Worldwide Visa Operations Recovering Faster Than Expected, State Dept. Announces
On October 21, 2022, the Department of State (DOS) announced that worldwide visa operations are recovering faster than expected from COVID-19-pandemic-related effects. As a result, the agency has the doubled hiring of U.S. Foreign Service personnel and said it expects to reach pre-pandemic processing levels this year.
The COVID-19 pandemic “forced profound reductions in DOS’s visa processing capacity” in two main ways, the agency explained. First, restrictions on travel to the United States, and local restrictions on public places like overseas consular waiting rooms, curbed the ability to see visa applicants. Second, as revenue from the application fees that fund visa processing operations was cut nearly in half, more than 300 overseas consular officer positions went unfilled in 2020 and 2021, further reducing the number of visa applications that could be processed.
DOS said that 96 percent of U.S. embassies and consulates are again interviewing visa applicants. Nonimmigrant visa applications are being processed at 94 percent of pre-pandemic monthly averages, and immigrant visa application processing is at 130 percent. In the past 12 months (through September 30, 2022), DOS processed 8 million nonimmigrant visas, well above its best-case projections. DOS also noted that the agency set records for student and academic exchange visitor visas. Consular sections worldwide adjudicated more student visas in July 2022 than in any other month since 2016, with nearly 180,000 F, M, and academic J visas processed, DOS said. In addition, the agency issued 54,334 diversity visas (DVs) during the DV-2022 program year—the highest number of DVs issued in 25 years, and all available DV numbers were exhausted when that total was combined with the domestic adjustments of status approved by USCIS under the DV program.
- DOS update, Oct. 21, 2022, https://bit.ly/3sJ1z9g
USCIS Extends Certain COVID-19-Related Flexibilities Through January 23, 2023
U.S. Citizenship and Immigration Services (USCIS) announced that it is extending certain COVID-19-related flexibilities through January 24, 2023, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023:
- Requests for Evidence
- Continuations to Request Evidence (N-14)
- Notices of Intent to Deny, Revoke, Rescind, Terminate (regional centers), or Withdraw Temporary Protected Status
- Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant
In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or a Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if:
- The form was filed up to 90 calendar days from the issuance of a decision USCIS made; and
- USCIS made that decision between November 1, 2021, and January 24, 2023.
Reproduced-signature flexibility announced in March 2020 became a permanent policy on July 25, 2022.
- USCIS alert, Oct. 24, 2022. https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-0
Duplicate Copies of Form I-129 No Longer Required
U.S. Citizenship and Immigration Services (USCIS) no longer requires petitioners to submit duplicate copies of Form I-129, Petition for a Nonimmigrant Worker, or of the supporting documentation, unless the agency specifically asks for it.
“Due to enhanced electronic scanning capabilities and data-sharing with the U.S. Department of State, duplicate copies are no longer needed to avoid delays in consular processing,” USCIS said.
- USCIS alert, https://www.uscis.gov/i-129
EOIR Announces 32 New Immigration Judges
On October 26, 2022, the Department of Justice’s Executive Office for Immigration Review announced the appointment of 32 immigration judges (IJs) to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.
Individuals interested in applying for an IJ position can sign up for job alerts.
- USCIS release, Oct. 19, 2022. https://bit.ly/3MWvZ1g
Fortune 500 Companies Call for Protection of DACA Program, ‘Dreamers’
Several large U.S. corporations have launched an advertising campaign to protect the Deferred Action for Childhood Arrivals (DACA) program, whose more than 600,000 beneficiaries are called “Dreamers.” They argue in an open letter that they “face another crisis if Congress fails to act on an issue that has strong bipartisan support from the American people.” The letter states:
The recent ruling by the U.S. 5th Circuit Court of Appeals declaring DACA illegal puts all of these individuals, their families, and their employers at risk. Each DACA recipient will soon face the threat of losing their work authorization and protection from deportation, while our businesses face the threat of losing critical employees.
The worker shortage will get worse for the United States if hundreds of thousands of critical workers are stripped of their legal ability to support themselves and their families. That is the situation we currently face if this ruling becomes final, and it is the reason for our request today.
Given that DACA applications and renewals were granted on a rolling basis, the end of this program means that an estimated 22,000 jobs would be lost every month for two years. That is roughly 1,000 job losses per business day at a time when the U.S. economy already faces significant workforce shortages.
When the last DACA recipient’s work permit expires, the U.S. will have lost more than 500,000 jobs, and the U.S. economy will lose as much as $11.7 billion annually—or roughly $1 billion monthly—in wages from previously employed DACA recipients. (To put this into perspective, in Texas alone, 400 healthcare workers and 300 teachers will be forced out of their jobs each month.)
Signers of the letter include, among others, Amazon, Apple, Google, Meta, MGM Resorts, Microsoft, Starbucks, and Target. The ads are running in various major newspapers, including the Wall Street Journal, the Dallas Morning News, and the Charlotte Observer.
The ad campaign follows a decision by the U.S. Court of Appeals for the Fifth Circuit that ruled the program illegal but allowed current recipients to maintain status during a lower court’s review. The lower court is likely to rule against DACA, according to observers. Further action in Congress is uncertain.
- Letter to Congress, Coalition for the American Dream, Oct. 20, 2022. https://www.coalitionfortheamericandream.us/daca-fifth-circuit-response/
- “With DACA on Life Support, Microsoft, Apple, and Other Big U.S. Firms Launch Ad Campaign to Protect ‘Dreamers’,” NBC News, Oct. 20, 2022. https://nbcnews.to/3SnDZtg
- “Federal Judge Temporarily Allows DACA Protections to Continue,” NBC News, Oct. 14, 2022. https://www.nbcnews.com/politics/immigration/federal-judge-temporarily-allows-daca-protections-continue-rcna52339
USCIS Updates Guidance on Medical Exceptions to Naturalization Requirements for Applicants With Disabilities
U.S. Citizenship and Immigration Services (USCIS) announced on October 19, 2022, that it has updated its policy guidance to clarify and conform with the revision of Form N-648, Medical Certification for Disability Exceptions.
Naturalization applicants with a physical or developmental disability or mental impairment that precludes them from fulfilling the English and civics testing requirements for naturalization may file Form N-648 to request an exception to those requirements. The form must be completed and certified by a medical professional.
Based on public comments, USCIS said, the revisions to Form N-648 eliminate questions and language that no longer have practical utility or were redundant. Most notable changes include the elimination of questions about how each relevant disability affects specific functions of the applicant’s daily life, including the ability to work or go to school. The revisions also eliminate dates of diagnosis, description of the severity of each disability, and whether the certifying medical professional has a pre-existing relationship with the applicant. Further, USCIS said, the revisions allow the medical professional the option to indicate an applicant’s need for an oath waiver, thereby eliminating the need for separate medical documentation. The updated policy also provides guidance for telehealth medical examinations and allows USCIS to accept an applicant’s Form N-648 after the Form N-400, Application for Naturalization, is filed.
- USCIS release, Oct. 19, 2022. https://bit.ly/3MWvZ1g
Employers Should Continue to Use Current I-9 Form Even After Oct. 31 Expiration, DHS Says; ICE Announces I-9 Flexibility Extension
The Department of Homeland Security (DHS) alerted employers on October 11, 2022, that they should continue using the current Form I-9, Employment Eligibility Verification, even after its October 31, 2022, expiration and “until further notice.” DHS said it will publish a Federal Register notice to announce the new I-9 form when it becomes available.
Also, U.S. Immigration and Customs Enforcement announced an extension until July 31, 2023, of the Form I-9 flexibilities first announced in March 2020. The flexibilities include DHS’s deferral of physical presence requirements applicable to employers and workplaces operating remotely.
- E-Verify alert, Oct. 11, 2022, https://bit.ly/3S3W4ML
- “ICE Announces Extension to I-9 Compliance Flexibility,” Oct. 11, 2022, https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-3
USCIS Issues Policy Guidance on EB-5 Reform and Integrity Act of 2022
U.S. Citizenship and Immigration Services (USCIS) issued policy guidance related to an EB-5 immigrant investor rule that a federal court vacated on June 22, 2021. Highlights include:
- Removing the vacated provisions of the EB-5 rule;
- Adding that an applicant may file Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with or subsequent to a Form I-526, Immigrant Petition by Standalone Investor, if an immigrant visa is immediately available;
- Revising the investment amounts and targeted employment area designation process; and
- Updating the name of Form I-526 throughout volumes 7 and 8 of the USCIS Policy Manual from “Immigrant Petition by Alien Entrepreneur” to “Immigrant Petition by Standalone Investor” and adding references to Form I-526E, Immigrant Petition by a Regional Center Investor.
- USCIS release, Oct. 11, 2022. https://www.uscis.gov/newsroom/alerts/uscis-issues-policy-guidance-on-the-eb-5-reform-and-integrity-act-of-2022-0
- EB-5 Q&A: EB-5 Reform and Integrity Act of 2022. https://bit.ly/3yIGShf
CBP Publishes Final Rule on Media Representatives From China Seeking to Enter the United States
U.S. Customs and Border Protection (CBP) published a final rule on October 13, 2022, that removes a maximum 90-day period of stay for certain representatives of foreign information media from China and allows the Secretary of Homeland Security to determine the maximum period of stay, up to one year.
The final rule applies to foreign nationals who seek to enter the United States in “I” nonimmigrant status as representatives of foreign information media, and who present a passport issued by the People’s Republic of China (PRC), except for Hong Kong Special Administrative Region (SAR) or Macau SAR passport holders.
- CBP Final Rule, 87 Fed. Reg. 61959 (Oct. 13, 2022). https://www.govinfo.gov/content/pkg/FR-2022-10-13/pdf/2022-21898.pdf
Three Klasko Partners were recognized in this year’s EB5 Investors Magazine’s Top 25 Attorney list! Congratulations to Ron Klasko, Dan Lundy, and Anu Nair!
IN THE NEWS
William A. Stock
Bill Stock was interviewed in this Forbes article on how the current Employment Authorization for Certain H-4 Dependent Spouses regulation creates talent gaps and issues for H-1B visa holders’ spouses and employers.
RECENT SPEAKING ENGAGEMENTS
Nigel D. James
On October 17th, associate Nigel James presented to Penn State about Name, Image, and Likeness considerations for international student athletes.
Klasko Immigration Law Partners
On October 25th, Klasko hosted its sixteenth immigration seminar addressing current topics of interest for professionals working in employment-based immigration.
H. Ronald Klasko │ Daniel B. Lundy
Partners Ron Klasko and Dan Lundy both spoke at the 2022 AILA CFC Annual Conference on October 27, 2022, in Clearwater, FL. Ron spoke on the panel titled “Utilizing All the Tools in Your Toolbox: Pursuing Litigation to Overcome Denials and Delays and Current Mandamus Trends”. Dan spoke on the panel called “New EB-5 Integrity Laws and Processes Protecting Investors”.
Myriam Jaidi │ Nigel D. James │ Grace W. Waweru
On November 2nd, Myriam Jaidi, Nigel James, and Grace Waweru presented to Princeton University on visa options for postdocs and graduate students.
UPCOMING SPEAKING ENGAGEMENTS
H. Ronald Klasko
Ron will be speaking at JTC Americas and Saul Ewing Arnstein & Lehr, LLP’s EB-5 event on November 9, 2022, in Miami titled, “RIA: EB-5 Industry Experts Help You Prepare for New Changes” on a panel called State of EB-5 Industry and EB-5 Best Practices.
H. Ronald Klasko │ Daniel B. Lundy │ Anu Nair
Partners Ron Klasko, Dan Lundy, and Anu Nair have received recognition in the 2022 Top 25 issue of EB5 Investors Magazine.
ICYMI: RECENT BLOG POSTS AND ALERTS
National Interest Waivers: Current State of Play
In this article, Allie K. Dempsey covers the lasted USCIS-issued policy guidance update on NIW adjudications and explains the positive effect it has on the U.S.
Klasko celebrates another social event with a Halloween twist! See pictures below!
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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.