Immigration News Update Newsletter — November 2023

Headlines

Our Managing Partner has published a new blog post: The Visa Apocalypse is Upon Us—Welcome to the Future

Executive Order on Artificial Intelligence Includes Immigration-Related Provisions – On October 30, 2023, President Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5 of the order, “Promoting Innovation and Competition,” includes various immigration-related provisions.

DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2024 – On November 3, 2023, the Department of Homeland Security, in consultation with the Department of Labor, announced that it will make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024 via a temporary final rule. This is on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year.

Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension – U.S. Citizenship and Immigration Services announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents while their renewal applications are pending.

Texas Service Center Is New Filing Location for H-2A, H-2B, and Certain CNMI Petitions as of November 1 – Beginning November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.

USCIS Updates Guidance on EB-5 Regional Center Program – U.S. Citizenship and Immigration Services is updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.

USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants – The update adds information about how U.S. Citizenship and Immigration Services determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates.

USCIS Allows Additional 30 Days for Comments on E-Verify NextGen and Revisions to E-Verify – U.S. Citizenship and Immigration Services is allowing 30 additional days for public comments on several information collection notices related to E-Verify.

Reminder to Employers: Use New I-9 Form as of November 1 – The Citizenship and Immigration Services (CIS) Ombudsman emailed a reminder to employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.

State Dept. Intends to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Applicants – The Department of State intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants, beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and Budget for review.

DHS Plans to Amend H-1B Regulations Governing Specialty Occupation Workers – The Department of Homeland Security plans to amend its H-1B regulations “governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.”

Visa-Free Travel to United States Is Now Available for Israelis – The Department of Homeland Security announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program. Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s Electronic System for Travel Authorization.

USCIS Clarifies Guidance on L-1 Petitions for Intracompany Transferees Filed by Sole Proprietorships and on Blanket L Petitions – U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. The update also clarifies guidance regarding blanket L petitions.

DHS Announces Family Reunification Process for Ecuador – The Department of Homeland Security announced a new family reunification parole process for certain nationals of Ecuador that also allows for work authorization.

USCIS Reaches H-2B Cap for Temporary Nonagricultural Workers for First Half of FY 2024 – U.S. Citizenship and Immigration Services has received enough petitions to reach the cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2024. October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.

USCIS Provides Guidance on Interpretation of EB-5 Program Changes – U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022, specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.

Visa Bulletin for November Includes Reminder About Religious Workers Category Expiration – The Department of State’s Visa Bulletin for November 2023 includes a reminder that the non-minister special immigrant program expires on November 17, 2023.

Temporary Need Exemption Extended for Certain Guam and CNMI H-2B Workers – U.S. Citizenship and Immigration Services issued policy guidance reflecting the extension of the exemption from the temporary need requirement for petitions for temporary nonagricultural H-2B nonimmigrant workers on Guam and in the Commonwealth of the Northern Mariana Islands through December 30, 2024.

DHS Announces Relief for Cameroonian F-1 Nonimmigrant Students – Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status.

USCIS Launches New Online Change-of-Address Tool – U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.

DOS Publishes DV-2025 Instructions, List of Countries – On October 3, 2023, the Department of State published instructions and eligibility requirements for the Diversity Visa (DV) program for fiscal year 2025 (DV-2025). The online registration period for the DV-2025 diversity visa program concludes on Tuesday, November 7, 2023, at 12 noon ET.

DOS Restores Previous Version of Regulation Governing Public Charge Grounds of Visa Ineligibility – The Department of State announced that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.

U.S. to Resume Direct Repatriation of Venezuelans Without Authorization – The Department of Homeland Security announced that it “will resume direct repatriations of Venezuelan nationals who cross our border unlawfully and do not establish a legal basis to remain.”

DHS to Extend and Redesignate Cameroon for Temporary Protected Status – The Department of Homeland Security will extend and redesignate Cameroon for Temporary Protected Status for 18 months, beginning on December 8, 2023, and ending on June 7, 2025.

DOS Announces U.S. Passport Processing Times, Tips – The Department of State announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks, not including mailing time.

The News in Detail

  Executive Order on Artificial Intelligence Includes Immigration-Related Provisions

On October 30, 2023, President Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5 of the order, “Promoting Innovation and Competition,” includes various immigration-related provisions. For example, the order:

• Calls for the Secretaries of State and Homeland Security to streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments, for noncitizens who seek to travel to the United States to work on, study, or conduct research in artificial intelligence (AI) or other critical and emerging technologies; and facilitate continued availability of visa appointments in sufficient volume for applicants with expertise in AI or other critical and emerging technologies;
• Calls for the Secretary of State to consider initiating a rulemaking to establish new criteria to designate countries and skills on the Department of State’s exchange visitor skills list as it relates to the 2-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States;
• Calls for the Secretary of State to consider implementing a domestic visa renewal program to facilitate the ability of qualified applicants, including highly skilled talent in AI and critical and emerging technologies, to continue their work in the United States without unnecessary interruption;
• Calls for the Secretary of State to establish a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and to establish and increase connections with that talent to educate them on opportunities and resources for research and employment in the United States, including overseas educational components to inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications;
• Calls for the Secretary of Homeland Security to review and initiate any policy changes the Secretary determines necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability; and startup founders in AI and other critical and emerging technologies, using the International Entrepreneur Rule; and
• Calls for the Secretary of Homeland Security to continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies, and consider a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.

Details:

• Executive Order (Oct. 30, 2023).
• White House statement (Oct. 31, 2023).
• Making AI Work for the American People (talent search portal and other links).

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DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2024

On November 3, 2023, the Department of Homeland Security (DHS), in consultation with the Department of Labor, announced that it will make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024 via a temporary final rule. This is on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year. DHS said the supplemental visa allocation “will help address the need for seasonal or other temporary workers in areas where too few U.S. workers are available.”

The H-2B supplemental is expected to include an allocation of 20,000 visas to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, DHS said. In addition, 44,716 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. “The regulation would allocate these supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal and other temporary workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season,” DHS said.

Details:

• DHS news release (Nov. 3, 2023).

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Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension

U.S. Citizenship and Immigration Services (USCIS) announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents (EADs) while their renewal applications are pending. As of October 27, 2023, those who are eligible “will receive 180-day extensions in accordance with existing regulations, including those who have applied for or have received Temporary Protected Status or asylum,” USCIS said.

The agency noted that in May 2022, it announced a temporary final rule (TFR) that increased the automatic extension period for EADs available to certain EAD renewal applicants from up to 180 days to up to 540 days. This new change is not retroactive, USCIS said; “all previous up to 540-day automatic extensions will remain in place.”

USCIS said it is determining whether there is a need for a new regulatory action similar to the May 2022 TFR.

As announced in the 2022 TFR, automatic extensions of employment authorization and EAD validity will be the original up to 180-day period for eligible applicants who timely file a Form I-765 renewal application on or after October 27, 2023. For those who received an increased automatic extension period under the TFR, the increased automatic extension will end when they receive a final decision on their renewal application or when the up to 540-day period expires (counted from the expiration date of the employment authorization and/or their EAD), whichever comes earlier.

USCIS also recently published a Policy Manual update increasing the maximum EAD validity period to five years for initial and renewal applications approved on or after September 27, 2023, for the following categories:

• Certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, or granted asylum, and recipients of withholding of removal; and
• Certain noncitizens who must apply for employment authorization, including applicants for asylum and withholding of removal, adjustment of status, and suspension of deportation or cancellation of removal.

Details:

• USCIS alert (Oct. 27, 2023).
• USCIS Automatic Employment Authorization Document Extension page (updated Oct. 27, 2023).

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Texas Service Center Is New Filing Location for H-2A, H-2B, and Certain CNMI Petitions as of November 1

U.S. Citizenship and Immigration Services (USCIS) announced that as of November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.

USCIS said there will be a 60-day grace period for forms filed at the California Service Center (CSC) or Vermont Service Center (VSC) during which misdirected forms will not be rejected. After the 60-day grace period ends, USCIS will reject these petitions and applications if they are filed at the CSC or VSC. USCIS also will reject any such petitions and applications if they were received at the Texas Service Center before November 1, 2023.

The notice includes the addresses where each type of petition or application should be mailed.

Details:

• USCIS alert (Oct. 27, 2023).

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USCIS Updates Guidance on EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) announced on October 26, 2023, that it is “updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.”

USCIS said the update incorporates changes from the EB-5 Reform and Integrity Act of 2022 into the Policy Manual, building on an initial update that incorporated such changes on October 6, 2022.

Among other things, USCIS reorganized Part G, Volume 6, updated the chapter on adjudication of investor petitions for classification, and added new content on regional center designations and obligations, project applications, and direct and third-party promoters, including registration. USCIS said further updates to EB-5 guidance in the Policy Manual are forthcoming, and will include revisions to Chapter 5, Removal of Conditions.

USCIS said the new guidance “is effective immediately and is controlling, and supersedes any related prior guidance.”

Details:

• USCIS alert (Oct. 26, 2023).

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USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants

Effective October 24, 2023, U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance regarding the 2-year foreign residence requirement for the J nonimmigrant exchange visitor classification.

The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates. The update includes the ground and clarifies employment requirements.

Specifically, the update:

• Clarifies that USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.
• Explains that a travel day, where a fraction of the day is spent in the country of nationality or last residence, counts toward satisfaction of the 2-year foreign residence requirement.
• Provides that USCIS considers situations in which it is impossible for the benefit requestor to satisfy the 2-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in this situation.
• Clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement.

Feedback on this update can be emailed to USCIS at [email protected].

Details:

• USCIS alert (Oct. 24, 2023).
• USCIS Policy Alert, PA-2023-30 (Oct. 24, 2023).

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USCIS Allows Additional 30 Days for Comments on E-Verify NextGen and Revisions to E-Verify

U.S. Citizenship and Immigration Services (USCIS) is allowing 30 additional days for public comments on several information collection notices related to E-Verify.

USCIS is allowing until November 27, 2023, for public comments on E-Verify NextGen. The information collection notice was previously published in June, allowing for a 60-day public comment period. USCIS received six comments in connection with the 60-day notice.

E-Verify NextGen, I–9NG, “was developed as a demonstration project to further integrate the Form I-9, Employment Eligibility Verification, process with the E-Verify electronic employment eligibility confirmation process to create a more secure and less burdensome employment eligibility verification process overall for employees and employers,” USCIS said.

USCIS is allowing until November 24, 2023, for public comments on proposed revisions to the E-Verify program. That notice was previously published in June also, allowing for a 60-day public comment period. USCIS received two comments.

Details:

• USCIS notice (E-Verify NextGen), 88 Fed. Reg. 73610 (Oct. 26, 2023).
• USCIS notice (E-Verify), 88 Fed. Reg. 73351 (Oct. 25, 2023).

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Reminder to Employers: Use New I-9 Form as of November 1

The Citizenship and Immigration Services (CIS) Ombudsman reminded employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.

The updated Form I-9 reflects the option for eligible employers to verify employment eligibility remotely. The CIS Ombudsman said that all previous versions will no longer be accepted. “If you do not use the 8/01/23 edition of Form I-9, you may be subject to penalties,” the CIS Ombudsman warned.

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State Dept. Intends to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Applicants

The Department of State (DOS) intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and Budget for review. Currently, the State Department can only process visa applications at its embassies and consular posts abroad and does not offer a stateside option for visa issuance.

Although full details have not yet been released, according to reports, in its initial phase the stateside visa renewal program is expected to be limited to H-1B principal visa applicants (not dependents). There will be additional eligibility requirements for participation (for example, the applicant must be renewing a visa issued within a limited number of years before the renewal submission), and the program will be voluntary—applicants will still have the option of obtaining visas abroad through regular processing.

The pilot program is expected to be limited to nationals of countries whose visas are not subject to reciprocity fees. India will be eligible for participation in the pilot program, as there is no applicable reciprocity fee. These fees vary in amount and are meant to equalize the cost of a visa for each country’s nationals with the fees charged by that country to U.S. nationals seeking comparable visas. Because the fees vary and must be refunded if a visa cannot be issued, including them in the pilot program could have delayed the rollout.

The program is intended to help reduce consular delays, which were exacerbated by the COVID-19 pandemic and have continued in certain locations. The pilot program will test the operational capacity of the stateside renewal program. Availability is expected to be capped at 20,000 applicants. If successful, the program will expand to other employment-based visa categories following its initial launch, although full implementation is likely to take some time.

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DHS Plans to Amend H-1B Regulations Governing Specialty Occupation Workers

The Department of Homeland Security (DHS) plans to amend its H-1B regulations “governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” The notice of proposed rulemaking (NPRM), expected to be published in the Federal Register on October 23, 2023, would also “narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.” A 60-day public comment period starts following publication of the NPRM in the Federal Register.

Below is a non-exhaustive summary of highlights. DHS proposes to:

• Revise the regulatory definition and criteria for a “specialty occupation” and clarify that a position may allow a range of degrees if they have a direct relationship to the duties of the position;
• Clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment;
• Codify and clarify that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts;
• Require evidence of maintenance of status to be included with the petition if a beneficiary is seeking an extension or amendment of stay;
• Change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity;
• Provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B;
• Clarify the requirements regarding the requested employment start date on H-1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year;
• Select H-1B cap registrations by unique beneficiary rather than by registration;
• Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary;
• Clarify that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity; and
• Clarify that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.

Details:

• USCIS notice of proposed rulemaking (advance copy), 88 Fed. Reg. 72870 (Oct. 23, 2023).
• USCIS news release (Oct. 20, 2023).

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Visa-Free Travel to United States Is Now Available for Israelis

On October 19, 2023, the Department of Homeland Security (DHS) announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program (VWP). Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s (CBP) Electronic System for Travel Authorization (ESTA).

This authorization allows eligible Israelis to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. Israeli citizens and nationals with valid B-1/B-2 visas may continue to use them for business and tourist travel to the United States, DHS said.

DHS explained that eligible Israeli citizens and nationals must have a biometrically enabled passport book. Travelers who possess non-biometric, temporary, or emergency travel documents, or travel documents from a non-VWP designated country, are not eligible for travel under the VWP and may instead apply for a U.S. visa. ESTA applications may take up to 72 hours for processing. The ESTA application will be available in English now and in other languages by November 1, 2023, DHS said.

Details:

• DHS announcement (Oct. 19, 2023).
• CBP announcement (Oct. 19, 2023).
• ESTA Application, U.S. Customs and Border Protection.
• U.S. Visa Waiver Program.

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USCIS Clarifies Guidance on L-1 Petitions for Intracompany Transferees Filed by Sole Proprietorships and on Blanket L Petitions

On October 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner.

The USCIS guidance further clarifies that an L-1 petition where the owner and beneficiary are the same constitutes an impermissible self-petition. The update also clarifies guidance regarding blanket L petitions, noting that the failure to timely file an extension of the blanket petition does not trigger the three-year waiting period before another blanket petition may be filed.

Details:

• USCIS Policy Alert, PA-2023-29 (Oct. 20, 2023).
• USCIS announcement (Oct. 20, 2023).

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DHS Announces Family Reunification Process for Ecuador

On October 18, 2023, the Department of Homeland Security (DHS) announced a new family reunification parole process for certain nationals of Ecuador that also allows for work authorization. The new process is for certain nationals of Ecuador 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, Ecuadorian nationals and their immediate family members can be considered for parole on a case-by-case basis for up to three years while waiting to apply to become lawful permanent residents.

Individuals paroled into the United States under this process will generally be considered for parole for up to three years and will be eligible to request work authorization while they wait for their immigrant visa to become available, DHS said. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

Qualifying beneficiaries must be outside the United States; must meet all requirements, including screening and vetting and medical requirements; and must not have already received an immigrant visa.

Details:

• DHS news release (Oct. 18, 2023).

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USCIS Reaches H-2B Cap for Temporary Nonagricultural Workers for First Half of FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on October 13, 2023, that it has received enough petitions to reach the cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year (FY) 2024. October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.

USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap, including petitions for:

• Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.

Details:

• USCIS alert (Oct. 13, 2023).

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USCIS Provides Guidance on Interpretation of EB-5 Program Changes

U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.

USCIS said that because of the changes made by the RIA, investors filing petitions for classification “no longer need to sustain their investment throughout their conditional residence, which may be many years in the future and dependent on factors outside the investor’s control such as visa availability.” Instead, USCIS said:

[The Immigration and Nationality Act (INA)] now requires only that the investment must be expected to remain invested for at least two years, provided job creation requirements have been met. Although the statute does not explicitly specify when the two-year period under INA § 203(b)(5)(A)(i) begins, we interpret the start date as the date the requisite amount of qualifying investment is made. In other words, we will use the date the investment was contributed to the new commercial enterprise and placed at risk in accordance with applicable requirements, including being made available to the job-creating entity. If invested more than two years before filing the I-526 or I-526E petition, the investment should generally still be maintained at the time the I-526 or I-526E is properly filed so we can appropriately evaluate eligibility.

Because the statute does not explicitly specify whether it applies only to post-RIA investors or also to pre-RIA investors, USCIS said it interprets INA § 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center. USCIS “will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.” USCIS also said it “will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.”

Details:

• USCIS alert (Oct. 11, 2023).

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Visa Bulletin for November Includes Reminder About Religious Workers Category Expiration

The Department of State’s Visa Bulletin for November 2023 includes a reminder that the non-minister special immigrant program expires on November 17, 2023.

The bulletin states that no employment fourth preference Certain Religious Workers (SR) visas may be issued overseas, or final action taken on adjustment of status cases, after November 16, 2023. Visas issued before this date will only be issued with a validity date of November 16, 2023, and all individuals seeking admission as non-minister special immigrants must be admitted into the U.S. by November 16, 2023.

Details:

• Visa Bulletin, Dept. of State (Nov. 2023).

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Temporary Need Exemption Extended for Certain Guam and CNMI H-2B Workers

U.S. Citizenship and Immigration Services (USCIS) issued policy guidance reflecting the extension of the exemption from the temporary need requirement for petitions for temporary nonagricultural H-2B nonimmigrant workers on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) through December 30, 2024, as provided in the National Defense Authorization Act (NDAA) for fiscal year (FY) 2023.

USCIS explained that the temporary nonagricultural worker (H-2B) nonimmigrant visa classification applies to a noncitizen seeking to perform temporary nonagricultural labor or services in the United States when U.S. workers are not available. Previous NDAAs created and expanded on an exemption from the requirement that nonagricultural labor or services be temporary in nature for petitioners of certain H-2B workers on Guam and in the CNMI.

Details:

• USCIS Policy Alert, PA-2023-28 (Oct. 4, 2023).

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DHS Announces Relief for Cameroonian F-1 Nonimmigrant Students

The Department of Homeland Security (DHS) is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Cameroon, regardless of country of birth (or individuals having no nationality who last habitually resided in Cameroon), and who are experiencing severe economic hardship as a direct result of the current armed conflict and humanitarian crisis in Cameroon.

Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status. DHS said it will deem such an F-1 nonimmigrant student granted employment authorization to be engaged in a “full course of study” for the duration of the employment authorization if the nonimmigrant student satisfies the minimum course load requirement.

Details:

• DHS notice, 88 Fed. Reg. 69939 (Oct. 10, 2023).

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USCIS Launches New Online Change-of-Address Tool

U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.

USCIS said that with E-COA, most individuals with a USCIS online account can update their mailing and physical addresses with USCIS for pending applications, petitions, or requests in a single place, eliminating the need to update the address in multiple places; fill out a paper AR-11, Alien’s Change of Address Card; call the Contact Center; or visit a USCIS Field or Asylum Office. E-COA will automate address changes for almost all form types. The exceptions are listed at uscis.gov/addresschange.

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USCIS Reminds Employers to Start Using New Form I-9 by November 1 Deadline

U.S. Citizenship and Immigration Services (USCIS) reminded employers about the November 1, 2023, deadline for using the updated Form I-9, Employment Eligibility Verification with the 08/01/2023 edition date.

USCIS also noted that a revised Spanish edition of Form I-9 with an edition date of 08/01/2023 is available for use in Puerto Rico only and by other employers as a translation aid.

Details:

• USCIS notice (Oct. 5, 2023).

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DOS Publishes DV-2025 Instructions, List of Countries

On October 3, 2023, the Department of State (DOS) published instructions and eligibility requirements for the Diversity Visa (DV) program for fiscal year (FY) 2025 (DV-2025). The online registration period for the DV-2025 diversity visa program began on Wednesday, October 4, 2023, and concludes on Tuesday, November 7, 2023, at 12 noon ET.

For FY 2025, up to 55,000 DVs will be available. The Electronic Diversity Visa Entry Form (E-DV Entry Form or DS-5501) is available online at dvprogram.state.gov. DOS will not accept incomplete entries or entries sent by any other means. There is no cost to register for the DV program, but selectees who are scheduled for an interview must pay a visa application fee before making their formal visa application where a consular officer will determine whether they qualify for the visa. DOS determines selectees through a randomized computer drawing.

Except for the United Kingdom and its dependent territories, which are now eligible for the DV–2025 program, there were no changes in eligibility from the previous fiscal year. For DV–2025, natives of the following countries and areas 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, The People’s Republic of China (including mainland and Hong Kong born), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela, and Vietnam. Natives of Macau SAR and Taiwan are eligible.

Details:

• Diversity Visa Instructions for DV-2025, 88 Fed. Reg. 68261 (Oct. 3, 2023).

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DOS Restores Previous Version of Regulation Governing Public Charge Grounds of Visa Ineligibility

The Department of State (DOS) announced on October 6, 2023, that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.

On October 11, 2019, DOS published an interim final rule (IFR) that substantially revised the regulations governing the grounds. The IFR was enjoined by the District Court for the Southern District of New York on July 29, 2020, DOS explained. Since that time, the agency has used Foreign Affairs Manual (FAM) guidance that was in place before publication of the IFR.

“The IFR was intended to align with the standards then applied by the U.S. Department of Homeland Security (DHS) to determine inadmissibility on public charge grounds. In 2022, DHS published a new Final Rule. As such, the IFR no longer meets the policy aim of consistency with DHS standards. In reverting to regulatory text that was in place prior to the publication of the IFR, the Department is again more closely aligned with the current DHS standards,” DOS explained.

Details:

• DOS news release (Oct. 6, 2023).

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U.S. to Resume Direct Repatriation of Venezuelans Without Authorization

The Department of Homeland Security (DHS) announced on October 5, 2023, that it “will resume direct repatriations of Venezuelan nationals who cross our border unlawfully and do not establish a legal basis to remain.”

DHS said this announcement “follows a decision by authorities from Venezuela to accept the return of Venezuelan nationals, as well as high-level discussions yesterday in Mexico City between the United States, Mexico, Colombia, and Panama where Secretary of State Antony Blinken, Secretary of Homeland Security Alejandro N. Mayorkas, and Homeland Security Advisor Liz Sherwood-Randall discussed ongoing coordinated efforts to address irregular migration in the Western Hemisphere.”

Details:

• DHS press release (Oct. 5, 2023).

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DHS to Extend and Redesignate Cameroon for Temporary Protected Status

The Department of Homeland Security (DHS) will extend and redesignate Cameroon for Temporary Protected Status (TPS) for 18 months, beginning on December 8, 2023, and ending on June 7, 2025.

Existing TPS beneficiaries who wish to extend their status through June 7, 2025, must re-register during the 60-day re-registration period, which is expected to begin on October 10, 2023. The redesignation of Cameroon also allows additional Cameroonian nationals (and individuals having no nationality who last habitually resided in Cameroon) who have been continuously residing in the United States since October 5, 2023, to apply for TPS for the first time during the initial registration period, which is expected to begin on October 10, 2023.

DHS said, “It is important for re-registrants to timely re-register during the registration period and not to wait until their Employment Authorization Documents (EADs) expire, as delaying re-registration could result in gaps in their employment authorization documentation.”

Details:

• DHS Extension and Redesignation of Cameroon for Temporary Protected Status (advance copy).

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DOS Announces U.S. Passport Processing Times, Tips

The Department of State (DOS) announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks. Processing times do not include mailing time.

DOS said that between October 2022 and September 2023, DOS issued more than 24 million passport books and cards, the most in U.S. history. DOS encourages applicants to check the status of their passport application and sign up for updates via email.

DOS also released the following tips for U.S. passport applicants:

1. If you’re renewing your application, submit your most recent passport with your application. Sign and date Form DS-82.
2. Complete all sections of your form including entering your correct Social Security number. Do not leave anything blank. If you’re applying for the first time or with your child under age 16, wait to sign the form until you are instructed to do so. If you’re renewing by mail, sign and date the form on your own.
3. Closely follow the passport photo requirements.
4. Provide evidence of U.S. citizenship.
5. If your current name is not the same as the name on your most recent passport, include your name change document (such as marriage certificate, divorce decree, or court order).

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