FOR THE WEEK OF NOV. 7, 2022

Election Eve and Congress

• Immigration continues to be a key issue in the 2022 mid-term elections. The results of the election could determine the fate of immigration reform in the next Congress including, DACA, TPS, Afghan Adjustment, Farmworker legislation and other business-related immigration. We will provide an analysis following the election.

Accreditation Loss Affects OPT, H-1Bs and I-140s

• The U.S. Department of Education no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.
• USCIS will deny STEM OPT applications for those who obtained their degree from an ACICS school after August 19, 2022
• A degree issued by an ACICS school after August 19, 2022 will not qualify for the H-1B advanced degree exception and it will not qualify for an EB-2 I-140 petition.

Venezuelan Parole Program – Update

• The Administration announce a humanitarian parole program for Venezuelans wanting to enter the U.S. on Oct. 18, 2022. The goal was to provide a lawful channel for those applicants and deter illegal land border crossings.
• According to DHS, the initial data shows that there are now fewer illegal border crossings with new lawful entry program. According to DHS the attempted irregular entries of Venezuelans at the border is down to approximately 300 per day – down from 1,100 per day. As of Oct. 31, 2022, about 7,000 Venezuelans have received approval to travel to the United States. 

State estimates 20,000 fewer employment-based immigrant visas for FY2023

• FY2023 employment-based annual limit projected to be 197,000
• FY2022 employment-based annual limit was 281,507; of those, more than 220,000 were issued to applicants in the US

Interview waiver wait times added to State Dept site

• State updated its Visa Appointment Wait Times page to include estimated wait times for interview waiver appointments (sometimes called Drop Box appointments)
• Visitors (B-1/B-2); students (F,M,J); and workers (H,L,O,P,Q) may be eligible for interview waiver appointments
• The Visa Appointment Wait Times site also includes a link to an ‘at-a-glance’ Global Visa Wait Times site, which lists the wait times for visitor, student and work visa appointments for all embassies and consulates worldwide.

FOR THE WEEK OF NOV. 15, 2022

Immigrant and Employee Rights review employer ATS

• DOJ’s IER section confirmed it is evaluating electronic software systems based on complaints of discriminatory hiring practices
• IER has identified several software platforms with dropdown menus that resulted in employers inadvertently posting job advertisements with unlawful citizenship status restrictions.
• IER will hold the employer liable for these violations and not necessarily the software company.
• Employers should review their applicant tracking systems; inadvertent discrimination is still a potential violation

SAVE delays at 40-day average

• SAVE system is interagency platform that confirms an applicant’s immigration status Delays in system updates affect driver’s license and social security number applications.
• USCIS is working to reduce SAVE wait times to 10 days by March 2023

TPS extended for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal

• DHS is automatically extending the validity of TPS-related work authorization for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024, from the current expiration date of December 31, 2022.

 Tech layoffs trigger USCIS, DOL scrutiny

• USCIS and DOL are taking a closer look at H-1B and PERM filings in the wake of layoffs by tech industry companies.

FOR THE WEEK OF NOV. 22, 2022

Immigration Legislative Efforts Face Strong Headwinds

• The ability to get immigration policy reforms on the Omnibus this December is becoming more unlikely. There are intense efforts by groups across the immigration policy spectrum to do something for DACA, TPS, and Afghan beneficiaries. There are also increased efforts to strike a deal on the Farmworker Modernization Act.
• However, it’s unclear whether the Omnibus will actually even happen this calendar year; it may be pushed into the new Congress. The other big question is whether Republicans will let immigration reform move forward without significant border and asylum reforms.
• Key leaders have signaled that due to timing and scope, it is a real uphill battle to get any kind of immigration reform on the Omnibus.

Certain Afghan and Ukrainian Parolees are Employment Authorized Incident to Admission Status

• USCIS announced that Ukrainian and Afghan parolees with UHP or OAR listed as their class of admission on their unexpired I-94 may present it as a List A document as proof of identity and work authorization for I-9 purposes.
• Additionally, Ukrainian nationals with I-94s issued between Feb. 24, 2022, and Sept. 30, 2023, with DT as their class of admission may present it as a List A receipt that temporarily shows identity and work authorization for Form I-9 purposes.

Mexican nationals can pay more for a longer TN visa stamp

• The reciprocity schedule now allows Mexican applicants to pay $382 for a four-year TN visa stamp

FOR THE WEEK OF NOV. 29, 2022

Immigration Legislative Efforts Continue Despite Pushback

• It appears that the Dec. 16 deadline for the Omnibus spending bill will be extended through Dec. 22. This gives advocates additional time to push for immigration relief, such as DACA, TPS and Afghan Adjustment relief. 
• Pushback on these efforts is strong, and key Republicans are signaling that the Omnibus is not the vehicle for any immigration reform. These Republicans want border and asylum reform first. There is still a possibility the Omnibus gets pushed into the new Congress.

December Visa Bulletin Brings Retrogression for Worldwide EB-2

• The U.S. Department of State (DOS) has published the December 2022 bulletin, which reflects an increased demand across multiple categories and implements a world-wide cut-off for the EB-2 category.
• Due to increased demand and number use in the EB-1 category, combined with decreased visa number availability for FY-2023 in comparison to FY-2022, we may see the establishment of final action date and application date cut-offs for EB-1 China and India in the coming months.
• Within the EB-2 category, except for China and India, all countries are subject to a final action date of Nov. 1, 2022 and an application filing date of Dec. 1, 2022. EB-2 India faces a retrogression in its final action date with a cut-off of Oct. 8, 2011 and the final action date for EB-2 China remains the same as last month with a cut-off of June 8, 2019.
• EB-3 final action dates and application filing dates remain current on both final action and application filing date charts for all countries except China and India, which face cut-off dates in 2018 and 2012, respectively.

Certain Afghan and Ukrainian Parolees are Employment Authorized Incident to Admission Status and EAD Applications are Fee Exempt

• As of Nov. 21, 2022, the guidance applies to the following individuals, if their parole has not been terminated:
  • Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR”;
  • Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and
  • Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between 2/24/22 and 9/30/23, and indicates Ukraine as the country of citizenship on the document.
• Advocates and policy makers are trying to extend this guidance of ‘employment authorization incident to status’ to other countries and types of applications, such as TPS and Venezuelan Parole.

DOJ’s Immigrant and Employee Rights (IER) Division Focuses on Employer’s Screening and I-9 Processes

• Lady M, a New-York based bakery and retail confectionary, reaches a settlement with IER. For a two-year period, Lady M required green cards from new hires who indicated they were lawful permanent residents in Section 1 of their Form I-9. Lady M agreed to pay a civil penalty of less than $2,000. The company additionally agreed to review and revise its employment policies and submit them to IER approval and ensure all personnel related to hiring review and have access to the latest I-9 and E-Verify Handbook for Employers (M-274). Lady M also agreed to make sure to provide new hires with a list of acceptable I-9 documents and will ensure all of its hiring personnel undergo training.
• IER reaches a settlement with Aero Precision LLC, a firearm manufacturer located in Washington state, which maintained a hiring practice during four-month period that screened out asylees and refugees. Pursuant to the settlement, IER did not seek a civil penalty. Rather, Aero Precision agreed to review and revise its employment policies and submit them to IER approval, and ensure all personnel related to hiring have access to .
• Giant Food, a Pennsylvania-based grocery store chain with stores in various states, reaches a settlement with IER. For an 18 month period, Giant Food’s location in Royersford, PA required green cards from those new hires who indicated they were lawful permanent residents in Section 1 of their Form I-9, and its software onboarding program erroneously rejected I-9 documents. Giant Food agreed to pay back pay and penalties totaling $29,000. Giant Food agreed to review and revise its employment policies and submit them to IER approval, ensure all personnel related to hiring receive I-9 training, and update its onboarding software.
• IER reaches a settlement with Professional Maintenance Management (PMM), a Maryland-based janitorial services company. For a two-year period, PMM required certain I-9 documents from its hires who indicated they were lawful permanent residents, asylees or refugees in Section 1 of their Form I-9. While PMM denied IER’s charges, it agreed to pay a penalty of $300,000 in three installments. PMM agreed to review and revise its employment policies and submit them to IER approval, and ensure all personnel related to hiring receive I-9 training and register for email updates regarding TPS, DACA, E-Verify, and I-9s.