USCIS Says Certain Afghan and Ukrainian Parolees Are Immediately Work Authorized
Effective November 21, 2022, certain Afghan and Ukrainian parolees are work authorized incident to their parole status based on recently passed laws, U.S. Citizenship and Immigration Services (USCIS) announced. To implement the statutory language, “other benefits available to refugees,” USCIS is providing employment authorization incident to status normally accorded to refugees and a no-fee initial (and replacement of an initial) employment authorization document (EAD) to Afghan and Ukrainian parolees so they “receive the same treatment as refugees,” the agency said.
This policy applies to the following individuals if their parole has not been terminated:
- Afghan parolees whose unexpired Form I-94, Arrival/Departure Record, contains a class of admission of “OAR.” Those who are Afghan parolees covered under section 2502(b), P.L. No. 117-43, who did not receive an “OAR” class of admission on their Form I-94 should email U.S. Customs and Border Protection at firstname.lastname@example.org to update their class of admission, if appropriate;
- Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “UHP”; and
- Ukrainian parolees whose unexpired Form I-94 contains a class of admission of “DT” issued between February 24, 2022, and September 30, 2023, and indicates Ukraine as the country of citizenship on the document.
For these parolees, their unexpired Form I-94 is an acceptable receipt they may present to employers to show their identity and employment authorization for the purposes of Form I-9, Employment Eligibility Verification. The receipt satisfies the Form I-9 requirement for 90 days from the date of hire (or in the case of re-verification, the date employment authorization expires). After 90 days, parolees must present an EAD or unrestricted Social Security card and an acceptable List B identity document from the Form I-9 Lists of Acceptable Documents (such as a state-issued driver’s license or identification card). Ukrainian and Afghan parolees must still file Form I-765 to receive a physical EAD.
Effective November 21, 2022, USCIS is also exempting the fee to file Form I-765 for Ukrainian parolees filing for an EAD by mail. Afghan parolees under OAW are already exempt from the fee for an initial paper-filed Form I-765 (and a replacement EAD) through September 30, 2023.
Effective December 5, 2022, USCIS will be able to process fee exemptions for online filings of Form I-765 for eligible Ukrainian and Afghan parolees.
- USCIS alert, Nov. 21, 2022. https://bit.ly/3APqFYB
- “Feds Grant Ukrainians, Afghans Immediate Work Authorization,” Law360, Nov. 22, 2022. https://www.law360.com/articles/1552063/feds-grant-ukrainians-afghans-immediate-work-authorization (registration required)
USCIS Announces Expedited Work Authorization Processing, Expanded Fee Exemptions for Afghans
On November 22, 2022, U.S. Citizenship and Immigration Services (USCIS) said it is extending and expanding previously announced fee exemptions and expedited application processing for certain Afghan nationals through September 30, 2023.
Fee exemptions include:
- An initial or replacement Form I-765, Application for Employment Authorization, for Afghan nationals who are applying for work authorization on the basis of parole (eligibility category (c)(11));
- Form I-485, Application to Register Permanent Residence or Adjust Status, to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601, Application for Waiver of Grounds of Inadmissibility;
- Form I-130, Petition for Alien Relative, filed with USCIS in the United States on behalf of any Afghan national (beneficiary) with a visa immediately available;
- Form I-824, Application for Action on an Approved Application or Petition, for an Afghan holding a Special Immigrant Visa;
- Form I-601, Application for Waiver of Grounds of Inadmissibility, for any Afghan national with an approved Form I-130 with a visa immediately available; and
- USCIS Immigrant Fee (Form I-551) for Afghan nationals.
Expedited processing includes:
- An initial and replacement Form I-765 for those applying for employment authorization on the basis of parole (eligibility category (c)(11));
- Form I-485 for Afghan nationals seeking to adjust status on the basis of Afghan special immigrant classification, and any associated Form I-601;
- Form I-589, Application for Asylum and for Withholding of Removal, filed by certain Afghan parolees as described in § 2502(a) of the Extending Government Funding and Delivering Emergency Assistance Act of 2021;
- Form I-130, filed with USCIS in the United States on behalf of an Afghan national (beneficiary) with a visa immediately available, and any associated Form I-601; and
- Form I-140, Immigrant Petition for Alien Workers, filed with USCIS on behalf of an Afghan national (beneficiary) with a visa immediately available.
- USCIS alert, Nov. 22, 2022. https://www.uscis.gov/newsroom/alerts/uscis-extends-and-expands-fee-exemptions-and-expedited-processing-for-afghan-nationals
Visa Bulletin for December 2022 Includes Many Updates
The Department of State’s Visa Bulletin for December 2022 includes a variety of updates:
- The estimated employment-based annual limit will be 197,000 for fiscal year (FY) 2023.
- Establishment of final action dates and application filing dates for China and India will most likely be necessary in the coming months.
- DOS has deemed it necessary to establish a worldwide employment second preference final action and application filing dates effective in December. Except for China and India, all countries are subject to a final action date of 01NOV22 and an application filing date of 01DEC22.
- Fewer additional numbers will be available to India in the employment second preference category than originally estimated when the October and November final action and application filing dates were established. Therefore, further corrective action has been necessary to ensure that the limited supply of visa numbers is allocated by priority date.
- High demand in the employment fourth preference category has necessitated the establishment of a worldwide final action date and application filing date for December. Except for El Salvador, Guatemala, Honduras, and Mexico, all countries are subject to a final action date of 22JUN22 and an application filing date of 22JUL22.
- Higher than expected demand in the employment fourth preference category for El Salvador, Guatemala, and Honduras may necessitate corrective action.
- The Certain Religious Workers (SR) category is set to expire as of December 16, 2022. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight December 15, 2022. Visas issued before that date will be valid only until December 15, 2022, and all individuals seeking admission in the non-minister special immigrant category must be admitted into the United States no later than midnight December 15, 2022. If legislative action extends this category, the December dates will be applied for the entire month. If there is no legislative action extending this category, the category will become “Unavailable” effective December 16, 2022.
- Visa Bulletin for December 2022. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-december-2022.html
Inspector General Releases Annual Statement on State Dept.’s Major Management and Performance Challenges
The Department of State’s (DOS) Office of Inspector General (OIG) released its annual statement on November 18, 2022, on DOS’s major management and performance challenges. The latest report noted that OIG’s recent review of the Bureau of Consular Affairs’ ConsularOne Modernization Program found:
[I]n the 10 years since the program began in 2011, the responsible office had conducted a very limited pilot of just one component of the program—the customer-facing portion of the electronic Consular Report of Birth Abroad—and had continued to miss deployment dates for other components. Initially launched to modernize and consolidate approximately 90 discrete consular legacy systems into a common technology framework, the program has experienced deficiencies and delays with profound implications for the bureau’s three fundamental responsibilities: the issuance of passports and other documentation to citizens and nationals, the protection of U.S. border security and facilitation of legitimate travel to the United States, and ensuring the welfare and protection of U.S. citizens abroad.
OIG’s review this year found that the program’s leadership “was unable to provide a clear, uniform definition of the ConsularOne program, what components it included, and which contracts supported the program, creating confusion for stakeholders.” This lack of clarity “hindered leadership’s oversight of the modernization effort and the ability to hold staff accountable for their performance.”
- Inspector General Statement on the Department of State’s Major Management and Performance Challenges, Fiscal Year 2022, https://www.stateoig.gov/uploads/report/reportpdffile/oigex2302.pdf
USCIS Releases Tips on Avoiding Paper Filing-Related Delays
On November 16, 2022, U.S. Citizenship and Immigration Services (USCIS) released tips to avoid paper filing-related scanning delays. USCIS said it scans and uploads many documents into electronic database systems as it moves toward an increasingly electronic environment.
Examples of practices to avoid include attaching documents with staples, paper clips, or other methods; folding documents; using insertable tab dividers; submitting multiple copies unless required, and sending original documents unless required, among other tips.
- USCIS alert, Nov. 16, 2022. https://www.uscis.gov/newsroom/alerts/recommendations-for-paper-filings-to-avoid-scanning-delays
DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini
The Department of Homeland Security (DHS), in consultation with the Department of State, announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. Effective November 10, 2022, DHS added the Kingdom of Eswatini (formerly Swaziland) to the list. Each country’s designation is valid until November 9, 2023.
DHS said that U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions, including those pending as of the date of publication of the Federal Register notice on November 10, 2022, “for nationals of countries not on the lists on a case-by-case basis only if doing so is determined to be in the interest of the United States.”
DHS said the notice does not affect the status of H-2 beneficiaries who are currently in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, the notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved before the date of publication. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B.
- DHS notice, 87 Fed. Reg. 67930 (Nov. 10, 2022). https://www.govinfo.gov/content/pkg/FR-2022-11-10/pdf/2022-24539.pdf
- USCIS alert, Nov. 9, 2022, https://www.uscis.gov/newsroom/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs-0
E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts
E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and also on a regular basis.
User accounts should be deleted whenever a user is separated from the organization or the user’s role no longer requires access. Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding, E-Verify noted.
E-Verify also notified program administrators that their accounts are associated with their employers: “If you are hired by a new employer, you will need to create a new account. You are prohibited from using your old employer’s account to create cases for a new employer.”
- E-Verify reminder, https://www.e-verify.gov/about-e-verify/whats-new/reminder-terminating-user-accounts-for-e-verify-employers-and-program
CIS Ombudsman Introduces Revised Form for Requesting Case Assistance
The Citizenship and Immigration Services (CIS) Ombudsman released an updated Form 7001, Request for Case Assistance.
The updated form, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.
- DHS Form 7001, Request for Case Assistance, https://www.dhs.gov/topic/cis-ombudsman/forms/7001#no-back
State Dept. Announces Full Resumption of Interviews for All Immigrant Visa Categories in Havana in January 2023
The Department of State (DOS) announced on November 10, 2022, that the U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. The U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022. Immigrant visa applicants whose appointments were originally scheduled in Georgetown will complete case processing there.
Embassy Havana will process diversity visa cases for applicants who reside in Cuba beginning in January 2023. DOS noted that Havana will not be an option on the dropdown menu when diversity visa selectees pick an interview location on the DS-260 immigrant visa application form. They should continue to select Georgetown for the DV-2023 program year. DOS said that applicants who provide a residential address within Cuba on their DS-260s will have their cases automatically reassigned to Havana unless they have already been scheduled at Georgetown.
Immigrant visa applicants scheduled for January 2023 appointments in Havana will begin receiving appointment notices on or after November 10, 2022.
- DOS notice, https://bit.ly/3Gb0SgU
President Accepts Resignation of CBP Commissioner
On November 12, 2022, President Joe Biden accepted the resignation of Chris Magnus, U.S. Customs and Border Protection Commissioner. He had initially refused to step down after Alejandro Mayorkas, Secretary of Homeland Security, reportedly told Mr. Magnus on November 9, 2022, that he must resign or he would be fired. Mr. Magnus’s duties and direct reports have been shifted to other people, an unnamed DHS official said.
Mr. Magnus was accused of unprofessional behavior by other officials working with him, an earlier report says. Several Republicans in the House of Representatives, who criticized his handling of border issues, then urged President Biden to call for Mr. Magnus’ resignation. Citing the earlier report, the letter also alleged that Mr. Magnus “fails to attend high-level meetings,” engages in “constant complaining about his fellow senior officials” in DHS, “was caught sleeping through some of the meetings he actually attended,” and “fails to actively participate during internal calls with Secretary Mayorkas regarding border and immigration issues.”
- “Customs and Border Protection Chief Resigns After Refusing Request to Step Down,” NBC News, Nov. 12, 2022. https://www.nbcnews.com/politics/immigration/customs-border-protection-chief-refusing-request-step-dhs-official-say-rcna56826
- U.S. Customs and Border Protection Commissioner Resigns,” CNN, Nov. 12, 2022. https://www.cnn.com/2022/11/12/politics/cbp-magnus-resignation-dhs-mayorkas
- “DHS Secretary to Biden’s Top Border Chief: Quit or Be Fired,” Politico, Nov. 11, 2022. https://www.politico.com/news/2022/11/11/dhs-secretary-bidens-top-border-chief-00066496
- “Exclusive: House Republicans Demand CBP Commissioner Resign,” Daily Caller, Nov. 1, 2022. https://dailycaller.com/2022/11/01/house-republicans-jody-hice-demand-customs-and-border-protection-cbp-commissioner-chris-magnus-resign/
- “Biden’s Top Border Chief Comes Under Internal Fire,” Politico, Oct. 17, 2022. https://www.politico.com/news/2022/10/17/customs-border-protection-chris-magnus-00061963
New Statutes of Liberty Episode
In this podcast episode, Anu Nair speaks with partner Bill Stock and senior associate Maria Mihaylova to discuss the potential impact of recent layoffs occurring in the different industries and how they affect H-1B employees. Listen here!
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.
William A. Stock
In the unfortunate events of layoffs, Bill Stock explains in this Forbes article what employers should consider when laying off an H-1B visa holder.
William A. Stock
Bill Stock is quoted in this Forbes article on the State Department’s visa wait times.
RECENT SPEAKING ENGAGEMENTS
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.
H. Ronald Klasko
Ron spoke 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 panels called State of EB-5 Industry and EB-5 Best Practices.
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
Three Attorneys from Klasko Immigration Law Partners Receive 2022 EB-5 Industry Recognition as Top 25 Attorneys
Klasko Immigration Law Partners is pleased to announce three of its EB-5 attorneys have received recognition in the 2022 Top 25 issue of EB5 Investors Magazine.
I Have an H-1B Visa and Just Got Laid Off. What Do I Need to Know?
In this blog, Bill Stock covers what H-1B employees need to know in the case of being laid off.
What Companies Should Know Before an H-1B Layoff
This blog covers the three key obligations companies should know before laying off an H-1B employee.
Layoff or Termination of H-1B Employees
In this article recently updated by Myriam Jaidi, Ron Klasko discussed the central issues involved in the termination of H-1B employees, including an H-1B layoff.
Processing Delays and Taking a Proactive Approach to Green Card Sponsorship
Romina Gomez addresses processing delays and what employers can do to be proactive about green card sponsorships in this article.
Every month one Klasko employee is nominated for a Ronny Award. Last month the Ronny Award went to HR and Operations Coordinator, Amanda Reddick. Her nominator wrote:
“I would like to nominate Amanda for the Ronny award. Amanda is so upbeat and always smiling. I don’t know many people in the office yet and when I have been onsite with Amanda, she always takes time to say good morning and make me feel comfortable. Amanda is always willing to help, and I appreciate her kindness.”
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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.