January 2, 2023, Update
Top Immigration Policies to Watch in 2023
Border security, immigration backlogs and permanent residency for those who grew up in the U.S. without authorization will continue to be contentious issues this year for President Joe Biden and lawmakers to tackle. According to Law360.com, among the key potential policy developments for 2023 to watch are:
Immigration Court and Visa Processing Backlogs
Immigration law experts agree that court case backlogs are not going anywhere in 2023. According to Syracuse University’s data-gathering organization, Transactional Records Access Clearinghouse, two million cases are currently pending in immigration courts throughout the U.S. for the 2023 fiscal year. With the polarization in both the U.S. House of Representatives and the Senate, however, it is hard to see any legislative fixes in the near future.
Employment-Based Visa Gaps
This year will likely see more attention focused on labor shortages with moves aimed at strengthening the U.S. economy and global competitiveness — something the Biden administration said it would seek when coming into office.
Pointing to remarks by Federal Reserve Chairman Jerome Powell at The Hutchins Center on Fiscal and Monetary Policy in November, in which he highlighted a “plunge” in immigration as one of the factors behind the United States’ inflation, Mark Koestler — who co-chairs Kramer Levin’s business immigration group — said lawmakers should take actions like attracting and retaining STEM talent and raising “woefully inadequate” employment-based quotas.
Congress had introduced the bipartisan EAGLE Act of 2022 to phase out per-country limits on employment-based visas and get rid of caps on family-based green cards but had difficulty getting a vote in the U.S. House of Representatives. Koestler said he expects a similar bill to be introduced in the new Congress.
Looking at H-1B lottery submission numbers, Koestler said 2022 saw 484,000 submissions to USCIS for the 85,000 numbers available for the 2023 fiscal year — a 57% increase from the previous year.
Domestic Visa Renewal Program
The U.S. State Department (DOS) has signaled it might revive a domestic visa renewal program that would allow certain visa holders to renew visas in the U.S. This would ease uncertainty surrounding appointments and processing times for travelers, especially from India.
According to the State Department’s website, the current wait time as of Dec. 18 for nonimmigrant B-1 business visas and B-2 visitor visas at the U.S. Embassy in New Delhi, India, is 999 calendar days — nearly three years. For students and exchange visitors under the F, M, or J visas, the wait time is 127 days if an interview is required and 96 days if they have an interview waiver.
SOURCE: Rae Ann Varona, Law360.com, January 2, 2023: https://www.law360.com/immigration/articles/1553195/immigration-policies-to-watch-in-2023?copied=1
Visa Bulletin for January 2023 Reports Availability in the Employment First Category for China and India, and Unavailability of Religious Workers Category
The Department of State’s (DOS) Visa Bulletin for January 2023 includes an update on visa availability in the employment first category for China and India. The bulletin states that it has become necessary to establish employment first preference final action and application filing dates for China and India, effective in January, to hold the number used within the maximum allowed under the fiscal year 2023 annual limit. Applicants from China and India are subject to a final action date of 01FEB22 and an application filing date of 01JUN22.
“This situation will be continually monitored, and any necessary adjustments will be made accordingly,” the bulletin states.
SOURCE: ABIL Immigration Insider, December 31, 2022, and Department of State’s Visa Bulletin for January 2023. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-january-2023.html
CDC Announces New COVID-19 Testing Requirement for Air Passengers from China
Effective January 5, 2023, the Centers for Disease Control and Prevention (CDC) will require a pre-departure negative COVID-19 test, or documentation of recovery within the last 90 days, for air passengers boarding flights to the United States originating from the People’s Republic of China (PRC) and the Special Administrative Regions of Hong Kong and Macau.
CDC said it is announcing this step “to slow the spread of COVID-19 in the United States during the surge in COVID-19 cases in the PRC given the lack of adequate and transparent epidemiological and viral genomic sequence data being reported from the PRC. These data are critical to monitor the case surge effectively and decrease the chance for entry of a novel variant of concern. CDC will continue to monitor the situation and adjust our approach, as necessary.”
CDC made the decision following China’s announcement that it is dropping quarantine requirements for inbound international arrivals and resuming outbound travel for Chinese citizens. According to reports, a regional health chief in Hong Kong said that almost half of air passengers arriving on December 26, 2022, in Italy’s Milan airport from China tested positive for COVID-19. Although some countries in addition to the United States have imposed restrictions, such as Japan, Spain, and Italy, so far others are not changing their entry requirements, such as France and Great Britain, although the latter is reportedly considering the issue. India imposed similar restrictions on travelers from Japan, South Korea, and Thailand, in addition to China.
SOURCE: ABIL Immigration Insider, December 31, 2022, and . https://www.cdc.gov/media/releases/2022/p1228-COVID-china.html
December 2022 Review
E-Verify Allows Employers to Upload Multiple Hiring Sites Simultaneously
E-Verify has restored the ability of employers, employer agents, and corporate administrators to upload multiple hiring sites simultaneously. E-Verify said this feature increases efficiency for companies with multiple hiring sites by providing an alternative to manual entry and is available for all access methods when adding hiring sites.
An account may have an unlimited number of hiring sites, but no more than 1,000 hiring sites may be uploaded at a time. Users can add multiple hiring sites by uploading a CSV file during initial enrollment or within the company profile post-enrollment. Companies must upload a valid CSV file that follows the requirements listed on the “View CSV Guidelines” page. E-Verify provides a CSV template and a link to the “View CSV Guidelines” page during the bulk upload process.
Questions may be emailed to E-Verify@uscis.dhs.gov.
SOURCE: ABIL Immigration Insider, December 25, 2022, and https://bit.ly/3VjhFm4
All Visa Services Suspended at U.S Embassy and Consulates in China
Due to the operational impacts caused by the surge of COVID-19 infections across China, U.S. Embassy Beijing and U.S. Consulate General Shanghai are providing passport and emergency citizen services only. U.S. Consulates General Wuhan, Shenyang, and Guangzhou will only be providing emergency consular services until further notice. Please go to https://china.usembassy-china.org.cn/services/ for more information on emergency consular services. All routine Visa Services, with the exception of some previously scheduled for Consulate General Shanghai — are temporarily suspended; all regularly scheduled appointments at Embassy Beijing and the other Consulates General have been canceled.
NIV applicants can reschedule their appointment for a later date by following the instructions at https://www.ustraveldocs.com/cn/cn-niv-visaapply.asp . IV applicants with questions should contact us at https://china.usembassy-china.org.cn/visas/immigrant-visas/immigrant-visa-unit-question/
The Mission uses the Smart Traveler Enrollment Program (STEP) to send messages and updates to U.S. citizens in the community. To receive these messages, U.S. citizens are strongly encouraged to register in STEP at https://step.state.gov/ .
DHS’s Public Charge Final Rule Went into Effect on December 23
On Dec. 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule went into effect. This final rule, which was previously announced, provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. This final rule restores the historical understanding of a “public charge” that had been in place for decades before the previous administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination.
When making a public charge inadmissibility determination under this final rule, DHS will consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills;” a sufficient Affidavit of Support Under Section 213A of the INA (when one is required); and prior or current receipt of: supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.
DHS will not consider receipt of noncash benefits (for example, Supplemental Nutrition Assistance Program, public housing, school lunch programs, etc.) other than long-term institutionalization at government expense.
DHS has published a Policy Manual update providing guidance to USCIS officers on how to implement this regulation fairly and consistently and informing the public about how the rule will be implemented. USCIS will begin applying the policy guidance on Dec. 23, 2022, to applications filed (or electronically submitted, if applicable) on or after that date. DHS has published the 12/23/22 edition of Form I-485, Application to Register Permanent Residence or Adjust Status, for applicants to prepare their applications in advance of Dec. 23, 2022. Applicants MUST NOT file the 12/23/22 edition of Form I-485 before Dec. 23, 2022. DHS will reject any Form I-485 with the edition date of 12/23/22 filed before Dec. 23, 2022.
· DHS will reject the 07/15/22 edition of Form I-485 if it is postmarked on or after Dec. 23, 2022.
· DHS will reject the 12/23/22 edition of Form I-485 if it is postmarked on or before Dec. 22, 2022.
SOURCE: USCIS Newsroom, December 19, 2022: https://www.uscis.gov/newsroom/alerts/dhss-public-charge-final-rule-goes-into-effect-on-dec-23
USCIS Provides Options for Nonimmigrant Workers Following Termination of Employment
U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations.
Below is a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination. Please note that not all options below provide employment authorization.
60-Day Grace Period
Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter (See 8 CFR 214.1(l)(2)).
During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (e.g., an H-1B change of employer petition for a worker in H-1B status).
Alternatively, workers may be able to remain in the United States in a period of authorized stay if they timely file an application to change to a new nonimmigrant status (such as B-2 visitor nonimmigrant status) or an application for adjustment of status, if eligible (see below for a detailed overview of options).
Workers who are unable to timely file a change of status application or find a new employer who timely files a change of employer petition for the worker, may be required to depart the United States at the end of this grace period.
Portability to a New Employer
Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved.
Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer. This is commonly referred to as “porting.” More information about porting can be found in the USCIS Policy Manual.
Change of Status
Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants In addition, some spouses of H-1B workers may be eligible for work employment authorization if certain requirements are met.
Other possible nonimmigrant options include student status (F-1) or visitor status (B-1 or B-2). Note that, by statute, B-1 and B-2 nonimmigrant visitors are specifically precluded from “performing skilled or unskilled labor” in the United States. Certain F-1 students, by regulation, may engage in limited employment.
Note: The timely filing of a non-frivolous application to change status will toll, or stop, the accrual of unlawful presence until the application is adjudicated. For example, if an individual files a non-frivolous application to change status before the end of the applicant’s 60-day grace period, they will not accrue unlawful presence while the application remains pending even after the 60-day grace period has elapsed. If the application is ultimately approved, then the individual’s status is changed and is considered to have been in a period of authorized presence the entire time the application was pending. If the application is denied, then the individual starts to accrue unlawful presence the day after the denial decision.
Change of Status and Employer
Workers may use the up to 60-day discretionary grace period to seek a new employer-sponsored nonimmigrant status in the same or different status. For example, depending on the specific facts presented, an L-1 worker may be eligible for new employment under the TN, E-3, or H-1B1 classifications. The timely filing of a non-frivolous change of status application will prevent the accrual of unlawful presence until the application is adjudicated (see above). Such a filing alone will not, however, confer employment authorization in the new position during the pendency of the application, and will not extend employment authorization if the original classification is no longer valid. Some petitions may be eligible for premium processing for an additional fee.
Adjustment of Status
Some workers may be eligible to file a self-petitioned immigrant visa petition concurrently with an adjustment of status application. Examples of immigrant classifications that are eligible for self-petitioning include EB-1 Extraordinary Ability, EB-2 National Interest Waiver, or EB-5 Immigrant Investors. Workers with a pending adjustment application are generally eligible to remain in the United States and obtain an Employment Authorization Document (EAD).
Period of Authorized Stay – Compelling Circumstances Employment Authorization Document
Workers who are the beneficiary of an approved employment-based immigrant visa petition (Form I-140) may be eligible for a compelling circumstances EAD for up to one year if they:
· do not have an immigrant visa available to them in the Department of State’s Visa Bulletin, and
· face compelling circumstances.
Note: A compelling circumstances EAD is a discretionary stopgap measure intended to assist certain individuals on the path to lawful permanent residence by preventing the need to abruptly leave the United States. Workers who begin working on a compelling circumstances EAD will no longer be maintaining nonimmigrant status but generally will be considered to be in a period of authorized stay and will not accrue unlawful presence in the United States while the EAD is valid.
Some circumstances may warrant expedited adjudication, including applications to change status to a dependent status that includes eligibility for employment authorization. For example, an application to change status from H-1B to L-2 may be eligible for expedited adjudication to prevent severe financial loss.
Departure from the United States
Workers may choose to depart the United States. For H-1B and O workers who chose to depart the United States after involuntary cessation of employment, the reasonable costs of transportation to the worker’s last place of foreign residence must be borne by the H-1B employer or by the O employer and O petitioner, as applicable (See 8 CFR 214.2(h)(4)(iii)(E) and 8 CFR 214.2(o)(16)).
Once abroad, H-1B holders may seek U.S. employment and readmission to the United States for any remaining period of their H-1B status. Those seeking another classification for which they may be eligible can complete the application or petition process abroad and seek readmission to the United States.
SOURCE: USCIS Newsroom, December 19, 2022: https://www.uscis.gov/newsroom/alerts/options-for-nonimmigrant-workers-following-termination-of-employment
Green Cards Automatically Extended for Certain Naturalization Applicants
U.S. Citizenship and Immigration Services (USCIS) said it is automatically extending the validity of Permanent Resident Cards (green cards) for lawful permanent residents (LPRs) who applied for naturalization on December 12, 2022, or later.
USCIS will update the language on Form N-400 receipt notices to extend green cards for up to 24 months for these applicants. The receipt notice can be presented with the expired green card as evidence of continued status as well as for identity and employment authorization under List A of Employment Eligibility Verification (Form I-9) if presented before the expiration of the 24-month extension period, the agency said.
LPRs who filed for naturalization before December 12, 2022, will not receive a Form N-400 receipt notice with the extension. If their green card expires, they must still file Form I-90 or receive an ADIT stamp in their passport to maintain valid evidence of their LPR status. LPRs who lose their green card still must file Form I-90, even if they have applied for naturalization and received the automatic extension under the updated policy. USCIS said this is because noncitizens must carry within their personal possession proof of registration, such as the green card and any evidence of extensions, “or may be subject to criminal prosecution under INA 264(e).” Applicants who require an ADIT stamp may request an appointment at a USCIS Field Office from the USCIS Contact Center.
SOURCE: ABIL Immigration Insider, December 11, 2022, and https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-to-automatically-extend-green-cards-for-naturalization-applicants
Biden Administration Reinstates Immigration Task Force
The Biden administration is reinstating a task force that is aimed at helping immigrants and refugees integrate into the United States.
The Task Force on New Americans will be run by the Domestic Policy Council and the focus will be workforce training, education and financial access as well as language learning and the health of immigrants who have green cards and other types of legal status, according to the White House.
A version of the task force had been in existence off and on since the mid-2000s, most recently under former President Obama before it lapsed under Donald Trump whose policies were aimed at allowing as few migrants into the U.S. as possible.
The Biden administration’s approach to immigration – or more specifically immigrants – is more welcoming; the president has said many times that he feels they enrich the United States and make the nation stronger.
According to the White House, the task force will look at existing integration policies and programs and work to sharpen them and identify new key areas of need.
SOURCE: Colleen Long, Associated Press, December 12, 2022: https://apnews.com/article/politics-donald-trump-covid-barack-obama-united-states-government-7352574ad61c313bee0a46973581474d