March 2023

Biden Administration Proposes Controversial Rule on ‘Temporary’ Measures to Limit Asylum at Southwest Border

The Department of State’s Visa Bulletin for January 2019 shows significant progress in the EB-1 category for all chargeability areas, as well as in the EB-3 and Other Workers India categories. Other priority dates remain Current or backlogged

The Biden administration issued a new proposed rule that it called “temporary,” which introduces a “rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” The administration said the rule would deter migrants from relying on human smuggling networks, protect against extreme overcrowding in border facilities, and help to ensure that the processing of migrants seeking protection in the United States “is done in an effective, humane, and efficient manner.”

The administration said the proposed rule was being issued in advance of the expected termination of the Centers for Disease Control and Prevention’s (CDC) Title 42 public health order related to the COVID-19 pandemic and a consequent potential surge of migration into the United States via the southwest border. The CDC is expected to terminate its public health order on May 11, 2023, and the administration anticipates returning at that time to processing all noncitizens under Title 8 immigration authorities once Title 42 is terminated.

The proposed rule’s executive summary notes that U.S. officials’ encounters with noncitizens attempting to cross the southwest border into the United States without authorization “have reached an all-time high” even with the Title 42 public health order in place, “driven in large part by an unprecedented exodus of migrants from countries such as Colombia, Cuba, Ecuador, Nicaragua, Peru, and Venezuela.” The summary provides as an example that during a 30-day period ending December 24, 2022, the total daily encounters along the southwest border “consistently fluctuated between approximately 7,100 and 9,700 per day, averaging approximately 8,500 per day, with encounters exceeding 9,000 per day on 12 different occasions during this 30-day stretch.”

A Biden administration official reportedly said the new regulation constituted “temporary measures” and was done “out of necessity.” An administration statement from the Departments of Homeland Security and Justice lamented “the absence of congressional action to update a very broken, outdated immigration system.”

Reaction. Advocates objected to the new regulation. The American Immigration Lawyers Association (AILA) said the “transit ban” is “unworkable and a violation of U.S. asylum law. In a letter to President Biden last month, AILA President Jeremy McKinney and Executive Director Benjamin Johnson urged him to reconsider. They pointed to President Biden’s promise made during his presidential campaign to safeguard America’s commitment to asylum protection. Among other things, Mr. McKinney noted that “the countries through which people are fleeing are not ‘safe third countries’ by any stretch of the imagination, according to the U.S. State Department’s own reporting.” Mr. Johnson said, “This regulation is a clear violation of the rights of migrants under U.S. law to seek protection from persecution, regardless of how they enter the United States. The Biden Administration claims asylum will still be available under this regulation, but the so-called ‘rebuttable presumptions’ they propose will not provide sufficient opportunity for people in dire need to apply. It is absurd to expect asylum applicants who rarely have legal assistance to be able to rebut the presumptive bar set by this new rule and qualify for asylum protection.”

Comments on the proposed rule must be submitted by March 27, 2023.

Details:

• “Circumvention of Lawful Pathways,” DHS/DOJ Proposed Rule, 88 Fed. Reg. 11704 (Feb. 23, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-23/pdf/2023-03718.pdf
• “DHS and DOJ Propose Rule to Incentivize Lawful Migration Processes,” DHS, Feb. 21, 2023. https://www.dhs.gov/news/2023/02/21/dhs-and-doj-propose-rule-incentivize-lawful-migration-processes
• “Biden Administration Rolls Out New Asylum Restrictions Mirroring Trump-Era Policy,” CNN, Feb. 21, 2023. https://www.cnn.com/2023/02/21/politics/asylum-policy-biden-administration/index.html
• “AILA Condemns Biden Administration’s Push to Use ‘Transit Ban’ Against Vulnerable Asylum Seekers,” Press Release, American Immigration Lawyers Association, Feb. 21, 2023. https://www.aila.org/advo-media/press-releases/2023/aila-condemns-biden-administrations-push
• AILA letter to President Biden, Jan. 17, 2023. https://www.aila.org/advo-media/aila-correspondence/2023/letter-to-president-biden-regarding-the-proposed

USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions

The partial federal government shutdown that began at 12:01 a.m. on Saturday, December 22, 2018, continues

The partial federal government shutdown that began at 12:01 a.m. on Saturday, December 22, 2018, continues

U.S. Citizenship and Immigration Services (USCIS) has released policy guidance to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are authorized to work under the SSR provisions. The guidance applies to all pending and future applications for SSR employment authorization as of February 22, 2023, the date the guidance was published.

The update clarifies that in cases of severe economic hardship due to emergent circumstances, USCIS may grant off-campus SSR employment authorization to an F-1 nonimmigrant student for the duration of the Federal Register notice validity period, which is typically 18 months. The employment authorization may not extend past the student’s academic program end date.

USCIS said that emergent circumstances are “events that affect F-1 nonimmigrant students from a particular region and create severe economic hardship. These events may include, but are not limited to, natural disasters, financial crises, and military conflicts.”

Details:

• “Special Student Relief for F-1 Nonimmigrant Students,” USCIS Policy Alert (PA-2023-03), Feb. 22, 2023. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20230222-SpecialStudentRelief.pdf
• USCIS notice, Feb. 22, 2023. https://www.uscis.gov/newsroom/alerts/uscis-issues-clarifying-guidance-for-individuals-authorized-to-work-under-special-student-relief
• USCIS Policy Manual. https://www.uscis.gov/policy-manual

F and M Student Visas Can Be Issued Up To a Year in Advance, State Dept. Says

The Department of State (DOS) announced that F and M student visas for new students now can be issued up to 365 days before the start date for a course of study. However, the student cannot enter the United States on a student visa more than 30 days before the start date.

F and M student visas for continuing students may be issued at any time, DOS said, as long as the student is currently enrolled at a Student and Exchange Visitor Program-approved school or institution and in the Student and Exchange Visitor Information System. Continuing students may enter the United States at any time before classes start.

Details:

• Student Visa page, DOS. https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html
• DOS tweet, Feb. 21, 2023. https://twitter.com/TravelGov/status/1628095602931138564

DHS Extends Comment Period for Fee Rule; USCIS Releases Fact Sheet on Fee Waivers for Naturalization Applications

The Department of Homeland Security (DHS) has extended by five days, to March 13, 2023, the comment period for a rule published on January 4, 2023, proposing to change the fee schedule for certain immigration benefits. DHS said the extension was due to technical problems on the General Services Administration’s eRulemaking Portal that prevented some commenters from submitting their comments and supporting documentation.

Separately, U.S. Citizenship and Immigration Services (USCIS) released a fact sheet on requests for fee waivers for Form N-400, Application for Naturalization. The fact sheet includes a checklist of grounds that may be used as a basis for the fee waiver and information about qualifying for a reduced fee if the applicant does not qualify for a waiver.

Details:

• DHS extension of the comment period, 88 Fed. Reg. 11825 (Feb. 24, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-24/pdf/2023-03906.pdf
• Proposed Fee Rule Frequently Asked Questions, DHS, updated Feb. 23, 2023. https://www.uscis.gov/proposed-fee-rule-frequently-asked-questions
• Fact Sheet: Request for Fee Waiver for Form N-400, USCIS (n.d.). https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetI-912RequestforFeeWaiverForFormN-400.pdf

USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on a Blanket L Petition

U.S. Citizenship and Immigration Services (USCIS) seeks comments on a proposed revision of the nonimmigrant petition based on a blanket L intracompany transferee petition.

USCIS explained that employers seeking to classify employees outside the United States as executives, managers, or specialized knowledge professionals, as nonimmigrant intra-company transferees pursuant to a previously approved blanket petition, may file this form. USCIS uses the information provided through the form to assess whether the employee meets the requirements for L-1 classification under blanket L petition approval.

Comments are due by April 24, 2023.

Details:

• USCIS notice and request for comments, 88 Fed. Reg. 10531 (Feb. 21, 2023). https://www.govinfo.gov/content/pkg/FR-2023-02-21/pdf/2023-03528.pdf

March Visa Bulletin Includes Updates on Visa Availability in Coming Months

The Department of State’s Visa Bulletin for March 2023 includes updates on visa availability in various categories, including possible retrogressions in the coming months:

• Visa availability in the EB-2 preference category for all countries (including China and India): Higher than expected number use, mostly due to continued new filings by applicants from all countries with priority dates earlier than the established final action dates, will necessitate corrective action in the coming months to hold number use within the maximum allowed under the fiscal year 2023 annual limit.
• Visa availability in the EB-3 preference category: Increased demand in the Employment Third category may necessitate the establishment of a worldwide final action date (including Mexico and Philippines) in the coming months.
• Further retrogression in the EB-4 preference category: Number use and demand in this category have continued to increase, which necessitates further retrogression of final action dates and application filing dates.
• Retrogression of the EB-5 preference category final action date for India: For March, the final action date for the EB-5 Unreserved category for India is set at 01JUN18.

The bulletin also notes that the National Visa Center has provided totals of applicants registered in the various numerically limited categories for processing at overseas posts.

Details:

• March 2023 Visa Bulletin, Department of State. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-march-2023.html

E-Verify Recommends Timeframes to Resolve Certain Social Security Mismatches; Deadline is September 29, 2023

E-Verify notified employers on February 15, 2023, that it recommends that employees with E-Verify Social Security Administration (SSA) Tentative Nonconfirmation mismatch cases falling within certain timeframes visit their local SSA offices within preferred date ranges:

E-Verify said these timeframes are “recommended,” and that all affected employees must visit SSA to resolve their mismatch by September 29, 2023, or their cases will receive a Final Nonconfirmation.

Details:

• “Social Security Administration Resumes E-Verify Operations,” https://www.e-verify.gov/social-security-administration-resumes-e-verify-operations

Fourth Circuit Affirms Denial of Employer’s Petition for Multinational Executive/Manager

Elizur International Inc., a company that produces ornamental glass products, filed an employment-based green card petition in 2018 seeking to permanently employ Chuncheng Ren, a Chinese citizen, in the United States as a multinational executive or manager. U.S. Citizenship and Immigration Services (USCIS) denied Elizur’s petition. Rather than file an administrative appeal, Elizur and Mr. Ren sued in federal court and lost. On February 14, 2023, the U.S. Court of Appeals for the Fourth Circuit affirmed the denial.

The court noted that to establish whether an employee works or has worked in a managerial or executive role, the petitioner (sponsoring employer) must submit a detailed list of the job-related tasks the individual performs or has performed; general or vague descriptions are insufficient. But a thorough job description is not enough, the court said. The description must also reveal that the beneficiary’s duties have been or will be primarily managerial or executive in nature. Mere assertions, as in the case here, that the beneficiary “provided managerial and executive leadership to the marketing/product development functions” and “implemented new business acquisition initiatives,” for example, are insufficient. The court noted that the company’s submission was “filled with fluffy descriptions devoid of any real substance. Indeed, it largely reads more like a collection of one-liners useful for resume drafting than a meaningful description of the duties that Ren actually performed.”

The court also found that the agency’s request for supplemental evidence about the employee’s “specific daily duties” and the “percentage of time spent on each duty” was appropriate. “A petitioner’s failure to furnish evidence of specific day-to-day duties forms a common component of both agency denials of Form I-140 petitions and courts’ review of those denials,” the court noted.

This case provides a reminder to employers that the benefits of an I-140 permanent residence petition for a multinational executive or manager are distinct from the benefits of an L-1A temporary nonimmigrant visa for a multinational executive or manager. This includes the fact that for the benefits of I-140 permanent residence, an employer must establish that the beneficiary also held a manager or executive-level position abroad, whereas this is not a criterion for the L-1A status/visa.

Details:

• Ren v. USCIS, https://cases.justia.com/federal/appellate-courts/ca4/21-1661/21-1661-2023-02-14.pdf?ts=1676404915

State Dept. Plans Pilot to Allow Visa Renewals in United States for H and L Workers

According to reports, the Department of State (DOS) plans to launch a pilot program later this year to allow visa renewals in the United States for H and L nonimmigrant workers who currently must leave the country to renew their visas at consular offices abroad. The program could expand eventually. Practitioners say such a policy, which was in place until 2004, would help to relieve backlogs and lengthy wait times abroad and reduce the burden on consular offices and visa holders. The program is expected to benefit tens of thousands of foreign tech professionals in the United States on H-1B visas, among others.

The timeframe for the pilot program remains unclear. It appears that new regulations would not be required, but a new consular division in Washington, DC, would be needed. “That’s not a small endeavor,” said Julie Stufft, Deputy Assistant Secretary for Visa Services in the Bureau of Consular Affairs.

Details:

• “U.S. State Department Plans Pilot Program for Domestic Visa Renewal.” Klasko Immigration Law Partners, LLP, Feb. 15, 2023. https://klaskolaw.com/news/u-s-state-department-plans-pilot-program-for-domestic-visa-renewal/
• “State Department Plans Pilot for Domestic Visa Renewal,” Bloomberg Law, Feb. 9, 2023. https://news.bloomberglaw.com/daily-labor-report/state-department-plans-pilot-for-domestic-visa-renewal-this-year
• “Techies May Soon Be Able To Get Their Renewed H-1B Visas Stamped While Still in the United States,” Economic Times, Feb. 11, 2023. https://economictimes.indiatimes.com/nri/migrate/techies-may-soon-be-able-to-get-their-h-1b-visas-renewed-while-still-in-the-united-states/articleshow/97791419.cms
• “U.S. Planning to Resume ‘Domestic Visa Revalidation’ on Pilot Basis to Benefit H-1B Visa Holders,” Outlook India, Feb. 11, 2023. https://www.outlookindia.com/business/us-planning-to-resume-domestic-visa-revalidation-on-pilot-basis-to-benefit-h-1b-visa-holders-news-261059

41K+ Individuals Denied Visas Under Trump-Era Travel Ban Can Reapply Without Paying a Fee, Court Says

A district court has ordered the U.S. government to provide relief to approximately 41,000 nonimmigrant visa applicants who were denied a waiver during the Trump administration’s travel ban under Presidential Proclamation 9645 and who have not subsequently been granted a visa. The court said that the government will notify these 41,000+ individuals directly through the Consular Electronic Application Center and indirectly through the Department of State’s website, and will advise them that they may reapply for a nonimmigrant visa without paying a second fee. The government may set a reasonable time limit for them to reapply, the court said. No refunds will be provided to any individuals who may have already reapplied and paid a second fee.

The government will file by February 17, 2023: (1) a proposed schedule for providing notice; (2) proposed language for the notice; and (3) whether updated materials will be required, and if so, the relevant statutory or regulatory citation for any such materials.

The cases, filed in the U.S. District Court for the Northern District of California, include Emami v. Nielsen (case no. 3:18-cv-01587) and Pars Equality Center v. Pompeo (case no. 3:18-cv-07818).

Details:

• “Over 41K Visa Seekers Denied By Travel Ban Can Try Again,” Law360, Feb. 10, 2023. https://www.law360.com/articles/1575187/over-41k-visa-seekers-denied-by-travel-ban-can-try-again (registration required)
• Emami v. Nielsen. https://www.courtlistener.com/docket/6533642/emami-v-nielsen/

Klasko News

FIRM NEWS

Last month, Klasko sparked things up with a Valentine’s Day social hour event. See the pictures in the firm feature section below!

RECENT SPEAKING ENGAGEMENTS

H. Ronald Klasko
Managing Partner Ron Klasko spoke at the 44^th Annual AILA South Florida event in Miami, Florida on a panel entitled Employment-based Adjustment: Entering the Maze.

William A. Stock
Partner Bill Stock spoke at the 44^th Annual AILA South Florida event in Miami, Florida on a panel entitled Tackling Post-Pandemic Challenges.

UPCOMING SPEAKING ENGAGEMENTS

Elise A. Fialkowski
March 16^th, Partner Elise Fialkowski will be speaking at the 20th Washington International Education Conference in Washington, D.C.

William A. Stock
On March 24^th, Partner Bill Stock will be speaking at the 3^rd annual Villanova CARES Symposium to discuss sanctuary policies.

ICYMI: RECENT BLOG POSTS AND ALERTS

U.S. State Department Plans Pilot Program for Domestic Visa Renewal
In this client alert, Carolina Regales informs confirmation of the U.S. State Department plans to launch a pilot program later this year that will benefit H-1B and L-1 visa workers.

The O-1B Nonimmigrant Visa: A Creative Alternative to the H-1B Lottery
In this article, Nigel James gives those with extraordinary ability in the arts an alternative to the H-1B visa and explains the advantages of an O-1B visa.

FIRM FEATURE

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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.