U.S. Immigration Updates– September 2022 Monthly Review

COVID-Related Restrictions Expected to Ease at the Canadian Border

According to unofficial reports, by the end of September 2022, Canada may drop its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. That border crossing handles more than 40,000 travelers each day, including commuters, truck drivers, and tourists. Canada may also end COVID-19 vaccine requirements for airport arrivals and no longer require filling out the ArriveCan app. Currently, all travelers in Canada must be fully vaccinated to travel by air, rail, or passenger’s vessels. In addition, some provinces or individual businesses may continue to limit discretionary activities, such as visits to restaurants, bars, gyms, and retail shops, to individuals who can provide proof of COVID-19 vaccination.

It is unclear whether the United States will also drop similar land-border vaccine requirements. At present, all nonimmigrant, non-U.S. citizen air travelers to the United States must be fully vaccinated and provide proof of vaccination status before boarding an airplane to the United States. Fully vaccinated foreign nationals may enter the United States at land ports of entry (POEs) and ferry terminals. Fully vaccinated travelers do not need to provide a pre-entry COVID-19 test result to enter the United States by air, land, or sea. Fully vaccinated foreign travelers can travel to the United States across the Northern and Southwest borders with Canada (and Mexico). U.S. citizens and lawful permanent residents do not need to provide proof of vaccination status at land POEs and ferry terminals.

A group of Canadian legislators and border-area mayors from both countries published a letter on September 20, 2022, to Prime Minister Justin Trudeau and President Joe Biden asking them to remove the border restrictions.

SOURCES: ABIL Immigration Insider, September 25, 2022 and https://www.detroitnews.com/story/news/local/detroit-city/2022/09/21/canada-lift-covid-vaccine-requirement/8070492001/


Congress Passes Bill to Conduct Employment-Related study of Foreign-Credentialed Immigrants and Refugees

On September 19, 2022, Congress passed the “Bridging the Gap for New Americans Act” (S. 3157) to require the Department of Labor to submit to Congress a study on the factors affecting employment opportunities for certain individuals with professional credentials obtained in a non-U.S. country, specifically individuals who are lawfully present noncitizens or naturalized U.S. citizens. The study will include policy recommendations for better enabling such individuals to obtain skill-appropriate employment in the United States.

The study is to include: (1) an analysis of the employment history of applicable immigrants and refugees admitted to the United States during the five-year period immediately preceding the date of enactment; (2) an assessment of any barriers that prevent applicable immigrants and refugees from using occupational experience obtained outside the United States to obtain employment in the United States; (3) an analysis of available public and private resources assisting applicable immigrants and refugees who have professional experience and qualifications obtained outside of the United States to obtain skill-appropriate employment in the United States; and (4) policy recommendations for better enabling applicable immigrants and refugees who have professional experience and qualifications obtained outside of the United States to obtain skill-appropriate employment in the United States.

SOURCES: ABIL Immigration Insider, September 25, 2022, and https://www.congress.gov/bill/117th-congress/senate-bill/3157


USCIS Implements Next Phase of Premium Processing for Certain Previously Filed EB-1 and EB-2 Immigrant Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on September 15, 2022, that it is implementing the next phase of the premium processing expansion for certain petitioners who have a pending Form I-140, Immigrant Petition for Alien Workers, under the EB-1 and EB-2 classifications.

This phase only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW), USCIS explained.

USCIS is now accepting Form I-907, Request for Premium Processing Service, requests for:

· E13 multinational executive and manager petitions received on or before January 1, 2022; and

· E21 NIW petitions received on or before February 1, 2022.

USCIS has 45 days to take adjudicative action on cases that request premium processing for these newly included Form I-140 classifications.

SOURCES: ABIL Immigration Insider, September 18, 2022 and USCIS alert, https://www.uscis.gov/newsroom/alerts/uscis-to-implement-next-phase-of-premium-processing-for-certain-previously-filed-eb-1-and-eb-2-form


October 2022 Visa Bulletin Includes Important Updates

The Department of State’s (DOS) Visa Bulletin for October 2022, the first month of the new fiscal year, includes several updates:

· Scheduled expiration of employment fourth preference (SR) Religious Workers category. Unless Congress extends this category, no SR visas may be issued overseas, or final action was taken on adjustment of status cases, after midnight September 29, 2022. Visas issued before that date will be valid only until that date. All individuals seeking admission in the non-minister special immigrant category must be admitted into the United States by midnight on September 29, 2022.

· Retrogression of China-mainland-born final action date and imposition of India final action date in the employment-based fifth preference unreserved categories (including C5, T5, I5, and R5). The final action date for the China-mainland-born EB-5 unreserved categories for immigrant investors will retrogress in October due to heavy demand for numbers. Also, due to India’s demand, a final action date for October will be imposed in the EB-5 unreserved categories.

· Retrogression of India employment second preference (EB-2) final action and application filing dates for October. Rapid forward movements of the India EB-2 final action and application filing dates during FY 2022 were made to maximize the number used under the unprecedented high employment limit of 281,507. As a result, heavy applicant demand has materialized. Coupled with significantly lower visa number availability for India EB-2 for FY 2023 compared to FY 2022, DOS said corrective action was required to keep number use within the maximum allowed under the FY 2023 annual limits.

· Visa availability in the employment fourth category. High demand in this category may necessitate the establishment of a worldwide final action date in the coming months, DOS said.

SOURCES: ABIL Immigration Insider, September 12, 2022, and https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-october-2022.html


Final Rule on Public Charge Ground of Inadmissibility Issued By Department of Homeland Security

The Department of Homeland Security (DHS) is amending its regulations, effective December 23, 2022, regarding determinations of whether noncitizens are inadmissible to the United States because they are likely at any time to become a public charge.

Secretary of Homeland Security Alejandro Mayorkas said DHS “will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.” These benefits include Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

Under the final rule, DHS will determine that a noncitizen is likely to become a public charge if the noncitizen is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

On August 14, 2019, DHS issued a different rule on this topic, which is no longer in effect.

SOURCES: ABIL Immigration Insider, September 12, 2022; and https://www.uscis.gov/newsroom/news-releases/dhs-publishes-fair-and-humane-public-charge-rule


USCIS Releases FAQs for Employment-Based Adjustment of Status

U.S. Citizenship and Immigration Services (USCIS) released updated fiscal year (FY) 2023 frequently asked questions on employment-based (EB) adjustment of status. The introduction to the FAQs notes that the EB annual limit for FY 2023 will be higher than was typical before the pandemic but lower than in FYs 2021 and 2022. USCIS reiterated that it is “dedicated to ensuring we use as many available employment-based visas as possible in FY 2023,” which ends on September 30, 2023.

The FAQs note that the Department of State currently estimates that the FY 2023 employment-based annual limit will be approximately 200,000 due to unused family-based visa numbers from FY 2022 being added to the employment-based limit for FY 2023.

SOURCES: ABIL Immigration Insider, September 12, 2022; and https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2023-employment-based-adjustment-of-status-faqs


Office of Foreign Labor Certification to Modernize Permanent Labor Certification Program

The Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced that it was awarded investment from the DOL’s Technology Modernization Fund (TMF). The $7.2 million TMF investment “will improve DOL’s permanent labor certification services, helping to increase efficiency, improve customer experience, and address fraud and security risks overall,” TMF said.

Brian Pasternak, Administrator, Office of Foreign Labor Certification, said, “By integrating the permanent labor certification process into the Foreign Labor Application Gateway, which uses [the General Services Administration’s] Login.gov, we will make it easier, faster, and cheaper for employers to access permanent labor certification services and create a more seamless immigrant visa processing experience.” Gundeep Ahluwalia, DOL’s Chief Information Officer, said, “The Department has developed a close working relationship with the TMF with past TMF awards and appreciates the opportunity to build technologies that ease the burden on U.S. employers.”

SOURCE: ABIL Immigration Insider, September 4, 2022, and https://www.dol.gov/agencies/eta/foreign-labor

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