The Department of Homeland Security (DHS) announced last week that it would nearly double the number of H-2B visas available this fiscal year.

Key Points:

• DHS, in consultation with the Department of Labor (DOL), said it would issue a regulation, making an additional 64,716 H-2B temporary nonagricultural worker visas available for the 2023 fiscal year, which began Oct. 1. The additional allotment will come on top of the 66,000 cap-subject H-2B visas that are typically available each fiscal year.
• The H-2B supplemental includes an allocation of 20,000 visas to workers from El Salvador, Guatemala, Haiti and Honduras. Officials said the additional allotment is consistent with President Joe Biden’s commitment with Mexican President López Obrador to broaden opportunities for seasonal work and “ensure that migration is a choice and not a necessity.”
• DHS and DOL also said they would create a new Worker Protection Taskforce designed to help ensure that employers are recruiting U.S. workers for jobs, as required, and that foreign workers are not exploited. DHS said that in the coming months, it would issue a proposed rule to strengthen protections for H-2B workers.

Additional Information: The H-2B program allows employers to hire foreign nationals to perform nonagricultural seasonal or temporary work in the U.S. DHS makes 66,000 H-2B visas available annually for workers in jobs that are subject to the H-2B cap. Half of these visas are available in the first half of the fiscal year, beginning Oct. 1, and half are available in the second half, beginning April 1. In some years, DHS makes additional visas available.

In announcing the supplemental allotment for FY 2023, DHS said that by making the additional visas available at the outset of FY 2023, it is “acting swiftly to address employers’ needs for additional seasonal workers.” The agency also said the additional allotment would reduce irregular migration. BAL will continue following H-2B program developments and will provide updates as information becomes available.

This alert has been provided by 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.

A federal judge in Texas confirmed Friday that an injunction that prevents the government from adjudicating first-time requests for Deferred Action for Childhood Arrivals (DACA) would apply to a new regulation that the Biden administration published in August.

Key Points:

• The DACA regulation will not take effect as planned on Oct. 31, to allow initial applications.
• The DACA status quo remains unchanged. At this time, DHS continues to adjudicate renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients; the agency remains prohibited from granting initial DACA requests and accompanying requests for employment authorization.

Background: In July 2021, District Court Judge Andrew Hanen ruled that DHS did not follow proper procedures when it created DACA in 2012. Last week, the Fifth Circuit Court of Appeals upheld Judge Hanen’s ruling but also sent the case back to his court to consider the legality of the new DACA regulation, which the Biden administration drafted to “preserve and fortify” the program. The Fifth Circuit left in place a partial stay that allows DHS to adjudicate renewals but enjoins the agency from adjudicating first-time requests.

After meeting with the parties, Judge Andrew Hanen issued a brief order Friday confirming the injunction would apply to not only the 2012 memorandum that created DACA but also the 2022 regulation. This means the status quo will remain unchanged pending a further ruling from the court.

BAL Analysis: Today’s order does not change the status quo for current DACA beneficiaries. Given the uncertainty around the litigation, eligible individuals are urged to renew their DACA and related employment authorization as soon as possible. BAL will continue to monitor the ongoing litigation and provide updates on important developments related to DACA. For more information, visit our DACA Resource Center here.

This alert has been provided by 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. Department of Homeland Security (DHS) has announced a new process to allow up to 24,000 qualifying Venezuelans to safely travel to the U.S. via parole.

Key Points:

• As of Oct. 12, qualifying Venezuelan nationals will be able to apply to temporarily live in the U.S. and apply for work authorization if they:
  • Have a supporter in the U.S. who will provide financial and other support.
  • Pass biometric and biographic national security and public safety screening and vetting.
  • Have received required vaccinations and meet other health requirements.
• Venezuelan nationals will be ineligible for the new entry process if they:
  • Have been ordered to be removed from the U.S. in the past five years.
  • Crossed between ports of entry without authorization after Oct. 12.
  • Irregularly entered Mexico or Panama after Oct. 12.
  • Are a permanent resident or dual national of any country other than Venezuela or hold refugee status in another country.
• Venezuelans should not travel to Mexico to enter the U.S., DHS stated. Venezuelan nationals who cross the southern between ports of entry will be returned to Mexico.
• U.S. Citizenship and Immigration Services (USCIS) will provide additional information on the new entry process for Venezuelan nationals on this website in the coming days.

BAL Analysis: DHS introduced the new entry process for Venezuelan nationals to reduce the number of people arriving at the U.S.’s southwest border and create a safer process for those fleeing the humanitarian and economic crisis in Venezuela. DHS described this process as “derived from the success of the Uniting for Ukraine (U4U) program.”

This alert has been provided by 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.

U.S. Customs and Border Protection (CBP) has imposed arrival restrictions on those who have recently been in Uganda.

Key Points:

• As of Oct. 11, travelers who are coming from or have been in Uganda within 21 days of intended arrival in the U.S. must enter the country through one of the following airports:
  • Chicago O’Hare International Airport (ORD), Illinois.
  • Hartsfield-Jackson Atlanta International Airport (ATL), Georgia.
  • John F. Kennedy International Airport (JFK), New York.
  • Newark Liberty International Airport (EWR), New Jersey.
  • Washington-Dulles International Airport (IAD), Virginia.
• Those who have recently been in Uganda will undergo additional health screening upon arrival, including temperature checks and completing health questionnaires, before they can continue to their final destination.
• The enhanced screening applies to all passengers, including U.S. citizens, lawful permanent residents, and visa holders (including Diplomatic and Official visas).
• Crew and flights carrying only cargo are exempt from the arrival restrictions.

Additional Information: The restrictions were imposed of a recent outbreak of Ebola in Uganda. No cases have been reported in the U.S. More information regarding the Ebola outbreak is available on the U.S. Embassy in Uganda’s website and the Centers for Disease Control and Prevention (CDC) website.

BAL Analysis: Travelers of all nationalities who have been in Uganda within 21 days of intended arrival in the U.S. should expect delays when entering the country.

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.

U.S. Immigration and Customs Enforcement (ICE) announced this week that it would extend temporary Form I-9 flexibilities that were first implemented at the beginning of the COVID-19 pandemic and subsequently modified and extended in March 2021.

Key Points:

• ICE extended the temporary measures through July 31, 2023. The guidance had been scheduled to expire Oct. 31.
• The guidance temporarily allows employers operating fully remotely due to COVID-19 precautions to conduct verification of employee documents virtually, e.g., by using fax, email or video link, for the purpose of Form I-9 employment eligibility verification procedures. Employers that follow the virtual procedures must comply with certain guidelines when “normal operations” resume, including conducting physical inspections of documents that were viewed remotely within three business days.
• The agency will continue to apply the guidance previously issued for employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions. The guidance temporarily exempts these employees from physical inspection requirements until they undertake non-remote employment on a “regular, consistent, or predictable basis” or until the extension of I-9 flexibilities ends, whichever is earlier. It is important to note that this guidance does not apply to employees who are working remotely for reasons not related to COVID-19.
• Employers should consult the original March 2020 ICE guidance and the updated policy from March 2021, along with this week’s announcement for eligibility requirements and information on how to obtain, remotely inspect and retain copies of identity and employment eligibility documents. U.S. Citizenship and Immigration Services (USCIS) has also provided guidance on how to properly complete and annotate the Form I-9.
• Employers should monitor the Department of Homeland Security (DHS) and ICE websites for additional information about the temporary flexibilities.

Additional Information: ICE introduced the temporary measures in March 2020 and has extended them numerous times since, most recently in April. DHS proposed to formalize its authority to allow optional alternatives to physical examination for certain employers in August. The agency is currently accepting public feedback on the proposal through Oct. 17.

USCIS has confirmed that employers should continue using the Form I‑9, Employment Eligibility Verification, after its expiration date of Oct. 31, 2022, until further notice. DHS will publish a Federal Register notice to announce the new version of the Form I‑9 once it becomes available. BAL will provide updates as new information becomes available.

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 Labor Department has posted updated processing times for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.

PERM Processing: As of Sept. 30, the department was adjudicating applications filed in February and earlier, conducting audit reviews on applications filed in November and earlier, and reviewing appeals for reconsideration filed in May and earlier.

Average PERM processing times:

• Adjudication – 242 days.
• Audit review – 358 days.

PWD Processing: As of Sept. 30, the National Prevailing Wage Center was processing PWD requests filed in January and earlier for H-1B OES and PERM OES cases, February and earlier for H-1B non-OES cases, and December and earlier for PERM non-OES cases, according to the Labor Department. Redeterminations were being considered on appeals filed in April and earlier for H-1B cases and PERM cases. Center director reviews were being conducted for PERM cases filed in July and earlier.

BAL Analysis: BAL’s internal case tracking mostly consistent with the Labor Department’s published processing times. BAL is seeing slightly faster PWD issuances for PERM OES cases. BAL is seeing approvals for PERM applications filed in February and earlier and is starting to see PWDs for requests filed in January and earlier for H-1B OES cases, February and earlier for H-1B non-OES cases, March and earlier for PERM OES cases and December and earlier for PERM non-OES cases.

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. Embassy in Qatar has announced that it will be closed for routine American Citizens Services during the 2022 World Cup.

Key Points:

• The U.S. Embassy in Qatar will be closed from Nov. 13, 2022, to Jan. 2, 2023, for routine American Citizens Services, including passport and notary services.
• The U.S. Embassy in Qatar will not process any passport renewals for those traveling for tourism purposes during the World Cup.
• U.S. citizens over the age of 18 may not need an appointment to renew their passport at the U.S. Embassy in Qatar. Individuals should use this tool to determine if they qualify or to book an appointment for minor children or themselves.
• Emergency appointments and services will remain available at the U.S. Embassy in Qatar during the closure.

Additional Information: Those who are traveling to Qatar for the World Cup are reminded that they must obtain a Hayya Card, hold a valid recruitment visa or work permit or be traveling for humanitarian reasons to enter the country. To apply for the Hayya Card, foreign nationals can download the Hayya to Qatar 2022 mobile application or visit this website. U.S. citizens are encouraged to enroll in the Smart Traveler Enrollment Program (STEP) if traveling to Qatar.

BAL Analysis: U.S. citizens who are living in Qatar and are in need of a new passport should renew their passport as soon as possible to avoid delays and complications. The U.S. Embassy in Qatar will continue to provide updated guidance for U.S. citizens traveling to the country for the 2022 World Cup. BAL will provide more information as it becomes available.

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 State Department released the November Visa Bulletin, showing no movement in key employment-based categories next month. U.S. Citizenship and Immigration Services (USCIS) announced it would use the Dates for Filing chart for employment-based filings.

Key Updates in Dates for Filing:

EB-1

• All countries under EB-1 will remain current.

EB-2

• China EB-2 will remain at July 8, 2019.
• India EB-2 will remain at May 1, 2012.
• All other countries under EB-2 will remain current.

EB-3

• China EB-3 will remain at July 15, 2018.
• India EB-3 will remain at July 1, 2012.
• All other countries under EB-3 will remain current.

Dates for Filing for Employment-Based Preference Cases:

Preference	All Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines
EB-1	Current	Current	Current	Current	Current	Current
EB-2	Current	July 8, 2019	Current	May 1, 2012	Current	Current
EB-3	Current	July 15, 2018	Current	July 1, 2012	Current	Current

Additional Information: USCIS announced it would use the Dates for Filing chart for employment-based filings in November. BAL will continue following the Visa Bulletin and will provide updates as information becomes available.

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. Court of Appeals for the Fifth Circuit on Wednesday held that the 2012 memorandum that created Deferred Action for Childhood Arrivals (DACA) was unlawful. However, the court sent the case back to a lower court, asking a trial judge to consider the legality of DACA regulations the Biden administration issued in late August.

Key Points:

• The Obama administration issued the memorandum that created DACA in June 2012, shielding hundreds of thousands of “Dreamers” (immigrants who were unlawfully present in the U.S. after being brought to the country as children) from deportation and allowing them to apply for work authorization.
• In July 2021, a federal judge in Texas ruled that the Department of Homeland Security (DHS) did not follow proper procedures when establishing the program. The Justice Department appealed the ruling. The Fifth Circuit heard arguments in the case in July.
• In August, the Biden administration published a regulation to “preserve and fortify” DACA, motivated in part to protect the program from legal challenges. The regulation is currently set to take effect Oct. 31 but is subject to litigation.
• The Fifth Circuit concluded in its ruling Wednesday that the district court was correct in vacating the 2012 DACA memorandum. The appellate court also concluded, however, that the district court is in “the best position to review the administrative record” and determine whether this holding properly applies to the 2022 regulation. The appellate court urged the district court “to move this case forward as expeditiously as possible.”
• The ruling does not immediately change the status quo for DACA recipients because the Fifth Circuit left in place a partial stay issued by the lower court. Currently, DHS continues to adjudicate only renewal applications (both DACA and employment authorization) and advance parole requests for existing DACA recipients.

BAL Analysis: Today’s ruling does not change the status quo for current DACA beneficiaries, but given the uncertainty around the litigation, individuals are urged to renew their DACA and related employment authorization as soon as possible. BAL will continue to monitor the ongoing litigation closely and provide updates on important developments related to DACA.

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 State Department opened registration for the Diversity Visa 2024 lottery today. Up to 55,000 diversity immigrant visas will be available to nationals of countries with historically low immigration to the U.S.

Key Points:

• Registration began today, Oct. 5, at noon EDT and closes Nov. 8 at noon EST.
• Applicants must register online by submitting the diversity visa entry form available at the State Department’s e-DV website. Paper applications are not accepted. Entries are limited to one per person; multiple entries render entrants ineligible.
• Lottery winners are selected at random. Registrants are given a confirmation number that they may use to check whether they have been selected starting May 6, 2023, on the E-DV website.
• This year, individuals born in the following countries are ineligible: Bangladesh, Brazil, Canada, China (including Hong Kong), Colombia, the Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, the Philippines, South Korea, the U.K. (except Northern Ireland) and its dependent territories, Venezuela and Vietnam. Those born in Macau and Taiwan are eligible.
• The State Department’s complete instructions are available here.

BAL Analysis: Those interested in registering for the DV-2024 lottery are encouraged to do so early in the registration period. Individuals should beware of scams that frequently target DV lottery registrants. Registrants are reminded that the registration process is free and that the only way to enter the lottery and obtain lottery results is via the State Department’s E-DV website.

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.