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The Department of Homeland Security has created a streamlined process for considering deferred action requests from noncitizen workers who are victims of, or witnesses to, labor violations.
Key Points:
Additional Information: The new process is part of DHS’ worksite enforcement strategy announced in October 2021. As part of the strategy, DHS directed U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services to “update policies to enhance the Department’s impact in supporting the enforcement of employment and labor standards.” More information, including an FAQ page, is available here on the DHS website.
This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The State Department released the February Visa Bulletin, showing no movement for priority-date cutoffs for Final Action Dates and Dates for Filing charts EB-1, EB-2 and EB-3 categories.
Final Action Dates: Key Movements
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Dates for Filing: Key Movements
Dates for Filing for Employment-Based Preference Cases:
Additional Information: U.S. Citizenship and Immigration Services has not yet announced whether it will use the Final Action Dates or Dates for Filing chart in February. BAL will update clients once USCIS announces which chart will be used.
U.S. Citizenship and Immigration Services announced Thursday that it would soon launch the final phase of its premium processing expansion for Form I-140 petitions under the EB-1 and EB-2 classifications.
Additional Information: USCIS is taking a phased approach to expanding premium processing as part of a broader effort to reduce backlogs and provide relief to foreign nationals affected by processing delays.
USCIS said it would further expand premium processing in March to certain F-1 students seeking Optional Practical Training (OPT) and F-1 students seeking STEM OPT extensions who have pending Forms I-765, Application for Employment Authorization. The agency plans to extend premium processing in April to OPT and F-1 students seeking STEM OPT extensions filing initial Forms I-765.
USCIS also said it is working toward expanding premium processing in May to certain student and exchange visitors with pending Forms I-539, Application to Extend/Change Nonimmigrant Status and in June to student and exchange visitors filing initial Forms I-539.
BAL Analysis: The extension of premium processing to additional benefit categories will shorten processing times for eligible applicants who pay the applicable fee. USCIS said it would provide more detailed information next month regarding the OPT/STEM OPT expansions in March and April. BAL will provide updates as information becomes available.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The U.S. Department of Labor’s Office of Foreign Labor Certification has published assignment groups for employers seeking cap-subject H-2B visas for workers with April 1 start dates.
BAL Analysis: The number of applications demonstrates the ongoing popularity of the H-2B program. The limited number of visas means that even with the supplemental allotment, some employers will not be able to hire workers for whom they had submitted applications. Employers are encouraged to work closely with BAL on H-2B strategies, including the possibility of recruiting workers from El Salvador, Guatemala, Haiti and Honduras. BAL will continue following H-2B developments and will provide updates as information becomes available.
The U.S. State Department launched a form yesterday for Afghan parolees to file to seek family reunification.
Additional Information: Afghan nationals can check this website, the U.S. Mission to Afghanistan website or the U.S. Citizenship and Immigration Services website for information on how they can seek reunification.
BAL Analysis: The State Department launched the Afghan family reunification page to help Afghan families that are still separated and seeking reunification. Parolees should review the requirements listed on Form DS-4317 before filing to seek family reunification. BAL will continue to follow developments specifically affecting Afghan nationals and will provide updates as information becomes available.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
U.S. companies laid off tens of thousands of employees in the final months of 2022 as employers tightened their belts amid fears of an economic downturn. While layoffs are always challenging, they are particularly difficult for nonimmigrant visa holders whose lawful presence in the United States is tied to their employment.
Regulations provide up to 60 days as a grace period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications (and their dependents) if they are terminated from previously approved employment. Visa holders cannot work during this time but remain eligible to change employers or change immigration status.
As outlined on a recently launched U.S. Citizenship and Immigration Services web page, options for nonimmigrants may include:
Not all of these options include work authorization. For example, B-1 and B-2 visitor visa holders are barred from “performing skilled or unskilled labor” in the United States. F-1 students may engage in limited employment. Dependents are permitted to work incident to status in some cases, but are barred from work authorization in others.
The post-termination grace period ends 60 days after termination or until the end of the previously authorized validity period, whichever is shorter. A petition to change employers or change status stops the accrual of unlawful presence until the petition is adjudicated. H-1B workers can begin working for a new employer as soon as a change of employer petition is filed. More information is available on USCIS’ new Options for Nonimmigrant Workers Following Termination of Employment page.
BAL Analysis: Layoffs pose particular challenges for many nonimmigrant visa holders. While regulations provide a 60-day grace period, this is a tight window to find new employment or another basis to remain in the country. Individuals who lose a job are encouraged to seek immigration counsel to weigh their visa options and help focus their job search. BAL will continue following this issue and will provide updates as information becomes available.
Federal agencies have published their semiannual regulatory agenda, providing an indication of the Biden administration’s immigration priorities in the coming year.
Most of the proposed regulations were listed on previous regulatory agendas, though agency timelines have been adjusted in some cases. Highlights include:
The regulatory agenda indicates the agency is targeting October 2023 to publish the proposal; the previous agenda had targeted May 2023.
Additional Information: Other items on the regulatory agenda include a proposal to amend regulations governing adjustment of status (target publication July 2023) and a final rule on State Department’s interview wavier policy (target publication April 2023). The agenda no longer includes a Trump-era proposal to eliminate the “B-1 in lieu of H” classification. The Trump administration published a proposed rule to eliminate the classification but never published a final rule. The State Department previously said it was “reconsidering” the rule and appears to have abandoned it for now.
The full regulatory agenda is available here.
BAL Analysis: While the changes the administration has outlined would have significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period during which members of the public may submit feedback. BAL will provide updates on individual regulations as they move through the rulemaking process.
President Joe Biden announced a new program Thursday to allow nationals of Cuba, Haiti and Nicaragua to travel by air to the United States and apply for work authorization.
Biden announced the program in conjunction with a package of border enforcement plans. The Department of Homeland Security said it is based on similar programs for Venezuelans and Ukrainians launched last year.
Additional Information: DHS said the forthcoming border measures were designed to “limit irregular migration” and create “safe and orderly processes for people fleeing humanitarian crises” to come to the United States. The agency urged individuals to apply for travel authorization online and said they should not approach the U.S.-Mexico border to apply. More information is available on USCIS’ Processes for Cubans, Haitians, Nicaraguans, and Venezuelans page.
The U.S. Embassy in Havana recently resumed all visa services for immigrant visa categories.
Additional Information: More information is available on the U.S. Embassy in Havana’s website.
BAL Analysis: The U.S. Embassy in Havana’s resumption of full immigrant visa services for Cuban nationals is welcome news, as many of these services have been suspended since 2017 amid a series of unexplained health incidents termed “Havana Syndrome.” The State Department said resumption is part of the broader expansion of the Embassy’s functions “to ensure safe, legal and orderly” immigration options for Cuban nationals. BAL will provide updates as information becomes available.