U.S. Immigration Updates – October 2023 Monthly Review – Work Visas


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Certain Renewal Applicants for Work Authorization Qualify for
Automatic 180-Day Extension

U.S. Citizenship and Immigration Services (USCIS) announced that
certain renewal applicants who have filed Form I-765, Application
for Employment Authorization, qualify for an automatic extension of
their expiring work authorization and/or employment authorization
documents (EADs) while their renewal applications are pending. As
of October 27, 2023, those who are eligible “will receive
180-day extensions in accordance with existing regulations,
including those who have applied for or have received Temporary
Protected Status or asylum,” USCIS said.

The agency noted that in May 2022, it announced a temporary final rule (TFR) that
increased the automatic extension period for EADs available to
certain EAD renewal applicants from up to 180 days to up to 540
days. This new change is not retroactive, USCIS said; “all
previous up to 540-day automatic extensions will remain in
place.”

USCIS said it is determining whether there is a need for a new
regulatory action similar to the May 2022 TFR.

As announced in the 2022 TFR, automatic extensions of employment
authorization and EAD validity will be the original up to 180-day
period for eligible applicants who timely file a Form I-765 renewal
application on or after October 27, 2023. For those who received an
increased automatic extension period under the TFR, the increased
automatic extension will end when they receive a final decision on
their renewal application or when the up to 540-day period expires
(counted from the expiration date of the employment authorization
and/or their EAD), whichever comes earlier.

USCIS also recently published a Policy Manual update
increasing the maximum EAD validity period to five years for
initial and renewal applications approved on or after September 27,
2023, for the following categories:

  • Certain noncitizens who are employment-authorized incident to
    status or circumstance, including those admitted as refugees,
    paroled as refugees, or granted asylum, and recipients of
    withholding of removal; and

  • Certain noncitizens who must apply for employment
    authorization, including applicants for asylum and withholding of
    removal, adjustment of status, and suspension of deportation or
    cancellation of removal.

SOURCES: USCIS alert (Oct. 27, 2023).

USCIS Updates Guidance on EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) announced on
October 26, 2023, that it is “updating the USCIS Policy Manual
with new guidance on the EB-5 Regional Center Program and new
content on regional center designation and obligations, project
applications, and direct and third-party promoters.”

USCIS said the update incorporates changes from the EB-5 Reform
and Integrity Act of 2022 into the Policy Manual, building on an
initial update that incorporated such changes on October 6,
2022.

Among other things, USCIS reorganized Part G, Volume 6, updated
the chapter on adjudication of investor petitions for
classification, and added new content on regional center
designations and obligations, project applications, and direct and
third-party promoters, including registration. USCIS said further
updates to EB-5 guidance in the Policy Manual are forthcoming, and
will include revisions to Chapter 5, Removal of Conditions.

USCIS said the new guidance “is effective immediately and
is controlling, and supersedes any related prior
guidance.”

SOURCE: USCIS alert (Oct. 26, 2023)

USCIS Allows Additional 30 Days for Comments on E-Verify
NextGen and Revisions to E-Verify

U.S. Citizenship and Immigration Services (USCIS) is allowing 30
additional days for public comments on several information
collection notices related to E-Verify.

USCIS is allowing until November 27, 2023, for public comments
on E-Verify NextGen. The information collection
notice was previously published in June, allowing for a 60-day
public comment period. USCIS received six comments in connection
with the 60-day notice.

E-Verify NextGen, I–9NG, “was developed as a
demonstration project to further integrate the Form I-9, Employment
Eligibility Verification, process with the E-Verify electronic
employment eligibility confirmation process to create a more secure
and less burdensome employment eligibility verification process
overall for employees and employers,” USCIS said.

USCIS is allowing until November 24, 2023, for public comments
on proposed revisions to the E-Verify program.
That notice was previously published in June also, allowing for a
60-day public comment period. USCIS received two comments.

SOURCE: USCIS notice (E-Verify NextGen), 88 Fed. Reg.
73610 (Oct. 26, 2023).

State Department Plans to Resume Renewal of H-1B Nonimmigrant
Visas in the United States for Certain Applicants

The Department of State (DOS) intends to resume the renewal of
H-1B nonimmigrant visas in the United States for certain applicants
beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and
Budget for review
. Currently, the State Department can only
process visa applications at its embassies and consular posts
abroad and does not offer a stateside option for visa issuance.

Although full details have not yet been released, according to
reports, in its initial phase the stateside visa renewal program is
expected to be limited to H-1B principal visa applicants (not
dependents). There will be additional eligibility requirements for
participation (for example, the applicant must be renewing a visa
issued within a limited number of years before the renewal
submission), and the program will be voluntary — applicants
will still have the option of obtaining visas abroad through
regular processing.

The pilot program is expected to be limited to nationals of
countries whose visas are not subject to reciprocity fees. India
will be eligible for participation in the pilot program, as there
is no applicable reciprocity fee. These fees vary in amount and are
meant to equalize the cost of a visa for each country’s
nationals with the fees charged by that country to U.S. nationals
seeking comparable visas. Because the fees vary and must be
refunded if a visa cannot be issued, including them in the pilot
program could have delayed the rollout.

The program is intended to help reduce consular delays, which
were exacerbated by the COVID-19 pandemic and have continued in
certain locations. The pilot program will test the operational
capacity of the stateside renewal program. Availability is expected
to be capped at 20,000 applicants. If successful, the program will
expand to other employment-based visa categories following its
initial launch, although full implementation is likely to take some
time.

SOURCE: US Office of Management and Budget,
Office of Information and Regulatory Affairs: Pending EO 12866 Regulatory Review
(reginfo.gov)

Department of Homeland Security Plan to Amend H-1B Regulations
Governing Specialty Occupation Workers

The Department of Homeland Security (DHS) plans to amend its
H-1B regulations “governing H–1B specialty occupation
workers to modernize and improve the efficiency of the H–1B
program, add benefits and flexibilities, and improve integrity
measures.” The notice of proposed rulemaking (NPRM), expected
to be published in the Federal Register on October 23, 2023, would
also “narrowly impact other nonimmigrant classifications,
including H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.” A
60-day public comment period starts following publication of the
NPRM in the Federal Register.

Below is a non-exhaustive summary of highlights. DHS proposes
to:

  • Revise the regulatory definition and criteria for a
    “specialty occupation” and clarify that a position may
    allow a range of degrees if they have a direct relationship to the
    duties of the position;

  • Clarify when an amended or new petition must be filed due to a
    change in an H-1B worker’s place of employment;

  • Codify and clarify that if there has been no material change in
    the underlying facts, adjudicators generally should defer to a
    prior determination involving the same parties and underlying
    facts;

  • Require evidence of maintenance of status to be included with
    the petition if a beneficiary is seeking an extension or amendment
    of stay;

  • Change the definition of “nonprofit research
    organization” and “governmental research
    organization” by replacing “primarily engaged” and
    “primary mission” with “fundamental activity”
    to permit a nonprofit entity or governmental research organization
    that conducts research as a fundamental activity, but is not
    primarily engaged in research or where research is not a primary
    mission, to meet the definition of a nonprofit research
    entity;

  • Provide flexibilities, such as automatically extending the
    duration of F-1 status, and any employment authorization granted
    under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the
    relevant fiscal year, rather than October 1 of the same fiscal
    year, to avoid disruptions in lawful status and employment
    authorization for F-1 students changing their status to H-1B;

  • Clarify the requirements regarding the requested employment
    start date on H–1B cap-subject petitions to permit filing
    with requested start dates that are after October 1 of the relevant
    fiscal year;

  • Select H-1B cap registrations by unique beneficiary rather than
    by registration;

  • Clarify that related entities are prohibited from submitting
    multiple registrations for the same beneficiary;

  • Clarify that beneficiary-owners may be eligible for H-1B
    status, while setting reasonable conditions for when the
    beneficiary owns a controlling interest in the petitioning entity;
    and

  • Clarify that if an H-1B worker will be staffed to a third
    party, meaning they will be contracted to fill a position in the
    third party’s organization, it is the requirements of that
    third party, and not the petitioner, that are most relevant when
    determining whether the position is a specialty occupation.

SOURCE: USCIS notice of proposed rulemaking (advance copy), 88 Fed. Reg. 72870 (Oct. 23,
2023).

USCIS Clarifies Guidance on L-1 Petitions for Intracompany
Transferees Filed by Sole Proprietorships and on Blanket L
Petitions

On October 20, 2023, U.S. Citizenship and Immigration Services
(USCIS) issued policy guidance to clarify that a sole
proprietorship may not file an L-1 petition on behalf of its owner
because the sole proprietorship does not exist as a distinct legal
entity separate and apart from the owner.

The USCIS guidance further clarifies that an L-1 petition where
the owner and beneficiary are the same constitutes an impermissible
self-petition. The update also clarifies guidance regarding blanket
L petitions, noting that the failure to timely file an extension of
the blanket petition does not trigger the three-year waiting period
before another blanket petition may be filed.

SOURCE: USCIS notice of USCIS Policy Alert, PA-2023-29 (Oct. 20,
2023)

USCIS Provides Guidance on Interpretation of EB-5 Program
Changes

U.S. Citizenship and Immigration Services (USCIS) provided
additional guidance on its interpretation of changes to the EB-5
program made by the EB-5 Reform and Integrity Act of 2022 (RIA),
specifically the required investment timeframe and how USCIS treats
investors who are associated with a terminated regional center.

USCIS said that because of the changes made by the RIA,
investors filing petitions for classification “no longer need
to sustain their investment throughout their conditional residence,
which may be many years in the future and dependent on factors
outside the investor’s control such as visa availability.”
Instead, USCIS said:

The Immigration and Nationality Act (INA) now requires only that
the investment must be expected to remain invested for at least two
years, provided job creation requirements have been met. Although
the statute does not explicitly specify when the two-year period
under INA § 203(b)(5)(A)(i) begins, we interpret the start
date as the date the requisite amount of qualifying investment is
made. In other words, we will use the date the investment was
contributed to the new commercial enterprise and placed at risk in
accordance with applicable requirements, including being made
available to the job-creating entity. If invested more than two
years before filing the I-526 or I-526E petition, the investment
should generally still be maintained at the time the I-526 or
I-526E is properly filed so we can appropriately evaluate
eligibility.

Because the statute does not explicitly specify whether it
applies only to post-RIA investors or also to pre-RIA investors,
USCIS said it interprets INA § 203(b)(5)(M) to apply to
pre-RIA investors associated with a terminated regional center.
USCIS “will extend the deadline for pre-RIA investors to
respond to a regional center termination notification until the
agency adjudicates their Form I-526 petition. If needed, we may
issue a Request for Evidence or Notice of Intent to Deny for the
investor to establish continued eligibility.” USCIS also said
it “will extend the deadline for pre-RIA investors to respond
to a regional center termination notification until the agency
adjudicates their Form I-526 petition. If needed, we may issue a
Request for Evidence or Notice of Intent to Deny for the investor
to establish continued eligibility.”

SOURCE: USCIS Newsroom: Oct. 11, 2023.

USCIS Launches New Online Change of Address Tool

U.S. Citizenship and Immigration Services (USCIS) has launched a
new Enterprise Change of Address (E-COA) self-service
tool
to allow those with pending applications, petitions, or
requests to update their addresses with USCIS online.

USCIS said that with E-COA, most individuals with a USCIS online
account
can update their mailing and physical addresses with
USCIS for pending applications, petitions, or requests in a single
place, eliminating the need to update the address in multiple
places; fill out a paper AR-11, Alien’s Change of Address Card;
call the Contact Center; or visit a USCIS Field or Asylum Office.
E-COA will automate address changes for almost all form types. The
exceptions are listed at uscis.gov/addresschange.

To use the E-COA tool, individuals need a USCIS online account,
and must enter their last name, date of birth, and new physical and
mailing addresses. Individuals are also encouraged to include
information about their pending application, petition, or
request.

Changing your address with the U.S. Postal Service (USPS) will
not change your address with USCIS. Please update your information
with both USCIS and USPS. Address changes made through E-COA will
not affect Freedom of Information Act (FOIA) or Privacy Act (PA)
requests. If you need to change your address for a FOIA or PA
request, please email FOIAPAQuestions@uscis.dhs.gov.

SOURCE: USCIS Newsroom: Oct. 12, 2023.

State Department Restores Previous Version of Regulation
Governing Public Change Grounds of Visa Ineligibility

The Department of State (DOS) announced on October 6, 2023, that
its regulation governing the public charge grounds of visa
ineligibility has been restored to the version that was in place
before October 11, 2019.

On October 11, 2019, DOS published an interim final rule (IFR)
that substantially revised the regulations governing the grounds.
The IFR was enjoined by the District Court for the Southern
District of New York on July 29, 2020, DOS explained. Since that
time, the agency has used Foreign Affairs Manual (FAM)
guidance that was in place before publication of the IFR.

“The IFR was intended to align with the standards then
applied by the U.S. Department of Homeland Security (DHS) to
determine inadmissibility on public charge grounds. In 2022, DHS
published a new Final Rule. As such, the IFR no longer meets the
policy aim of consistency with DHS standards. In reverting to
regulatory text that was in place prior to the publication of the
IFR, the Department is again more closely aligned with the current
DHS standards,” DOS explained.

SOURCE: DOS news release (Oct. 6, 2023)

State Department Announces U.S. Passport Processing Times,
Tips

The Department of State (DOS) announced that U.S. passport processing times
have fluctuated several times in 2023. As of October 2, 2023,
routine applications were being processed in eight to 11 weeks, and
expedited applications in five to seven weeks. Processing times do
not include mailing time.

DOS said that between October 2022 and September 2023, DOS
issued more than 24 million passport books and cards, the most in
U.S. history. DOS encourages applicants to check the status of their passport application
and sign up for updates via email.

DOS also released the following tips for U.S. passport applicants:

  1. If you’re renewing your application, submit your most
    recent passport with your application. Sign and date Form
    DS-82.

  2. Complete all sections of your form including entering your
    correct Social Security number. Do not leave anything blank. If
    you’re applying for the first time or with your child under age
    16, wait to sign the form until you are instructed to do so. If
    you’re renewing by mail, sign and date the form on your
    own.

  3. Closely follow the passport photo requirements.

  4. Provide evidence of U.S. citizenship.

  5. If your current name is not the same as the name on your most
    recent passport, include your name change document (such as
    marriage certificate, divorce decree, or court order).

SOURCE: Important Updates on Passport Processing
(state.gov)

Biometric Services Fee Exempted for All Form I-539
Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on
September 25, 2023, that it is exempting the biometric services fee
for Form I-539, Application to Extend/Change Nonimmigrant Status.
Beginning October 1, 2023, applicants do not need to pay the $85
biometric services fee.

Certain filers who filed before October 1 will still be
scheduled for, and should attend, an ASC appointment. In most
cases, after October 1, applicants will not be scheduled to attend
a biometric services appointment. However, if USCIS determines that
biometrics are required, the applicant will receive a notice with
information about appearing for their biometric services
appointment, the agency noted.

USCIS warned:

If you mistakenly submit the biometric services fee and the
payment is submitted separately from the Form I-539 fee, we will
return the biometric services fee and accept the Form I-539. If you
mistakenly submit the biometric services fee and the payment is
combined with a paper-based Form I-539 filing fee, this is
considered an incorrect filing and we will reject the Form I-539.
If you mistakenly authorize a credit card payment that combines the
biometric services fee with the Form I-539 application fee, we will
accept the application, and only charge the application fee.

USCIS said the biometric services fee exemption will apply to
all applicants filing on or after October 1, 2023, including those
applicants filing Form I-539 requesting an extension of stay in, or
change of status to, H-4, L-2, or E nonimmigrant for whom USCIS had
previously suspended the biometrics requirement through September
30, 2023.

SOURCE: USCIS alert (Sept. 27, 2023)

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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