July 6, 2023). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230706-ASCAppointments.pdf
- USCIS online account. https://myaccount.uscis.gov/
On July 7, 2023, the Department of Homeland Security (DHS) announced the implementation of new family reunification parole processes for eligible nationals of Colombia, El Salvador, Guatemala, and Honduras. DHS said the new processes are for “nationals from those countries whose family members are U.S. citizens or lawful permanent residents and who have received approval to join their family in the United States. Specifically, nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply” to become lawful permanent residents.
DHS said that while awaiting an immigrant visa, such an individual can request work authorization that can be maintained throughout the parole period. When the immigrant visa becomes available, the individual may apply to become a lawful permanent resident.
- DHS news release (July 7, 2023). https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-processes-for-colombia-el-salvador-guatemala-and-honduras
- Colombia notice, 88 Fed. Reg. 43591 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14472.pdf
- El Salvador notice, 88 Fed. Reg. 43611 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14475.pdf
- Guatemala notice, 88 Fed. Reg. 43581 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14473.pdf
- Honduras notice, 88 Fed. Reg. 43601 (July 10, 2023). https://www.govinfo.gov/content/pkg/FR-2023-07-10/pdf/2023-14474.pdf
The Department of Homeland Security’s (DHS) Carrier Liaison Program has updated the Electronic System for Travel Authorization (ESTA) application and mobile app to incorporate changes related to the designation of Cuba as a State Sponsor of Terrorism on January 12, 2021, making individuals who have been present in Cuba on or after that date ineligible for travel under the Visa Waiver Program (VWP). The restriction on VWP travel also applies to individuals who are dual nationals of both a VWP country and Cuba at the time of applying.
If an ESTA has already been approved and it is later determined that the traveler has been present in Cuba or holds dual nationality with both a VWP country and Cuba, the ESTA will be revoked. Non-VWP travel to the United States is not barred for travelers affected by the restriction who do not meet exemption criteria, however. DHS said that such travelers can apply for a nonimmigrant visa at any U.S. embassy or consulate.
Limited exceptions to the VWP travel restrictions include military personnel and government employees who are exempted based on their presence in Cuba if such presence was in order to carry out their official duties for military service in the armed forces of a VWP country or as full-time government employees of a VWP country. There are no exemptions for presence in Cuba on behalf of international organizations or dual nationality with both a VWP country and Cuba, DHS said.
- CBP notice (July 6, 2023). https://tinyurl.com/49nxpy9n (scroll down)
New schemes have been announced for capital investment entrants and top talent.
Capital Investment Entrant Scheme
The Capital Investment Entrant Scheme (CIES), which had permitted investors to acquire Hong Kong residency by making a passive investment, was suspended by the Hong Kong Special Administrative Region (HKSAR) government in 2015. Before the suspension, the latest version of the CIES in 2010 had removed investing in real estate as a qualifying investment but permitted an applicant who invested HKD 10 million (about USD 1.25M) in authorized financial products in Hong Kong to qualify for residency. This version of the CIES was then suspended on January 15, 2015, but the Immigration Department continued to process applications received on or before the suspension date. As of December 31, 2021, formal approval had been granted to 35,000 applicants to reside in Hong Kong, bringing a total investment amounting to HKD 316.9 billion.
On April 19, 2023, the HKSAR government announced in its 2023/2024 Budget Report that a new CIES will be introduced. The new scheme is expected to generate high demand for financial and related professional services, and to create more employment opportunities in wealth and asset management to facilitate Hong Kong’s position as an international wealth and asset management hub. In the new scheme, it is anticipated that new asset categories benefiting the long-term development of Hong Kong in innovation and technology sectors will be included, apart from the traditional financial asset types.
The government is formulating details of the new scheme, which will generally adopt the framework and application criteria of the original CIES, with possible adjustments to the investible areas in Hong Kong, and the new CIES investment threshold will be increased to a multiple of the previous requirement. Apart from financial assets, an applicant will be able to invest in new asset categories benefitting the long-term development of Hong Kong (including the innovation and technology sector), with a view to attracting new capital and talent to Hong Kong, bringing new impetus to the economy and fostering the development of industries in Hong Kong at the same time.
Top Talent Pass Scheme
The Top Talent Pass Scheme (TTPS) was launched on December 28, 2022, to attract highly skilled global talent to enter Hong Kong without employment conditions. Successful applicants can enter Hong Kong for two years without a sponsoring employer and will be permitted to work, change employers, or establish a business in Hong Kong. To extend their stay after the initial two years, the applicant must present documentary evidence that they have secured a professional job and remuneration package at the prevailing market level or joined a business.
To qualify for entry under TTPS, the applicant must meet one of three categories:
Category A: Persons with an annual income of HKD 2.5 million or more or its equivalent in foreign currency in the year preceding the date of application.
Category B: Persons who have obtained a bachelor’s degree from one of the world’s top 100 universities and who have at least three years of work experience over the past five years immediately preceding the date of application.
Category C: Persons who have obtained a bachelor’s degree from one of the world’s top 100 universities within the past five years immediately preceding the date of application but have less than three years of work experience, subject to an annual quota of 10,000 to be allotted on a first-come, first-served basis.
This program was launched to attract talent to Hong Kong and is a key priority for Hong Kong to remain competitive as an international financial center because of the wave of emigration on the heels of the Hong Kong government’s COVID-19-related restrictions, which have now been lifted, as well as enactment of the National Security Law.
According to Chief Executive John Lee, more than 100,000 applications have been received so far, with 61,000 approved and 10,000 arrivals, with the latest official figure for the first half of the year to be released soon. The scheme was intended to counteract a “brain drain,” which saw a net outflow of 60,000 residents in 2022.
In response to a lawmaker’s query, Director of Immigration Au Ka-wang said that nearly 95 percent of applicants for the Top Talent Pass Scheme were from mainland China, with only three percent coming from Canada, Australia, the United States, and Singapore.
Whether the persons with approvals will actually come to Hong Kong and whether these arrivals will be able to meet the needs of companies in Hong Kong to attract global talent who have left or are planning to leave remains to be seen.
ABIL Member/Firm News
Business Today’s Top 10 Most Influential Business Lawyers in the USA 2023 includes our Managing Partner, Charles Kuck
For more information, see https://businesstoday.news/top-10-most-influential-immigration-business-lawyers-in-the-usa-2023/
Charles Kuck released a new podcast on H-1B issues, including the results of his H-1B Freedom of Information Act request for FY 2022 (for which he received FY 2023 data), the percentages of approval and submission, and what that means for the FY 2024 lottery. The podcast also includes discussion about the H-1B Canada program and a new bill in the U.S. Congress to double the H-1B numbers. https://soundcloud.com/user-474250731/the-immigration-hour-podcast-for-july-26-2023-1
Mr. Kuck was quoted by Bloomberg Law in “SCOTUS Ruling and DACA.” Mr. Kuck said, “States don’t get to dictate federal enforcement policy. DACA is enforcement policy. It’s exactly the same thing the Supreme Court just ruled on.” Mr. Kuck said the federal government also clearly had authority to issue work permits after promulgating DACA regulations. https://www.bloomberglaw.com/login?target=https%3A%2F%2Fwww.bloomberglaw.com%2Fcitation%2FBNA%252000000183a948d0f5ab93effc90d30001 [subscription required]
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS case processing times online: https://egov.uscis.gov/processing-times/
Department of State Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html