U.S. Immigration Updates – Week of November 27, 2023 + November 2023 Monthly Review

 

USCIS Expands myProgress to Forms I-485 and I-821

On November 21, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it is expanding myProgress (formerly known as personalized processing times) to Form I-821, Application for Temporary Protected Status, and Form I-485, Application to Register Permanent Residence or Adjust Status. myProgress will initially only be available for family-based or Afghan special immigrant I-485 applicants.

USCIS explained that myProgress “provides applicants with access, in their online account, to personalized estimates of their wait time for major milestones and actions on their case, including their final case decision. While estimates are based on case type and historical patterns, they are not a guarantee of timing, and cannot take into consideration all possible unique application processing factors.” Milestones include confirmation that the application was received, movement of the application through pre-processing and adjudicative steps, and the case decision.

In addition to Form I-485 and Form I-821, myProgress is available for applicants with a USCIS online account who file Form I-765, Application for Employment Authorization; Form I-131, Application for Travel Document; Form N-400, Application for Naturalization; Form I-90, Application to Replace Permanent Resident Card; or Form I-130, Petition for Alien Relative.

Applicants still need to visit the public Check Case Processing Times webpage to determine whether they are eligible to file an Outside of Normal Processing Times service request, USCIS noted.

SOURCES: USCIS alert (Nov. 21, 2023).

 

Government Shutdown Averted for Now: Congress Passes Continuing Resolution

On November 15, Congress passed a stopgap funding bill that was signed by President Biden the following day. The bill averts a government shutdown until early next year. The two-step bill extends appropriations dealing with veterans programs, transportation, housing, agriculture and energy until Jan. 19. Funding for eight other appropriations bills, including the Departments of Homeland Security, Labor, and State would be extended until February 2.

SOURCE: Caitlin Yilek. “Senate votes to pass funding bill and avoid government shutdown.” CBS News, November 15, 2023: https://www.cbsnews.com/news/government-shutdown-2023-senate-vote-today/

 

Department of Justice Reaches Immigration-Related Discrimination Settlements

Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., DOJ has settled immigration-related discrimination cases with a New York City health care system and a staffing agency with offices nationwide. Below are highlights of the settlements:

NYC Health and Hospitals Corporation. On November 16, 2023, DOJ announced a settlement agreement with New York City Health and Hospitals Corporation (NYCHH), which provides health care services to more than a million New Yorkers. The agreement resolves DOJ’s determination that NYCHH violated the anti-discrimination provision of the Immigration and Nationality Act (INA) when it rejected a worker’s valid employment authorization document (EAD) based on the worker’s national origin.

The worker’s EAD had been extended automatically under Temporary Protected Status (TPS). DOJ determined that NYCHH rejected the valid document and delayed the onboarding of the worker based on its incorrect assumption that the worker’s country of birth listed on her EAD had to be the same as the country designated for TPS. DOJ pointed out that Federal Register notices that automatically extend a TPS worker’s permission to work explain that the worker does not have to show additional documentation or prove citizenship status, and that the country of birth listed on the worker’s documentation does not have to match the TPS-designated country.

Under the terms of the agreement, NYCHH will pay back pay to the affected worker and a civil penalty to the United States, train its staff on the anti-discrimination provision, review and revise its employment policies and training materials, and be subject to departmental monitoring for three years.

Kforce Inc. On November 15, 2023, DOJ announced a settlement agreement with Kforce Inc. (Kforce), a staffing agency with 36 offices across the United States. The agreement resolves DOJ’s determination that Kforce discriminated against non-U.S. citizens with permission to work in the United States and excluded them from job opportunities based on their citizenship status.

DOJ’s investigation determined that from at least March 1, 2019, to February 28, 2022, Kforce distributed job advertisements that contained unlawful hiring restrictions based on citizenship status or otherwise screened out candidates based on their citizenship status.

Under the terms of the settlement, Kforce will pay $690,000 in civil penalties to the United States and set aside $230,000 to compensate affected workers. The agreement also requires Kforce to train its personnel in INA’s requirements, revise its employment policies, and be subject to departmental monitoring and reporting requirements.

SOURCES: DOJ release re NYC Health Care System settlement (Nov. 16, 2023). DOJ release re Kforce Inc. (Nov. 15, 2023).

 

Apple Settles Citizenship Discrimination Allegations with $25 Million ‘Landmark’ Agreement

On November 9, 2023, the Department of Justice (DOJ) announced a landmark agreement with Apple Inc. (Apple) to resolve allegations that the company illegally discriminated in hiring and recruitment against U.S. citizens and certain non-U.S. citizens whose permission to live in and work in the United States does not expire.

Under the agreement, Apple must pay up to $25 million in back pay and civil penalties, which DOJ said was the largest award that it has ever recovered under the antidiscrimination provision of the Immigration and Nationality Act (INA).

The settlement agreement relates to Apple’s recruitment for positions falling under the permanent labor certification program (PERM). Specifically, DOJ’s investigation found that Apple did not advertise positions it sought to fill through the PERM program on its external job website, even though its standard practice was to post other job positions on that website. It also required all PERM position applicants to mail paper applications even though the company permitted electronic applications for other positions. In some instances, Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically instead of being mailed in on paper. DOJ said that these “less effective recruitment procedures nearly always resulted in few or no applications to PERM positions from applicants whose permission to work does not expire.”

Pursuant to the $25 million agreement, Apple must pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible discrimination victims. The agreement also requires Apple to ensure that its recruitment for PERM positions more closely matches its standard recruitment practices. Under the agreement, Apple must conduct more expansive recruitment for all PERM positions, including posting PERM positions on its external job website, accepting electronic applications, and enabling applicants for PERM positions to be searchable in its applicant tracking system. DOJ said that Apple implemented some of these measures after the agency opened its investigation. Additionally, Apple must train its employees on the INA’s antidiscrimination requirements and be subject to departmental monitoring for the three-year period of the agreement.

SOURCE: Settlement Agreement between Apple and DOJ (Nov. 2023).

 

USCIS to Move Filing Location for Premium Processing Requests Filed with Immigrant Petition for Alien Workers

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin transitioning the filing location for Form I-907, Request for Premium Processing, when filed with Form I-140, Immigrant Petition for Alien Workers, from the service centers to the USCIS lockbox on November 13, 2023.

This change does not apply to those who are filing Form I-907 for a currently pending Form I-140 or to those who are filing Form I-140 with an associated application (such as Form I-765, Form I-131, or Form I-485). USCIS said it will soon announce filing location changes for those forms, but for the time being, they should continue to be filed with the service centers.

Starting November 13, 2023, those mailing Form I-140 and Form I-907 together to USCIS should use the addresses listed in the USCIS alert. Starting December 13, 2023, USCIS will reject any Form I-907 filed with Form I-140 that is received at the previous service center address.

SOURCE: DHS alert (Nov. 9, 2023).

 

Potomac Service Center Will No Longer Accept Paper Responses

Starting November 13, 2023, the Potomac Service Center (PSC) will no longer accept mailed correspondence. All mailed correspondence intended for cases processed by the PSC must be mailed to the Texas Service Center (TSC) as of that date, unless otherwise noted.

To avoid processing delays, USCIS said, applicants and their representatives should instead upload their responses to their USCIS online accounts (for receipt notices that start with IOE-) or mail them to the Texas Service Center at:

USCIS Texas Service Center
Attn: Digital RFE
6046 N Belt Line Rd. STE 114
Irving, TX 75038

USCIS strongly encourages use of an USCIS online account and self-service tools to upload responses for all online cases.

SOURCE: USCIS alert (Nov. 6, 2023).

 

Biden Administration Issues Executive Order on Artificial Intelligence that Includes Immigration-Related Provisions

On October 30, the Biden administration released Executive Order 14074, “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.”  The goal of this ambitious directive is to promote the safe development and use of AI and other critical and emerging technologies.

In recognizing the critical role of foreign talent with AI expertise, the Biden administration’s executive order launches a significant effort to make it easier for such talent to work and live in the United States. By attracting and retaining experts in AI from all over the world, the U.S. aims to retain and expand its leading role in the creation of emerging technologies.

Among other key elements, the Executive Order (EO) identifies the need for highly skilled talent as essential to the development of AI technologies. The EO recognizes that this involves both the development of talent in the United States as well as attracting foreign experts in AI and other emerging technologies to the United States. Specifically, Section 5 of the EO specifies multiple initiatives to streamline and modernize various legal immigration processes to make it easier for foreign AI talent to relocate and remain in the United States. The administration’s specific proposals in Section 5 include:

Streamlining the Consular Visa Process

Within 90 days of the issuance of the EO, the Departments of State and Homeland Security are to:

  1. streamline processing times for visa petitions and applications for foreign national to work, study, or conduct research on AI or other critical and emerging technologies.
  2. facilitate continued availability of visa appointments in sufficient volume for foreign nationals with expertise in AI or other critical and emerging technologies.

Changes to Visa Programs

  1. Within 180 days of the issuance of the EO, the Department of Homeland Security is tasked to initiate changes to modernize immigration pathways for foreign nationals with expertise in AI or other emerging technologies, including in the O-1A, EB-1, and EB-2 visa categories.
    1. Foreign applicants with AI expertise, such as computer scientists with an advanced degree, will be able to petition as aliens of extraordinary ability in sciences and/or business for the nonimmigrant O-1A category.
    2. Foreign applicants with AI expertise will be able to petition for permanent residence as aliens of extraordinary ability (EB-1A), or exceptional ability (i.e., advanced degree holders) in the EB-2 category. Startup founders of companies in AI and other critical and emerging technologies will also be able to petition using the International Entrepreneur Rule.
  2. Direct the Department of Homeland Security to continue efforts to modernize the H-1B program, including by experts in AI and other critical and emerging technologies and consider initiating a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident.

Improving the Exchange Visitor (J-1) Process

The Department of State is tasked to improve the J-1 process so that foreign workers with expertise in AI or other emerging technologies can more easily apply to work in the U.S.

Within 120 days of the issuance of the EO, the Department of State will:

  1. consider initiating rulemaking to establish new criteria to designate countries and skills on the Department of State’s Exchange Visitors Skills List as it relates to the 2-year foreign residence requirement.
  2. consider updating the 2009 Revised Exchange Visitor Skills List to include more AI-related skills,
  3. consider a domestic visa renewal program to enable qualified applicants, including those with expertise in AI and critical and emerging technologies, to continue to work in the US.

Within 180 days:

  1. consider initiating rulemaking to expand the categories of nonimmigrants who qualify for domestic visa renewal to include J-1 research scholars and F-1 STEM students.
  2. establish a program to identify and attract foreign experts in AI and other critical and emerging technologies to inform them of possible nonimmigrant and immigrant visa options so that they can work in the U.S. as well as potential expedition of their visa petitions and applications.

Schedule A Occupations

Within 45 days, the Department of Labor is:

  1. tasked with considering updates to the Schedule A list of occupations – which mainly includes aliens in the sciences and arts, performing arts, physical therapists, and nurses – to include certain foreign workers with expertise in AI and other STEM-related occupations.[3]
  2. tasked with publishing a request for information (RFI) to solicit public input to identify AI and other STEM-related occupations as well as other occupations for which there is an insufficient number of ready, willing able, and qualified United States workers.
  3. If Schedule A is extended to include AI and other emerging technologies, this could obviate the need to file a NIW (National Interest Waiver) application for this set of skilled AI foreign talent. Schedule A occupations are exempt from the Permanent Labor Certification process so this would speed up the process of securing permanent residence for covered foreign workers

Various Talent Attraction Initiatives

  1. Publication by the Department of Homeland Security of informational resources to attract and retain AI talent including a comprehensive guide for experts in AI and other critical technologies to understand their options for working in the U.S. to be published on AI.gov.
  2. The Departments of State and Homeland Security are to use discretionary authority to support and attract foreign nationals with expertise in AI and other critical and emerging technologies seeking to work in the U.S.

The full text of the Executive Order can be found at: https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/

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