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Form ETA-9089 Case Creation, Submission Available Soon in FLAG, OFLC Says

The Department of Labor’s Office of Labor Certification (OFLC) announced on April 21, 2023, that it will begin accepting the revised Form ETA-9089, Application for Permanent Employment Certification, in the Foreign Labor Application Gateway (FLAG) system on May 16, 2023. Filers may begin creating and staging applications on April 24, 2023.

As a result of the transition to the revised version of the form and the transition to FLAG, OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 pm ET. OFLC also will no longer accept the previous version of Form ETA-9089 after May 15, 2023, either electronically or by mail.

OFLC said it will make recordings of several webinars on this topic available shortly.


USCIS Extends Temporary Suspension of Biometrics for Certain Form I-539 Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on April 19, 2023, that it has extended through September 30, 2023, the temporary suspension of the biometrics submission requirement for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status. The previously announced suspension was in place until May 17, 2023.

USCIS said it will allow adjudications for the specified categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. However, the agency said it retains discretion, on a case-by-case basis, to require biometrics for any applicant.

Form I-539 applicants meeting the biometrics suspension criteria are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee but will reject paper Form I-539 applications if the applicant meets the above criteria and submits a single payment covering both the filing fee and the $85 biometrics services fee.

USCIS said it plans to establish a permanent biometrics exemption for all Form I-539 applicants in the coming months.


Sen. Menendez’s Plan for Managing Western Hemisphere Migration Emphasizes Executive Actions, Proposes Expansion of Visa Access to Address U.S. Labor Shortages

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.


OFLC Reconsiders Denials Based on Question H.10-B ‘Acceptable Alternate Occupation Title’ on ETA-9089

The Department of Labor’s Office of Foreign Labor Certification (OFLC) posted an announcement on April 14, 2023, regarding recent permanent labor certification applications that were denied where the employer did not explicitly answer the question in field H.10-B of Form ETA-9089, Application for Permanent Employment Certification.

OFLC said it has “thoroughly reviewed” past and current permanent labor certification (PERM) applications with respect to how question H.10-B on the Form ETA-9089 has been completed. As a result of this review, OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles. Rather, they include statements such as “see H.14 – Special Skills.” OFLC has recently denied such applications for being incomplete.

OFLC evaluated these denials and determined that while they are “appropriate,” it has stopped issuing denials for this issue for pending applications and “will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue.”

OFLC said it recognizes that “as it transitions to the updated version of Form ETA-9089, which will incorporate Form ETA-9141 into PERM applications, there may be questions about whether employers should alter how they complete Form ETA-9141 as a result of this announcement. OFLC is considering that issue and will issue guidance in the near future if we determine that such guidance is necessary.”


Visa Bulletin for May Predicts Further Retrogressions in Some Employment-Based Categories

The Department of State’s Visa Bulletin for May 2023 includes a variety of updates:

  • Retrogression is likely in the final action dates for China and India in EB-1 visa number availability in the coming months.
  • EB-2 final action dates for the Rest of World, Mexico, and Philippines categories have retrogressed further to 15FEB22 due to higher-than-expected demand, following retrogression in April.
  • The India EB-2 and EB-5 final action dates will retrogress “as early as next month” to keep visa issuances within their annual per-country limits. “Every effort will be made in October to return the final action dates to at least the final action dates announced for April,” the bulletin says.
  • The EB-3 final action date of 01JUN22 is effective in May for the Rest of World, Mexico, and the Philippines.
  • “[F]urther corrective action” is likely in the final action dates for the EB-3 “Other Workers” category for the Rest of World, Mexico, and the Philippines in the coming months.


Biden Administration Plans to Expand Health Care Coverage to DACA Recipients

On April 13, 2023, the White House announced that the Department of Health and Human Services (HHS) will issue a proposed rule soon to expand the definition of “lawful presence” to include recipients of Deferred Action for Childhood Arrivals (DACA), known as “Dreamers.” According to reports, the proposed rule would mean that DACA recipients would be eligible for Medicaid and the Affordable Care Act’s insurance exchanges.

About a third of DACA recipients do not have access to health insurance, according to HHS Secretary Xavier Becerra. There are approximately 580,000 current DACA recipients.


DOS Publishes Notice on Ukrainian J-1 Student Relief

Under the Exchange Visitor Program regulations, the Department of State’s (DOS) Assistant Secretary for Educational and Cultural Affairs published a notice on April 5, 2023, waiving and modifying certain regulatory requirements with respect to a temporary educational and cultural exchange program established for Ukrainian J-1 students in the United States. DOS said it is extending Special Student Relief to eligible Ukrainian students in the United States on J-1 visas “to help mitigate the adverse impact on them resulting from the full-scale Russian invasion of Ukraine that began on February 24, 2022.”

DOS explained that many exchange visitors from Ukraine dependent upon financial support originating in their home country have limited or no access to funds, and others may have difficulty returning home. The agency said it took this action “to ameliorate hardship arising from lack of financial support and to facilitate these students’ continued studies in the United States.”

The action is effective retroactively from August 18, 2022, until October 23, 2023, “unless the U.S. Government unilaterally ends the arrangement early or the U.S. Government and the Government of Ukraine together extend its termination date.” In that case, DOS will publish a notice in the Federal Register of the termination date, the agency said.

Individuals eligible for Special Student Relief must have continuously resided in the United States since April 11, 2022. Special Student Relief with respect to program status and employment for J-1 Ukrainian students does not apply to Federal Work-Study jobs, DOS said.


USCIS Allows Additional 30 Days for Comments on Revisions to Form I-829, Petition by Investor to Remove Conditions

U.S. Citizenship and Immigration Services (USCIS) is allowing an additional 30 days, until May 5, 2023, for comments on revisions to Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status.

USCIS said it may consider recommendations made in previous comments received on its December 2022 notice in a separate comprehensive revision. The revisions proposed through the December notice were limited to updating the Certification section and minor grammar changes, USCIS said.


USCIS Is Accepting Self-Identified Gender Markers for Immigration Benefits

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is accepting a self-identified gender marker for individuals requesting immigration benefits. The gender marker they select does not need to match the gender marker indicated on their supporting documentation.

The update also clarifies that people requesting benefits do not need to submit proof of their gender identity when submitting a request to change their gender marker, except for those submitting an application for a replacement naturalization/citizenship document.

Currently, the only gender markers available are “Male” (M) or “Female” (F). The Department of Homeland Security (DHS) is working on options to include an additional gender marker (“X”) for another or unspecified gender identity. USCIS said it will update its forms and its Policy Manual accordingly.

In April 2021, DHS published a request for public feedback on barriers to USCIS benefits and services. Responses indicated that the evidentiary requirements associated with gender marker changes created barriers for individuals requesting immigration benefits, USCIS said.

Those seeking to change their gender marker after their initial filings should refer to the Updating or Correcting Your Documents webpage.


Klasko News


Have you heard? Klasko Immigration Law Partners now has a new website! Explore the new website here.Our 2023 Klasko Spring Webinar Series is coming soon! Follow us on Twitter, Facebook, Instagram, and LinkedIn for webinar series updates, or subscribe to our newsletter to be the first to know when registration opens!


William A. Stock
In this Forbes article, Bill Stock comments on the recent court ruling that assures spouses of H-1B holders their right to work authorization in the U.S.


H. Ronald Klasko | Anu Nair | Alison Li
Ron Klasko, Anu Nair, and Alison Li spoke with EB5AN partners in a webinar on why Chinese investors should invest in rural projects and SOF best practices.

Elise A. Fialkowski
Elise Fialkowski spoke with the Association of American Universities Immigration Task Force and gave insight on the H-1B visa and lottery, recent developments, and the impact on students and universities.

H. Ronald Klasko
On April 14, Ron Klasko spoke at the 2023 AILA Philadelphia Chapter CLE Conference in Philadelphia, PA on a panel entitled NIVs Demystified.

Elise A. Fialkowski
On April 14, Elise Fialkowski spoke at the 2023 AILA Philadelphia Chapter CLE Conference in Philadelphia, PA on a panel covering Customs and Border Protection (CBP).


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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.

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