July 2023

State Dept. Clarifies India EB-3 Retrogression in July

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 oversubscribedfor 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.

Details:

• India EB-3 Retrogression, DOS notice (June 26, 2023). https://travel.state.gov/content/travel/en/News/visas-news/india-eb-3-retrogression.html
• Dept. 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

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 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.

Details:

• 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/

I-9 Verification Flexibilities Ending Soon

Employers will have an additional 30 days to comply with Form I-9 requirements after COVID-19 flexibilities sunset on July 31, 2023, according to the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE). These flexibilities were first announced in March 2020 due to the COVID-19 pandemic and subsequently extended several times. DHS encourages employers who have been using these temporary flexibilities “to plan ahead to ensure that all required physical inspection of identity and employment eligibility documents is completed” by August 30, 2023.

The flexibilities deferred the requirement that employers review employees’ identities and employment authorization documents in the employees’ physical presence, instead allowing that to occur remotely, with the expectation that physical inspection would occur within three business days after normal operations resumed. ICE said employers could continue to implement the flexibilities “until affected employees undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”

Under the flexibilities, employers could examine the employees’ documents remotely (e.g., over video link, fax, or email) and enter “COVID-19” as the reason for the physical examination delay in the Section 2 Additional Information field on the Form I-9 when physical examination took place in the future. Once the employees’ documents were physically examined, the employer would add “documents physically examined” with the date of examination to the Section 2 Additional Information field on the Form I-9, or in Section 3, as appropriate.

Details:

• “ICE Updates Form I-9 Requirement to Grant Employers More Time to Comply With Requirements,” ICE news release (May 4, 2023). https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply

DHS Reinstates, Extends TPS Designations for El Salvador, Honduras, Nepal, and Nicaragua

The Department of Homeland Security (DHS) has rescinded the Trump administration’s terminations of the temporary protected status (TPS) designations for El Salvador, Honduras, Nepal, and Nicaragua, and extended TPS for these countries for 18 months.

Upcoming Federal Register notices will explain the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register for TPS and renew their employment authorization documents (EADs). Once the notices are published, existing TPS beneficiaries under the four designations will be able to re-register to continue their TPS throughout the 18-month extension, DHS said. Those who arrived in the United States after the continuous residence dates for these designations are not eligible for TPS. Those dates are February 13, 2001 (El Salvador); December 30, 1998 (Honduras and Nicaragua); and June 24, 2015 (Nepal).

Below are details about the date ranges for the extension and re-registration period for each country:

• El Salvador. DHS is extending the designation of El Salvador from September 10, 2023, through March 9, 2025. The new extension allows approximately 239,000 current TPS beneficiaries to re-register to retain TPS through March 9, 2025. Existing TPS beneficiaries who wish to extend their status through that date must re-register during the 60-day re-registration period from July 12, 2023, through September 10, 2023.
• Honduras. DHS is extending the designation of Honduras for TPS from January 6, 2024, through July 5, 2025. The new extension allows approximately 76,000 existing TPS beneficiaries to re-register to retain TPS through July 5, 2025. Existing TPS beneficiaries who wish to extend their status through that date must re-register during the 60-day re-registration period from November 6, 2023, through January 5, 2024.
• Nepal. DHS is extending the designation of Nepal for TPS from December 25, 2023, through June 24, 2025. The new extension allows approximately 14,500 existing TPS beneficiaries to re-register to retain TPS through June 24, 2025. Existing TPS beneficiaries who wish to extend their status through that date must re-register during the 60-day re-registration period from October 24, 2023, through December 23, 2023.
• Nicaragua. DHS is extending the designation of Nicaragua for TPS January 6, 2024, through July 5, 2025. The new extension allows approximately 4,000 current TPS beneficiaries to re-register to retain TPS through July 5, 2025. Existing TPS beneficiaries who wish to extend their status through that date must re-register during the 60-day re-registration period from November 6, 2023, through January 5, 2024.

Details:

• DHS news release (June 13, 2023). https://www.dhs.gov/news/2023/06/13/dhs-rescinds-prior-administrations-termination-temporary-protected-status

USCIS Provides Guidance on EADs Based on Compelling Circumstances

U.S. Citizenship and Immigration Services (USCIS) has released policy guidance on the eligibility criteria for initial and renewal applications for an Employment Authorization Document (EAD) in compelling circumstances. An applicant must meet the following eligibility requirements to be eligible for an initial EAD based on compelling circumstances:

• The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the first, second, or third employment-based preference category;
• The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or an authorized grace period when they file the Form I-765, Application for Employment Authorization;
• The principal applicant has not filed an adjustment of status application;
• An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the Department of State’s Visa Bulletin in effect when they file Form I-765;
• The applicant and dependents provide biometrics as required;
• The applicant and dependents have not been convicted of a felony or two or more misdemeanors; and
• USCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

The guidance provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer. The guidance also provides details on evidence an applicant could submit to demonstrate one of these compelling circumstances.

Details:

• USCIS alert, June 14, 2023. https://www.uscis.gov/newsroom/alerts/uscis-provides-guidance-on-employment-authorization-documents-based-on-compelling-circumstances

Premium Processing Expanded for Nonimmigrants Seeking a Change to F, M, J Status

U.S. Citizenship and Immigration Services (USCIS) is expanding premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, and seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. Online filing of Form I-907, Request for Premium Processing Service, will also be available for these applicants, USCIS said. This phase of premium processing service is only available for change-of-status requests. Premium processing is not available for individuals seeking an extension of stay in M-1 or M-2 status.

The premium processing expansion for certain Form I-539 applicants will occur in phases, the agency said. Nonimmigrants requesting premium processing should not file before these dates:

• Beginning June 13, USCIS now accepts Form I-907 requests, filed via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who have a pending Form I-539.
• Beginning June 26, USCIS will accept Form I-907 requests, filed either via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with Form I-539.

Applicants must submit Form I-907 the same way they submit Form I-539. For example, those who mailed a paper Form I-539 to USCIS must mail a paper Form I-907; those who submitted Form I-539 online must submit Form I-907 online. Also, applicants must submit their biometrics before premium processing can begin for these specific categories. USCIS said it may reject an applicant’s Form I-907 and/or Form I-539 if submitted with another benefit request, including multiple Forms I-907 requests filed together.

Details:

• USCIS alert, June 12, 2023. https://www.uscis.gov/newsroom/alerts/uscis-expands-premium-processing-for-applicants-seeking-to-change-into-f-m-or-j-nonimmigrant-status

USCIS Updates Policy on Its Role in Adjudicating Waivers and Change-of-Status for J Nonimmigrant Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) has updated policy guidance regarding the nonimmigrant exchange visitor (J) visa classification, including USCIS’s role in the adjudication of waivers of the two-year foreign residence requirement and change-of-status requests. The guidance:

• Provides general information about the exchange visitor (J) visa classification and explains USCIS’s role in adjudicating change-of-status requests and applications for employment authorization for J-2 family members.
• Explains the INA § 212(e) foreign residence requirement and provides information about USCIS’s adjudication of available waivers, including for foreign medical graduates.

Details:

• USCIS Policy Alert, PA-2023-17 (June 8, 2023). https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230608-ExchangeVisitors.pdf

ICE Online Change-of-Address Tool Is Fully Operational

U.S. Immigration and Customs Enforcement (ICE)’s online change-of-address form for noncitizens is now fully operational, ICE announced on June 13, 2023. The new system gives noncitizens the option to update their information online instead of doing so by phone or in person. ICE said it “will enable noncitizens to comply with their immigration obligations more easily and improve the accuracy of address information reported to ICE by utilizing address autofill to ensure U.S. Postal Service standardization.”

After successfully entering a valid mailing address, if the noncitizen is in removal proceedings, the online form shows the noncitizen information on how to also change their address with the immigration court as required, using the Executive Office for Immigration Review’s (EOIR) Form EOIR-33, Change of Address/Contact Information, which may be submitted by mail, in person at the immigration court, or online through EOIR’s Respondent Access. The EOIR-33 is available in English, Spanish, Chinese, Haitian Creole, Portuguese, and Punjabi.

ICE’s news release includes additional details about how the system processes requests and handles aspects like Notices to Appear and noncitizens in removal proceedings.

Details:

• ICE news release (June 13, 2023). https://www.ice.gov/news/releases/ice-online-change-address-tool-noncitizens-fully-operational

July Visa Bulletin Shows EB-3 Final Action Date Retrogressions for Multiple Countries

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.

Details:

• Dept. 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

Lockbox Filing Location Webpage Expanded to Include Service Center Filing Location Updates

U.S. Citizenship and Immigration Services (USCIS) has updated the Lockbox Filing Location Updates page on its website to include service center filing location updates.

USCIS explained that it sometimes changes or adjusts filing locations among its service centers or lockbox facilities “to balance our incoming workload for timely processing. We may also refine filing addresses to improve internal processes at our service centers or lockbox facilities. Please note that the new filing location may not be where your case is adjudicated.”

To receive updates on these filing location changes, users can subscribe to the “Lockbox and Service Center Filing Location Updates” GovDelivery distribution list to receive an email each time USCIS updates a filing location.

Details:

• USCIS alert, June 6, 2023. https://www.uscis.gov/newsroom/alerts/lockbox-filing-location-updates-webpage-expanded-to-include-service-center-filing-location-updates

Passport, Visa Issuances Surge, State Dept. Takes ‘Extraordinary Measures’: House Hearing

At a hearing on June 7, 2023, of the House Subcommittee on Oversight and Accountability, Rena Bitter, Assistant Secretary of State for the Bureau of Consular Affairs, said the Bureau and the Department of State have taken “extraordinary measures” to meet current U.S. passport and visa demand. Those measures include authorizing 30,000 to 40,000 overtime hours per month; moving personnel to Washington, DC; and hiring more adjudicative staff. The Bureau is requesting almost $100 million to fill pandemic-related vacancies and add nearly 300 new positions, she said.

Ms. Bitter said current routine passport processing time is 10 to 13 weeks. The Bureau also is “experiencing pent-up demand for U.S. visas resulting from the near shutdown of international travel” during the pandemic.

Forty-six percent of Americans have passports, up from 30 percent in 2008, she said. On the inbound travel side, she noted, in addition to the citizens of more than 40 visa waiver countries, potential travelers to the United States hold more than 49 million valid visitor visas and border crossing cards. “In fact, more foreign visitors have the ability to travel to the United States today than at any time in our history,” she noted. In fiscal year 2022, the Bureau issued a record 22 million passport books and cards. She also noted that the Next Generation Passport, which was rolled out in 2022, “uses new technologies to produce a more robust passport with enhanced security features, such as a polycarbonate data page, laser-engraved personalization, and updated artwork.”

Details:

• Written statement of Rena Bitter (June 7, 2023). https://docs.house.gov/meetings/FA/FA17/20230607/116028/HHRG-118-FA17-Wstate-BitterR-20230607.pdf

Klasko News

FIRM NEWS

You can now watch the full 2023 Klasko Webinar Series! Watch all recordings here.

IN THE NEWS

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William A. Stock
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Michele G. Madera
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Andrew J. Zeltner | Carolina Regales | Romina Gomez
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Anu Nair | Allie K. Dempsey | Nigel D. James
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H. Ronald Klasko | Daniel B. Lundy | Alison Li
On June 13^th, Ron, Dan, and Alison Li spoke in the 2023 Klasko Webinar Series event discussing EB-5 Regional Centers. View the webinar recording here!

William A. Stock | Michele G. Madera | Natalia Gouz | Romina Gomez
On June 14^th Bill, Michele, Natalia, and Romina spoke in the 2023 Klasko Webinar Series event on a panel titled Summer Sizzler: PERM Hot Topics. View the webinar recording here!

Anu Nair | Karuna C. Simbeck | Alison Li
On June 15^th, Anu, Karuna, and Ali spoke in the 2023 Klasko Webinar Series event discussing EB-5 Investors. View the webinar recording!

William A. Stock
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H. Ronald Klasko
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Anu Nair
Anu spoke at the 2023 AILA Annual Conference on Immigration Law on a panel entitled O-1A and O-1B- Extraordinary Ability and Entertainers.

H. Ronald Klasko | Daniel B. Lundy
On May 21^st, Ron and Dan spoke at the 2023 IIUSA EB-5 Industry Forum on the panel entitled EB-5 in the Courts: A Look at Current & Recent Litigation.

Elise A. Fialkowski | Maria M. Mihaylova | Lana Spaic
Elise, Maria, and Lana were the first to present in the 2023 Klasko Webinar Series. They discussed the latest corporate immigration updates on the effects of a recession for non-immigrant workers, processing times, current F-1 trends, consular updates, and more. View the webinar recording here.

Elise A. Fialkowski
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ICYMI: RECENT BLOG POSTS AND ALERTS

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.