June 2023

‘Devastating’ Florida Law Imposes Wide-Ranging Restrictions, New Requirements for Employers

FL 1718, effective July 1, 2023, was signed into law by Gov. Ron DeSantis. The legislation specifies that certain driver licenses and permits issued by other states exclusively to “unauthorized immigrants” are not valid in Florida; requires certain hospitals to collect patient immigration status information on admission or registration forms; and requires the Department of Economic Opportunity to enter an order and require repayment of economic development incentives if the department finds or is notified that an employer has knowingly employed an unauthorized person without verifying the employment eligibility of such person, among other provisions.

The new law includes many provisions related to employers. For example, it:

• Requires an employer to verify a new employee’s employment eligibility within 3 business days after the first day the new employee begins working for pay;
• Requires public agencies to use the E-Verify system to verify a new employee’s employment eligibility;
• Requires private employers with more than 25 employees to use the E-Verify system to verify a new employee’s employment eligibility;
• Requires employers to certify the use of the E-Verify system on unemployment compensation or reemployment assistance system returns;
• Requires employers to use a certain form if the E-Verify system is unavailable;
• Requires employers to retain specified documentation for a certain number of years;
• Prohibits an employer from continuing to employ an unauthorized noncitizen after obtaining knowledge that a person is or has become unauthorized, with an exception;
• Authorizes specified persons or entities to request, and requires an employer to provide, copies of specified documentation;
• Requires a public agency to require in any contract that a contractor or subcontractor register with and use the E-Verify system;
• Prohibits a public agency, contractor, or subcontractor from entering into a contract unless each party to the contract registers with and uses the E-Verify system; and
• Requires the Florida Department of Economic Opportunity to impose fines against employers under certain circumstances.

The American Immigration Lawyers Association (AILA) noted that “while the full impact of FL 1718 on Florida residents is difficult to quantify, its impact on the state’s economy is likely to be devastating.” AILA cited a 2019 report by the Migration Policy Institute estimating that more than 700,000 undocumented individuals are in the Florida workforce and that almost one in four workers in the construction industry are undocumented. Similarly, AILA noted, a 2021 report by the New American Economy Research Fund estimated that approximately 42 percent of Florida’s farmworkers are undocumented.

The National Immigration Forum said the legislation “is likely to have a detrimental effect on Florida residents and institutions, including the state’s faith community, health care industry, and businesses.”

Details:

• FL 1718. https://m.flsenate.gov/Session/Bill/2023/1718/BillText/er/PDF
• AILA statement (May 22, 2023). https://www.aila.org/infonet/fl-1718-florida-anti-immigrant-legislation
• “Florida’s Immigration Enforcement Legislation: Five Key Concerns,” National Immigration Forum. https://immigrationforum.org/article/floridas-immigration-enforcement-legislation-five-key-concerns/
• Statement From Ron DeSantis. https://flgov.com/2023/05/10/governor-ron-desantis-signs-strongest-anti-illegal-immigration-legislation-in-the-country-to-combat-bidens-border-crisis/

State Dept. Delays Effective Date of Consular Fee Rule

The Department of State (DOS) is delaying until June 17, 2023, the effective date of its rule raising consular fees for most nonimmigrant visas and special visas, published on March 28, 2023. DOS said this was to “provide for a 60-day delay in the effective date after receipt of the final rule in the Congress.”

Under the final rule, most consular service fees will be raised, although the fee increases are smaller than those proposed in the notice of proposed rulemaking due to revised projections for fiscal year (FY) 2022-2024 demand, DOS said.

Below are the adjustments that DOS will implement under the final rule:

• The application processing fee for non-petition-based nonimmigrant visas (NIVs) (except the E category) will increase from $160 to $185.
• The application processing fee for H, L, O, P, Q, and R category NIVs will increase from $190 to $205.
• The processing fee for Border Crossing Cards for Mexican citizens aged 15 and over will increase from $160 to $185.
• The fee for E category NIVs will increase from $205 to $315.
• The fee for the exchange visitor waiver of the two-year residency requirement will stay at $120, instead of the proposed $510.

Details:

• DOS final rule, delay of the effective date, 88 Fed. Reg. 34084 (May 26, 2023). https://www.govinfo.gov/content/pkg/FR-2023-05-26/pdf/2023-11420.pdf
• DOS final rule, 88 Fed. Reg. 18243 (Mar. 28, 2023). https://www.govinfo.gov/content/pkg/FR-2023-03-28/pdf/2023-06290.pdf

OFLC Announces ETA 9089 Case Submission for PERM in FLAG, Requires New Application Form/Process as of June 1

On April 18, 2023, Sen. Robert Menendez (D-N.J.) released recommendations for managing migration and refugees in the Western Hemisphere. The Menendez Plan, which includes measures to address U.S. labor shortages and expand access to H-2 visas, emphasizes executive actions President Biden could take to circumvent gridlock in Congress.

Sen. Menendez said the United States’ current approach “is enforcement-driven, reactive, and overly focused on punitive policies to deter migrants once they arrive at our borders; however, the region’s challenges require a comprehensive U.S. approach that recognizes individual country conditions that drive irregular migration.” He proposed a four-pillar strategy:

1. Create new legal pathways and expand existing pathways to reduce pressure at the southwestern border. Sen. Menendez proposes various measures, such as creating a parole program for individuals who can fill positions facing a labor shortage as determined by the governors of U.S. states, both for people migrating to the United States and undocumented individuals already in the country; working with Congress to make new visas available to address U.S. labor shortages; expanding access to H-2 visas in Latin America and the Caribbean and enhancing labor protections in the United States, along with employer outreach related to these visas.
2. Increase resources at the border to process asylum seekers and remove people without legal claims to stay in the United States.
3. Expand humanitarian assistance and develop financing to better integrate migrants and refugees in countries across the Americas.
4. Elevate efforts to counter transnational criminal organizations involved in human trafficking and smuggling.

Details:

• Menendez Plan press release (Apr. 18, 2023). https://www.menendez.senate.gov/newsroom/press/menendez-unveils-new-plan-to-secure-our-borders-by-managing-migration-in-the-americas
• Menendez Plan. https://www.menendez.senate.gov/imo/media/doc/the_menendez_plan.pdf
• “Sen. Menendez Unveils Plan for Immigration Overhaul,” NBC News (Apr. 18, 2023). https://www.nbcnews.com/politics/congress/sen-bob-menendez-unveils-plan-immigration-overhaul-rcna80150

ICE Reminds SEVIS Users About Updated Visa Issuance Guidance and Fee Increase

U.S. Immigration and Customs Enforcement (ICE) issued a broadcast message to all Student and Exchange Visitor Information System (SEVIS) users to remind them about updated visa issuance guidance and a fee increase.

The message notes that in February 2023, the Department of State (DOS) provided updated guidance that consular officers can now issue an F or M student visa up to 365 days before an international student’s program start date. The message notes that students can only enter the United States 30 days before the program start date listed on their Form I-20: “Students who attempt to enter the United States more than 30 days before their program start date may be found inadmissible by U.S. Customs and Border Protection.” The message includes details on what students and school officials should confirm before a student arrives at a U.S. port of entry.

The message also reminded SEVIS users that the fee for student and exchange visitor visas would increase from $160 to $185 on May 30, 2023, but a separate rule from the Department of State delayed implementation of this fee increase to June 17, 2023.

Details:

• ICE Broadcast Message: “U.S. Department of State Provides Updated Visa Issuance Guidance,” No. 2305-01 (May 2, 2023). https://www.ice.gov/doclib/sevis/pdf/bcm2305-01.pdf
• “U.S. Department of State Guidance on Visa Issuance FAQ” (n.d.) https://www.ice.gov/doclib/sevis/pdf/VisaGuidance_FAQ.pdf
• DOS guidance (Feb. 21, 2023). https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html
• “Publication of Final Rule on Nonimmigrant Visa Fee Increases,” DOS press release (Mar. 28, 2023). https://www.state.gov/publication-of-final-rule-on-nonimmigrant-visa-fee-increases/

EOIR Announces 19 New Immigration Judges

On May 12, 2023, the Department of Justice’s Executive Office for Immigration Review (EOIR) announced the appointment of 19 immigration judges, including one assistant chief immigration judge, to immigration courts in Arizona, California, Illinois, Louisiana, Massachusetts, New York, and Texas.

Attorney General Merrick B. Garland appointed Rhana Ishimoto as an assistant chief immigration judge and the following individuals as immigration judges: Maria T. Baldini-Potermin, Vicenta I. Banuelos-Rodriguez, Patrick D. Barrett, Elisa C. Brasil, Yul-mi Cho, Roger H. Dinh, Colin P. Eichenberger, Gabrielle D. Jones, Hannah B. Kubica, Kalenna Lee, Katie G. Mullins, Angela Munro, Nicolas Orechwa, Adrian N. Roe, Lucero M. Saldana Mistry, Jacob J. Stender, Abdias E. Tida, and Jami L. Vigil.

Individuals interested in these positions are invited to sign up for job alerts that are sent when new immigration judge job opportunities become available.

Details:

• EOIR notice (includes biographical information on each appointee) (May 12, 2023). https://tinyurl.com/yskxjs7j

June Visa Bulletin Reports India Employment-Based Retrogressions

The Department of State’s (DOS) Visa Bulletin for June 2023 reports a retrogression for the India EB-5 category and a likely retrogression soon for the India EB-3 category:

Steady number use and high demand in the EB-3 category for India will most likely necessitate retrogression of the EB-3 final action date for India as early as next month to hold number use within the maximum allowed under the FY 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

As readers were informed was possible in Item F of the May 2023 Visa Bulletin, it has become necessary to retrogress the EB-5 final action date for India effective in June. India’s number use in the family and employment preference categories for FY 2023 is subject to prorating under INA § 202(e). Number use has been consistently robust throughout the fiscal year in the family and employment preference categories, and it has been determined that India is approaching its prorated limit for EB-5 numbers. Thus, applicants from India are subject to a final action date of 01APR17. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

Details:

• DOS Visa Bulletin for June 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-june-2023.html

CBP No Longer Requires Proof of Vaccination for Air Travelers

As has been recently reported, U.S. Customs and Border Patrol’s (CBP) Carrier Liaison Program announced on May 11, 2023, that under a Presidential Proclamation, the COVID-19 vaccination requirement for noncitizen nonimmigrant air travelers was terminated as of May 12, 2023.

The rescission took effect for flights departing to the United States from a foreign country on or after 12:01 am ET on May 12, 2023. Noncitizen nonimmigrant air passengers no longer must show proof of being fully vaccinated with an accepted COVID-19 vaccine to board a flight to the United States, CBP said.

Details:

• “Rescinding Requirement for Proof of Covid-19 Vaccination for All Airline or Other Aircraft Passengers Arriving into the United States From any Foreign Country,” CBP (May 11, 2023). https://www.aila.org/infonet/cbp-no-longer-requires-proof-covid-19-vaccination
• “A Proclamation on Revoking the Air Travel COVID-19 Vaccination Requirement,” White House (May 9, 2023). https://www.whitehouse.gov/briefing-room/presidential-actions/2023/05/09/a-proclamation-on-revoking-the-air-travel-covid-19-vaccination-requirement/

CDC Updates COVID-19 Vaccinations Requirements for Civil Surgeons

On May 12, 2023, the Centers for Disease Control and Prevention (CDC) updated guidance on its Immigrant, Refugee, and Migrant Health webpage on COVID-19 vaccination requirements for civil surgeons:

• The applicant must receive one dose of the COVID-19 vaccine if a dose is due at the time of the exam according to current CDC guidance. Additional doses are no longer required, and applicants do not have to postpone completion of the exam to complete the primary series of the COVID-19 vaccine.
• Applicants who have completed any approved primary COVID-19 series before the exam require no additional COVID-19 doses for immigration. Those who have not yet done so should receive a bivalent vaccine.
• Applicants who have received one or more doses but have not completed the primary series and are not yet due for the next dose in the series at the time of the exam should use the “Insufficient time interval between doses” blanket waiver.

Details:

• COVID-19 Vaccination Requirement, CDC (May 12, 2023). https://www.cdc.gov/immigrantrefugeehealth/civil-surgeons/vaccinations.html#covid-19-vaccination

CIS Ombudsman Releases Tips on Avoiding Delays for F-1 Students Seeking OPT

The Office of the Citizenship and Immigration Services (CIS) Ombudsman released tips on how F-1 students seeking Optional Practical Training (OPT) can avoid delays in processing Form I-765, Application for Employment Authorization. The tips include:

• Check USCIS’ website for updates before you submit Form I-765.
• Make sure Form I-20, Certification of Eligibility for Nonimmigrant Student Status, is signed, dated, and endorsed for employment authorization.
• Apply online.
• Submit Form I-765 within 30 days or 60 days of the Date Issued by the Designated School Official on the Form I-20.
• Submit a properly completed Form I-20 together with Form I-765 at the same time.
• Update your mailing address with both USCIS and the U.S. Postal Service (USPS)

Details:

• “How F-1 Students Seeking Optional Practical Training Can Avoid Form I-765 Delays,” CIS Ombudsman. https://www.dhs.gov/sites/default/files/2023-05/How%20F-1%20Students%20Seeking%20OPT%20Can%20Avoid%20Form%20I-765%20Delays.pdf

Klasko News

FIRM NEWS

Our 2023 Klasko Webinar Series has begun! Visit our website for more information and to register for our webinar series. Visit here!

RECENT SPEAKING ENGAGEMENTS

William A. Stock
On May 19^th, Bill Stock spoke at the AILA Religious Workers Interest Group and discussed creative options for pastors, rabbis, imams, and other religious workers in light of a recent policy change creating severe immigrant visa backlogs for the EB-4 visa category into which religious worker immigrants fall.

H. Ronald Klasko | Danial 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
On May 30^th, Elise presented at the 2023 NAFSA Annual Conference & Expo on a panel entitled Hot Topics in Advanced Employment-Based Immigration.

UPCOMING SPEAKING ENGAGEMENTS

Andrew J. Zeltner | Carolina Regales | Romina Gomez
On June 6^th, Drew, Carolina, and Romina will be speaking in the 2023 Klasko Webinar Series event on a panel titled What now? Post H-1B lottery Alternatives. Register here!

Anu Nair | Allie K. Dempsey | Nigel D. James
On June 8^th, Anu, Allie, and Nigel will be speaking in the 2023 Klasko Webinar Series event on a panel titled No Employer? No Problem: Self-Sponsored Options for the Extraordinary. Register here!

H. Ronald Klasko | Daniel B. Lundy | Alison Li
On June 13^th, Ron, Dan, and Alison Li will be speaking in the 2023 Klasko Webinar Series event discussing EB-5 Regional Centers. Register here!

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

Anu Nair | Karuna C. Simbeck | Alison Li
On June 15^th, Anu, Karuna, and Ali will be speaking in the 2023 Klasko Webinar Series event discussing EB-5 Investors. Register here!

William A. Stock
Bill will be speaking at the 2023 AILA Annual Conference on Immigration Law on the panel entitled Future Proofing Your Practice before It’s Too Late.

Elise A. Fialkowski
Elise will be speaking at the 2023 AILA Annual Conference on Immigration Law on the panel entitled Workshop: Deep Dive into Responding to L-1 RFEs.

H. Ronald Klasko
Ron will be speaking at the 2023 AILA Annual Conference on Immigration Law on the panel entitled Putting on the Gloves: Preparing for Federal District Court Litigation.

RANKINGS/AWARDS

H. Ronald Klasko | William A. Stock
Ron Klasko and Bill Stock were listed in the 2023 Lawdragon 100 Leading Immigration Lawyers.

H. Ronald Klasko | William A. Stock | Elise A. Fialkowski | Michele G. Madera
Ron Klasko, Bill Stock, Elise Fialkowski, and Michele Madera were listed in the 2023 Who’s Who Legal Corporate Immigration Legal Marketplace Analysis.

ICYMI: RECENT BLOG POSTS AND ALERTS

Annual EB-5 Integrity Fund Fee Due
In this client alert, Daniel Lundy warned the final date for existing regional centers to pay the EB-5 Integrity Fund fee was May 31, 2023.

PERM Program Changes: Well-Intended But Potential For Problems
In this article, Grace Waweru explains the new PERM form (ETA 9089) and other changes announced by the Department of Labor.

DHS Announces End Of Covid 19 I-9 Flexibilities
In this client alert, Candace Hill provides information on the DHS announcement on May 5, 2023, that the temporary I-9 flexibilities from the COVID-19 pandemic will end on July 31, 2023.

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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.