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The Department of Homeland Security (DHS) has posted the text of a rule to “preserve and fortify” Deferred Action for Childhood Arrivals (DACA).
Key Points:
Background: The Obama administration created DACA in 2012. Upon taking office, President Joe Biden directed DHS to “preserve and fortify” the program. DHS proposed the DACA regulation in September 2021 and received more than 16,000 comments on the proposal last fall. The final version of the rule cleared White House review last week.
BAL Analysis: While the Biden administration has taken steps to protect DACA, the publication of the rule will not immediately change the status quo. Currently, DHS continues to adjudicate only renewal applications (DACA and employment authorization) and advance parole requests for existing DACA recipients. For more information, please visit BAL’s DACA Resource Center here. BAL continues to review the rule and will provide updates on important developments in the ongoing litigation.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2022 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. State Department is urging U.S. citizens to leave Ukraine immediately as Russia increases its efforts to strike civilian and government facilities.
Additional Information: More information regarding actions U.S. citizens can take to increase their safety is available here.
BAL Analysis: The situation in Ukraine may change with little or no notice and companies with employees in the country are encouraged to follow State Department information and warnings closely.
U.S. Citizenship and Immigration Services (USICS) will hold a webinar next week on “Operation Allies Welcome” (OAW) and ongoing immigration support available to Afghan nationals.
Additional Information: President Joe Biden announced the creation of “Operation Allies Welcome” on Aug. 29, 2021, framing it as a key part of the U.S.’s efforts to support vulnerable Afghans. Since OAW’s creation, the Department of Homeland Security (DHS) has led the effort to help Afghan nationals, including those who worked alongside the U.S. in Afghanistan for the past two decades, to immigrate to the U.S. legally. Recent reporting indicates that the Biden administration is developing a portal to streamline the reunification process for Afghans and their families left behind in Afghanistan. BAL will provide updates as information becomes available.
United States Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated cap for H-1B visas for the 2023 fiscal year. The agency will not conduct a second H-1B registration lottery.
BAL Analysis: USCIS’s announcement confirms that there will not be a second FY 2023 lottery. The agency received a record number of registrations in March, a sign of the ongoing popularity of the H-1B program and the high demand for a limited number of visas. BAL will continue to follow developments related to the H-1B program and will provide updates as information becomes available.
A rule to “preserve and fortify” Deferred Action for Childhood Arrivals (DACA) has cleared White House review.
Background: The Obama administration created DACA in 2012. While the program has strong support from employers, it has been the subject of extensive litigation. DHS crafted the regulation in part to protect the program from legal challenges; however; additional litigation is likely after the regulation is published.
BAL Analysis: Currently, DHS is adjudicating only renewal applications (DACA and employment authorization) and advance parole requests for existing DACA recipients. BAL continues to monitor developments related to DACA and will provide updates as information becomes available. For more information, please visit BAL’s DACA Resource Center here.
In a recent briefing, Julie Stufft, the Deputy Assistant Secretary for Visa Services in the State Department’s Bureau of Consular Affairs, provided an update on visa services, indicating that visa processing times abroad are improving, but that progress varies across visa-adjudicating posts. “The bottom line is that we’re recovering faster than we projected after a near-complete shutdown and freezing of our consular operations overseas during the pandemic,” Stufft said. “But this progress is still uneven across many of our posts overseas and we will need some additional time and tools to resolve wait times everywhere worldwide, which is our goal.”
Background: The COVID-19 pandemic and related staffing issues limited the number of visas the State Department could process at embassies and consulates abroad. This led to a backlog of visa applications, delaying adjudication across visa categories. Early this year, the State Department announced that it would increase hiring to help address the problem.
BAL Analysis: While the State Department is working to address visa backlogs, continued processing delays should be expected. Service levels vary from post to post, and some applicants continue to face extensive delays in scheduling interviews or obtaining their visas.
Strategies for obtaining visas in a timely manner will vary from case to case. For example, the State Department has said that foreign nationals who face delays at their home consulate may be able to travel to a consulate in a third country to obtain services. In practice, this has proved challenging—especially for B1/B2 visa applicants—and third-country nationals often face difficulty getting an appointment. Wait times online may not be reflective of actual wait times for third-country nationals. Expedited services may be available in some cases involving business, medical or humanitarian travel; however, the availability of these services has also varied from post to post.
BAL will continue to monitor efforts to address processing delays and will provide more information as it becomes available. Employers and employees should continue to consult their BAL professional before planning international travel.
Copyright © 2022 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 Department of Homeland Security (DHS) will publish a proposed rule tomorrow that would allow the agency to provide optional alternatives to physical document examination in some scenarios in the Form I-9 process.
Background: U.S. Immigration and Customs Enforcement (ICE) has provided temporary Form I-9 flexibilities that allow for remote document verification in some cases for eligible employers who are operating remotely because of COVID-19. The temporary flexibilities are currently scheduled to expire on Oct. 31. U.S. employers and business coalitions, including BAL, have urged DHS to make remote verification available permanently.
BAL Analysis: While the DHS proposal does not directly authorize remote document examination, it would create a legal structure that would allow the government to use alternative processes in the future. DHS also said it is “exploring alternative options” including making some of the COVID-19 measures permanent. BAL will continue to follow the possible changes on the Form I-9 process and will provide updates as information becomes available.
The Department of Homeland Security (DHS) has updated its COVID-19 vaccination requirements for individuals paroled into the U.S. through the “United for Ukraine” program.
Additional Information: Individuals will not be required to submit an attestation if they qualify for a vaccination exception. More information regarding “Uniting for Ukraine” is available on this DHS website. BAL will continue to follow developments specifically affecting Ukrainian nationals and will provide updates on important immigration updates as information becomes available.
Priority-date cutoffs will remain the same in key employment-based categories next month, according to the Final Action Dates published in State Department’s September Visa Bulletin.
Key Final Action Dates:
EB-1
EB-2
EB-3
Final Action Dates for Employment-Based Preference Cases:
Additional Information: U.S. Citizenship and Immigration Services (USCIS) confirmed it would use the Final Action Dates chart to determine employment-based filing eligibility in September. The Dates for Filing chart will not apply. This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
A proposed rule that would allow the Department of Homeland Security (DHS) to provide optional alternatives to physical document examination in the Form I-9 process has cleared White House Office of Management and Budget (OMB) review.
BAL Analysis: DHS said that the proposed rule would “reduce burdens on employers and employees while maintaining the integrity of the employment verification process.” U.S. employers and business coalitions, including BAL, have urged USCIS to make remote verification available permanently. BAL will continue following the proposal through the regulatory process and will provide updates as information becomes available.