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A proposed rule to increase U.S. Citizenship and Immigration Services (USCIS) fees has been sent to the White House Office of Management and Budget (OMB).
Key Points:
Additional Information: In 2020, DHS published a regulation to increase filing fees, but a court blocked the fees from taking effect. The proposal under OMB review would rescind and replace the 2020 rule. USCIS funding challenges and related staffing issues have contributed to delays across visa categories, and USCIS officials have said they are prioritizing backlog reduction.
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.
Ed Gonzalez, President Joe Biden’s nominee to be director of U.S. Immigration and Customs Enforcement (ICE), has removed himself from consideration for the post.
Additional Information: ICE is the U.S. government’s primary immigration enforcement agency. It has not had a Senate-confirmed director since the Obama administration. The agency is currently led by acting Director Tae D. Johnson, who previously served as ICE’s deputy director. BAL will monitor White House communications for an announcement of a new nominee and will provide information as it becomes available.
A State Department policy that allows some U.S. citizens to return to the U.S. on an expired U.S. passport is set to end June 30.
Background: The expired passport policy was adopted in May 2021. The State Department subsequently extended the policy until June 30.
BAL Analysis: The policy allowing some U.S. citizens to return the U.S. on an expired U.S. passport is set to expire June 30. Passport application processing times remain delayed, though they have improved some in recent months. Individuals in need of a renewed U.S. passport should apply for one as early as possible. Employers and employees should continue to consult their BAL professional before planning any international travel.
The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) provided formal recommendations last week on how U.S. Citizenship and Immigration Services (USCIS) should address its chronic underfunding.
USCIS is almost exclusively funded by service fees, a model that leaves the agency “consistently under-resourced.” according to the Ombudsman. The funding problems make it “nearly impossible (for USCIS) to meet obligations and (inhibits) its ability to quickly address new and emerging circumstances”, the Ombudsman said. The Ombudsman said USCIS should seek legislative or regulatory actions to:
Background: USCIS has long faced funding challenges that have been exacerbated during the COVID-19 pandemic. The problem has exacerbated processing delays across many visa categories. A federal appropriations bill in March provided $275 million in funding for USCIS to address processing backlogs and delays. The Department of Homeland Security (DHS) is also working to publish a proposed rule to “establish new USCIS fees to recover USCIS operating costs.” While USCIS is not likely to adopt all of the Ombudsman’s recommendations, it is required to respond to the recommendations within three months. BAL will continue following USCIS’ efforts to address its funding and processing challenges and will provide updates as information becomes available.
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.
Companies filing H-1B cap petitions for fiscal year 2023 are reminded that the 90-day filing period closes June 30.
Additional Information: USCIS received 483,927 registrations this year, a 56.8% increase over the 308,613 from last year. In each of the last two fiscal years, USCIS has conducted more than one lottery; however, the agency selected more registrations in the initial lottery this year and it is not clear that there will be a second lottery for FY 2023.
BAL Analysis: Companies should work with their BAL professional to ensure that their H-1B cap petitions are filed before the June 30 deadline. Employers may also wish to work with their BAL attorney to consider alternatives for registrations that were not selected in March’s lottery. BAL will continue to monitor whether USCIS will invite more registrants to submit H-1B petitions for FY 2023.
The U.S. Supreme Court dismissed an appeal by a group of states seeking to defend the Trump-era public charge rule, leaving in place a lower court ruling that they could not intervene in the case. U.S. Citizenship and Immigration Services (USCIS) will continue to enforce its pre-Trump public charge rules and pursue rulemaking to formalize longstanding policy.
BAL Analysis: The Supreme Court’s ruling maintains the status quo and means that USCIS will continue not enforcing the 2019 public charge rule. It is important to note that the Court did not weigh in on the legality of the Trump-era rule. In a concurring opinion, Chief Justice John Roberts emphasized that the Court was not ruling on the merits and the decision has no bearing on how the Court will treat any pending or future litigation on this issue. USCIS continues to conduct public charge inadmissibility determinations consistent with its 1999 Interim Field Guidance. BAL will continue to provide updates on developments relating to the public charge ground of inadmissibility.
The Department of Homeland Security (DHS) and the U.S. State Department have announced new exemptions to ensure Afghans who would otherwise be eligible for the benefit or protection they are seeking are not automatically denied.
Adjudicating officers will apply these exemptions on a case-by-case, discretionary basis. The new exemptions may apply to the following individuals:
Additional Information: Individuals will only qualify for the exemptions if they have undergone screening and vetting by the U.S. government and are determined to pose no risk to national security. A list of individuals who may be protected from certain automatic denials is available here.
BAL Analysis: BAL will continue to follow developments specifically affecting Afghan nationals and will provide updates on important immigration updates as information becomes available.
Employers and immigration advocates marked the 10th anniversary of Deferred Action for Childhood Arrivals (DACA) Wednesday by urging political leaders to take action to protect the program.
The Obama administration created DACA on June 15, 2012, shielding hundreds of thousands of “Dreamers” (immigrants who were brought to the U.S. unlawfully as children) from deportation and allowing them to apply for work authorization.
“As employers and business associations committed to a strong U.S. economy, we highly value the contributions of Dreamers in our workforces and communities and reiterate the urgent need to provide them with long-term certainty and stability in the only country they know as ‘home,’” said the National Immigration Forum in a letter to congressional leaders. The letter was signed by leading U.S. employers, business associations and immigration groups, including BAL.
Despite its broad popularity and importance to employers, DACA remains under threat. 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, and the Fifth Circuit Court of Appeals will hear arguments in the case on July 6.
White House officials, including Vice President Kamala Harris, were scheduled to meet with a group of 20 Dreamers Wednesday to discuss DACA. The Biden administration has pledged to “preserve and fortify” DACA through the regulatory process. In September, DHS published a proposed DACA regulation that drew more than 16,000 comments last fall. DHS is expected to finalize the regulation in the coming months, though litigation challenging a final regulation is likely.
DACA proponents have long said that the only permanent solution for Dreamers is legislation. Business Roundtable CEO Joshua Bolten said in a statement Wednesday that it is “long past time to enact commonsense immigration reforms” including a “permanent legislative solution for DACA recipients, who were brought here as minors and now live in limbo under the temporary DACA program.”
The Coalition for the American Dream said it is “inexcusable” that Congress has not acted to end the “legal limbo” in which DACA recipients find themselves.
“Dreamers are critical members of our workforce, industries, and communities, and they have abided by the laws and regulations of our country where they have lived almost their entire lives,” the Coalition said. “The thousands of Americans businesses represented by the Coalition for the American Dream are proud to employ many of them and we are equally proud to have watched many Dreamers start their own businesses as they contribute greatly to the American economy.”
BAL Analysis: In the 10 years since it was created, DACA has shielded hundreds of thousands of beneficiaries from deportation and allowed them to work lawfully in the U.S. DACA recipients play a key role in the American workforce, and employers have repeatedly stressed the importance of protecting the program and providing long-term relief for Dreamers. 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.
The U.S. State Department recently published a Federal Register notice, removing the requirement that Diversity Visa entrants provide certain passport information.
Background: In February 2022, a federal district court vacated the 2019 regulation that required DV entrants to submit valid passport information on their DV entry forms. The State Department removed the regulation to comply with the court’s ruling. Before the recent court ruling, entrants who submitted inaccurate or incomplete passport information would be automatically disqualified for that year’s DV selection.
BAL Analysis: BAL will continue to monitor changes to DV requirements and DV cases and will provide updates as information becomes available.
Countries around the world continue to lift COVID-19 entry restrictions, and many employers and employees are planning travel abroad this summer. COVID-19 continues to affect travel to the U.S., however, and BAL urges employees to take precautions, consult their BAL professional and weigh key considerations when planning international travel.
Key Considerations:
BAL Analysis: While many countries are lifting COVID-19 travel restrictions, the U.S. continues to enforce a vaccine requirement for inbound nonimmigrant foreign nationals. Visa and passport services continue to be delayed. Employers and employees should continue to consult their BAL professional before planning any international travel.