International Law and Immigration

Immigration Update: October/November 2022

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A monthly publication of the International Law and Immigration Section of the California Lawyers Association.

Editor-in-Chief, Payal Sinha 

*Contributions by Radhika Balaji

US Citizenship and Immigration Service (USCIS) no longer requires Petitioner/Employers to submit duplicate copy of Form I-129 or supporting documents*

On August 11, 2022, USCIS announced that Petitioners are no longer required to submit duplicate copies of the Form I-129 and its supporting documents. The duplicate copies were required to be forwarded to the Kentucky Consular Center which would then send it to the Petition Information Management System (PIMS) for access by US Consular Officers around the world. To avoid delays in the consular process and with enhanced electronic capabilities with the Department of State, duplicate copies are no longer required.

Equal Pay Transparency (EPT) Laws will impact Permanent Labor Certification Process (PERM) Job Postings*

US employers hire foreign workers on a permanent basis through the PERM program which requires employers to conduct a test of the labor market. The PERM regulations at 20 CFR§ 656 lays out the requirements for recruitment activities which do not require the employer to advertise salary ranges. The EPT laws which require employers to disclose pay ranges on job postings will potentially impact the PERM recruitment process.

The EPT laws have been passed in several states and localities and are not uniform. New York’s EPT rules will go into effect on November 1, 2022, with California and Rhode Island going into effect on January 1, 2023. Other states that already have EPT rules in effect are Colorado, Connecticut, Nevada, Ohio, New Jersey and Maryland.

Passport entry stamps are no longer issued by Customs and Border Patrol (CBP), instead arrival/departure record can be obtained online*

In an effort to streamline the entry process for foreign nationals arriving in the US, CBP will no longer be issuing entry stamps on passports. Instead, an electronic record of admission, Form I-94 will be in place as evidence of entry and period of admission. The I-94 serves as proof of lawful status and also as verification of employment eligibility through the I-9 process. Travelers are advised to obtain their electronic I-94 from the CBP website.

US Citizenship and Immigration Service (USCIS) has extended the flexibility for responding to the Agency’s request for evidence*

In an effort to assist applicants, petitioners, and requestors of certain immigration benefits during the COVID-19 pandemic, USCIS allowed certain flexibilities that permitted responses received within 60 calendar days after the due date set forth in certain notices as timely filed. On October 24, 2022, the flexibility was extended for notices received between March 1, 2020 and January 24, 2023, inclusive. The announcement can be found here.

The Department of State (DOS) updates that Worldwide Visa Operations have significantly improved since the COVID-19 pandemic

The COVID-19 pandemic resulted in closure of the US Consular posts abroad which resulted in significant delays in issuing visas. On October 21, 2022, DOS announced that they anticipate reaching pre-pandemic processing levels 2023, as they doubled their hiring of US Foreign Service personnel to increase efficiency in visa processing. The DOS also updated the efforts they took during the pandemic recovery phase and their success stories that followed here.

US Citizenship and Immigration Service (USCIS) extends temporary waiver of “60-Day Rule” for Medical Examination Report (Form I-693) to March 31, 2023*

A Medical Examination report is required for certain types of immigration benefits and prior to December 9, 2021, the report should have been signed by a civil surgeon no more than 60 days before the filing of the immigration benefit. USCIS had waived the 60 days rule to help applicants experiencing delays in processing their medical examination reports during the COVID-19 pandemic. On September 29, 2022, USCIS announced an extension of this waiver until March 31, 2023.

Immigration and Customs Enforcement (ICE) announced extension of Employment Eligibility Verification (I-9) flexibilities until July 31, 2023*

On October 11, ICE announced an extension of the Employment Eligibility Verification (Form I-9) flexibilities until July 31, 2023, due to the COVID-19 pandemic safety precautions. The Department of Homeland Security (DHS) noted that it will exercise discretion to defer the physical presence requirements associated with Form I-9 under Section 274A of the Immigration and Nationality Act (INA), can be found here.

US Citizenship and Immigration Service (USCIS) announces automatic extension of Permanent Residency Card Validity to 24 Months for renewals* 

On September 29, 2022, USCIS announced that it will automatically extend the validity of Permanent Resident cards (Green cards) to 24 months for applicants who properly filed their application to renew their green cards (using Form I-90), in an effort to help applicants who experience long processing times. The automatic extension was issued for 12 months previously and with this new announcement, USCIS started issuing amended receipt notices with 24 months validity for pending I-90 renewal applications. These receipt notices with an expired green card will serve as proof of continued status.

US Citizenship and Immigration Service (USCIS) celebrated Constitution Day and Citizenship Day by welcoming 19,000 New U.S. Citizens*

As part of Constitution week, the nation observes Citizenship Day and this year between September 17-23, 2022, the USCIS celebrated Constitution Day and Citizenship Day by welcoming more than 19,000 new citizens in over 235 naturalization ceremonies across the nation. USCIS has been undertaking numerous activities aimed at empowering immigrants and educating them about their rights and obligations as a US Citizen to support implementation of President Biden’s Executive Order 14012 (Restoring Faith in our Legal System and Strengthening Integration and Inclusion Efforts for New Americans).

US Citizenship and Immigration Service (USCIS) to implement the third phase of Premium Processing for certain previously filed I-140 petitions under the EB-1 and EB-2 categories*

In an effort to reduce backlogs and provide relief to work permit holders, USCIS has announced in March 2022 that it will expand premium processing to a variety of benefit applications. Phase 1 was implemented in May 2022 and Phase II was implemented in July 2022. Beginning September 15, 2022, USCIS started implementing Phase III by accepting premium processing for (i)  E13 multinational executive and manager petitions received on or before January 1, 2022, and (ii)  E21 National Interest Waiver (NIW) petitions received on or before Feb 1, 2022. USCIS noted that a new (initial) premium processing request with the I-140 will not be accepted at this time.

US Citizenship and Immigration Service (USCIS) has used nearly all available Employment-Based Immigrant Visas for FY2022*

On September 6, 2022, USCIS filed a Court Declaration indicating that the agency has used nearly all available employment-based (EB) immigrant visas for this fiscal year (ending September 30, 2022) and will have exhausted the supply of 281,507 employment-based immigrant visas by the end of the month. This is a significant accomplishment for the agency because it approved approximately twice the annual allocation of employment-based immigrant visas in fiscal year 2022 (FY22). USCIS stated in the declaration that “as of September 6, 2022, there are no visas remaining for applicants from any country of chargeability in EB1 (employment-based first-preference) or EB2” (employment-based second-preference). As a result, the priority dates for EB-2 preference and EB-3 category for India  have been in retrogression due to high demands. There has also been a retrogression for the EB-5 unreserved category for China-mainland born applicants.

Department of Homeland Security (DHS) published Public Charge Rule*

On September 9, 2022, DHS issued its final rule to be published in its federal register that provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. This rule mirrors the 1999 Interim Field Guidance in many aspects and provides additional clarity on what types of benefits will likely classify a non-citizen to become a public charge. This rule is set to go into effect on December 23, 2022. 

Department of Homeland Security (DHS) Extends and Redesignates Temporary Protected Status (TPS) for Burma

On September 26, 2022, DHS announced an extension of TPS for Burma for an additional 18 months, from November 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning. In addition, DHS announced a redesignation of Burma for TPS, allowing Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the U.S. as of Sept. 25, 2022, to be eligible for TPS.

New System for Submitting Executive Office for Immigration Review (EOIR) Freedom of Information Act (FOIA) Requests

On September 26, the EOIR announced that, to more quickly and effectively respond to Freedom of Information Act (FOIA) and Privacy Act (PA) requests, requestors are strongly encouraged to submit FOIA and PA requests through EOIR’s Public Access Link (PAL). Effective December 1, 2022, EOIR will no longer accept FOIA or PA requests by email. To submit a FOIA or PA request, requesters may visit PAL to register for an account.

US Citizenship and Immigration Service (USCIS) released NEW Form I-765, Application for Employment Authorization and Form I-589, Application for Asylum and Withholding of Removal

USCIS released new editions of two forms, Form I-765, the Application for Employment Authorization, and Form I-589, Application for Asylum and Withholding of Removal. Starting November 7, 2022, USCIS will only accept the new, 07/26/22 editions of these two forms.

US Citizenship and Immigration Service (USCIS) announces an Online Filing for Affirmative Asylum Applications

On November 11, USCIS announced that Form I-589, Application for Asylum and for Withholding of Removal, is available to file online for certain affirmative asylum applicants. USCIS continues to accept the latest paper version of this form by mail.

Affirmative asylum applicants may not file an online Form I-589 if they: (i) Are in proceedings in immigration court or before the Board of Immigration Appeals; (ii) Are an unaccompanied alien child as defined in 6 U.S.C. § 279(g) and are in removal proceedings; (iii) Are among the categories of applicants who must currently file by mail with the Asylum Vetting Center as outlined in the Special Instructions section of our Form I-589 webpage; or (iv) Already submitted a Form I-589, which is still pending with USCIS.

Department of Homeland Security (DHS) begins Limited Implementation of Deferred Action for Childhood Arrivals (DACA) under Final Rule

On October 31, 2022, the DHS’s final rule (PDF) to preserve and fortify DACA went into effect, which means that DACA is now based on a formal regulation, thereby preserving and fortifying the program while the program remains the subject of litigation in court. 

On October 5, the US Court of Appeals for the Fifth Circuit affirmed a July 2021 decision of the U.S. District Court for the Southern District of Texas declaring the 2012 DACA policy unlawful. The Fifth Circuit, however, preserved the partial stay issued by the district court in July 2021 and remanded the case back to the district court for further proceedings regarding the new DACA rule. On October 14, the US District Court for the Southern District of Texas issued an order extending its injunction and partial stay of the DACA final rule.

Current grants of DACA and related Employment Authorization Documents are valid, and USCIS will accept and process renewal DACA requests and accompanying requests for employment authorization under the final rule.

US Citizenship and Immigration Service (USCIS) implements New Process for Venezuelans

On October 12, the Department of Homeland Security (DHS) announced a new process for Venezuelans. This new process will provide a lawful and streamlined way for nationals of Venezuela who are outside the US and lacking US entry documents to come to the US. Through a fully online process, individuals can be considered, on a case-by-case basis, for advance authorization to travel to the US and seek a temporary period of parole for up to two years, provided that they: (i) Have a supporter in the US who will provide financial and other support; (ii) Undergo and clear robust security vetting; (iii) Meet other eligibility criteria; and (iv)Warrant a favorable exercise of discretion.

Department of Homeland Security (DHS) designates Ethiopia for Temporary Protected Status (TPS) for 18 Months

On October 21, 2022, DHS announced the designation of Ethiopia for TPS for 18 months, for the first time. Only individuals who are already residing in the United States as of October 20, 2022 will be eligible for TPS. Ethiopia’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

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