U.S. Immigration Updates- Week of October 10, 2022

U.S. Court of Appeals Upholds Optional Practical Training and STEM Extension

On October 4, 2022, the U.S. Court of Appeals for the District of Columbia affirmed the judgment of the district court sustaining the Department of Homeland Security’s (DHS) current Optional Practical Training (OPT) rule’s authorization of a limited period of post-coursework OPT, if recommended and overseen by the school and approved by DHS, for qualifying students on F-1 visas. OPT includes an extension for students in science, technology, engineering, or mathematics (STEM) fields of an additional 24 months beyond the OPT period of 12 months.

Among other things, the court held that authorizing foreign students to engage in limited periods of employment for practical training as their schools recommend according to the terms set out in the rule is a valid exercise of DHS’s authority. The court also noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.”

The court noted that more than 100,000 of the roughly 1 million international students who come to the United States complete a period of practical training.

SOURCE: ABIL Immigration Insider, October 9, 2022


November 2022 Visa Bulletin: Visa Availability in the Employment Second Category

Increased demand in the Employment Second category may necessitate establishing a worldwide final action date in the coming months to hold the number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

SOURCE: ABIL Immigration Insider, October 9, 2022, and https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-november-2022.html


U.S. Immigration Rebounds But Remains Far From Plugging Labor Gaps

Immigration to the US is rebounding after a sharp two-year slowdown, but the pickup is unlikely to plug the pandemic-induced gap in new arrivals amid persistent employee shortages in industries reliant on foreigners.

Nearly a year after the US reopened its borders, non-American workers are flowing in at a pace just under that last seen in 2019, an analysis by University of California at Davis economics professor Giovanni Peri showed. But as of June, there were about 1.7 million fewer working-age immigrants living in the US than there would have been if immigration had continued at its pre-2020 pace, he said. About 600,000 of those are college-educated.

The once-in-a-generation labor deficit has seen US employers struggle to hire and keep employees over the past two years, with those in construction, hospitality, and services — which all historically rely on a more significant proportion of immigrants — feeling more pain. The shortage of both US-born and foreign workers has also triggered higher wages across industries, adding more fuel to the hottest inflation seen in about four decades.

The Federal Reserve is raising interest rates aggressively to help lower spending on goods and services and reduce demand for workers, which could in turn soften wage growth.

Hiring needs are moderating as a result of the tighter policy but remain far above the supply of available workers. The number of US job openings dropped in August to 10.1 million but is still high, resulting in about 1.7 positions for every unemployed person, Labor Department data showed.

If not addressed, the immigration and staffing shortfall could lead to reduced business investment and slower US growth, said Pia Orrenius, a senior economist with the Federal Reserve Bank of Dallas.

SOURCE: Jonelle Marte and Augusta Saraiva, Bloomberg News, October 5, 2022: https://www.bloomberg.com/news/articles/2022-10-05/us-immigration-rebounds-but-remains-far-from-plugging-labor-gaps


USCIS Rule on Public Charge Inadmissibility Will Go into Effect in December

U.S. Citizenship and Immigration Services (USCIS) announced a final rule on the public charge ground of inadmissibility. The new rule will go into effect on December 23, 2022, and will apply to applications postmarked on or after that date. Until then, USCIS will continue to apply the 1999 Interim Field Guidance on public charge inadmissibility, as it has done since March 9, 2021. Under the new rule, USCIS formalizes an approach that allows it to follow the law, protect the country’s interests, and address the fear and confusion that previously led eligible noncitizens to disenroll from public benefits (even when they were not subject to the public charge ground).

Under the final rule, USCIS will determine if a noncitizen is likely to become a public charge based on the following:

· Age, health, family status, financial status (including assets and resources), education, and skills;

· Whether a sponsor has submitted Form I-864, Affidavit of Support Under Section 213A of the INA, for the noncitizen (when required); and

· Whether the noncitizen has received or is receiving:

o Supplemental Security Income (SSI);

o Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);

o State, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or

o Long-term institutionalization at government expense.

Under the new rule, USCIS will NOT consider the following when making a public charge determination:

· Benefits received by the noncitizen’s family members;

· Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs benefits;

· Children’s Health Insurance Program (CHIP) benefits;

· Medicaid (other than long-term institutionalization at government expense);

· Housing benefits;

· Any benefits related to immunizations or testing for communicable diseases; or

· Other supplemental or special-purpose benefits.

Under U.S. immigration law, public charge inadmissibility does not affect or apply to some applicants. That means the new rule will not affect a noncitizen if she or he is:

· Already a lawful permanent resident (in most cases);

· A refugee;

· An asylee;

· Applying for or re-registering for Temporary Protected Status;

· A special immigration juvenile; or

· Applying for or have T, U, or Violence Against Women Act (VAWA) status.

SOURCE: Federal Register: https://www.federalregister.gov/documents/2022/09/09/2022-18867/public-charge-ground-of-inadmissibility

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