Episode 69: Why a federal court ruling in Georgia has the attention of the immigration law community

It’s April 11, and this is your BAL Immigration Report.

• Federal authorities increase the automatic extension period for certain employment authorization documents.
• USCIS releases data showing it is reducing processing times.
• A ruling out of Georgia draws the attention of the immigration law community.

“We haven’t seen this in many years. What we have seen is the Department of Justice getting more and more active in investigating certain parts of companies’ immigration practices.”

—Maggie Murphy, BAL Partner

U.S. news

USCIS temporarily increases EAD automatic extension period

U.S. Citizenship and Immigration Services published a temporary rule this week that increases the automatic extension period for certain employment authorization documents to up to 540 days. The extension applies to eligible employment authorization document renewal applications that were either filed on or after Oct. 27, 2023, and remain pending, or are filed from April 8 through September 2025.

The agency said the extension is necessary due to application volume and processing times. Without the longer validity period, nearly 800,000 renewal applicants “would have been in danger of experiencing a lapse in employment authorization,” negatively impacting up to 80,000 employers nationwide, USCIS said.

USCIS processing times improve

Wait times for immigration requests continue to improve. That’s according to a USCIS fact sheet spanning fiscal years 2016 to 2024. The data indicates that median processing times were significantly lower in the first six months of this fiscal year than in fiscal year 2023.

Some categories that have improved processing times include employment authorization documents, naturalization, advanced parole documents and petitions for nonimmigrant workers. The agency said it expects that the opening of a new service center and hiring of new staff will help further reduce processing times for other forms, including I-601, I-730 and I-918.

U.S. news roundup

• A Cato Institute study found a record quarter million international students were denied visas last fiscal year.
• USCIS extended the validity of vaccination and medical reports.
• Officials said they continue to process most DACA renewal requests within 120 days, their target time frame.

Spotlight

A conversation with BAL Partner Maggie Murphy: why a recent ruling from a district court judge in Georgia has drawn national attention from the immigration law community.

BAL Immigration Report: Last month, a judge ruled that the federal government could not continue proceedings against Walmart in an I-9 record-keeping dispute, saying the structure of the office hearing the matter violates the constitution. Maggie Murphy, a BAL partner and an elected director on the American Immigration Lawyers Association’s Board of Governors joined the podcast this week to discuss this case. We opened our conversation by asking if she could tell us about what happened and why it has become a point of interest in the immigration law community.

Murphy: It’s definitely something that we’re watching closely right now. In late March, a federal court ruled that the Office of the Chief Administrative Hearing Officer, which is called OCAHO, that the structure of that office violates the constitution. And so the court therefore blocked proceedings against Walmart in an I-9 related matter. They said that OCAHO trying to enforce I-9 violation rules was unconstitutional because of the way OCAHO is structured.

BAL: Murphy said the ruling is part of a recent trend.

Murphy: It’s not a one-off. Last year, in late fall, another federal court issued a similar ruling, which preliminarily enjoined the government from pursuing discrimination claims against an employer. There was also a similar ruling in an SEC violation against an administrative law judge. These are rulings against administrative law judges and the offices that they’re structured under. OCAHO is part of the Department of Justice’s Executive Office for Immigration Review — EOIR. We use a lot of acronyms here, but OCAHO is structured under EOIR, which is Department of Justice, and immigration law judges are also administrative law judges that are structured under EOIR.

BAL: It’s not yet clear what the long-term consequences of these cases could be.

Murphy: It’s interesting because it impacts not only some of the administrative things that companies do, but also just how they are enforcing immigration provisions through their daily hiring. What we’re seeing here is that this structure is being challenged, which is dangerous for Department of Justice because this is how they’re enforcing these provisions. This is their unit that investigates and enforces immigration-related violations — so we’ve got I-9 violations, antidiscrimination violations. And what we’ve seen in some of the other cases is the Department of Justice looking into things like PERM advertising — that’s a very big part of immigration for a lot of companies — so when the Department of Justice is reviewing advertising practices, for example, and trying to enforce immigration-related provisions through this OCAHO unit or other administrative units, now they’re being challenged on that. That’s really interesting for us to watch and pay attention to because we haven’t seen this in many years. What we have seen is the Department of Justice getting more and more active in investigating certain parts of companies’ immigration practices. It’s been really interesting to read through these decisions and read about the challenges because until a few years ago, it hadn’t been a focus.

BAL: We asked Murphy if the trend should change anything about the ways immigration programs are operating.

Murphy: No, it really should not because it’s important for us to follow the regulations and to make sure that we are being mindful of what is being investigated, what is on top of mind for the government, and what they’re looking into and making sure that our programs do follow the law. But it’s also important that we keep an eye on this and read through these arguments to see what’s going to happen next. And I think it’s exciting. It’s interesting. Companies might also, who are being challenged by OCAHO, may want to consider filing an appeal if they see that the violation that they receive, they think that’s unfair. So it’s interesting to see when companies choose to challenge or appeal these decisions because that’s where we get some of the most interesting case law.

Global news

Italy introduces digital nomad visa

In Italy, a new digital nomad visa is now available to remote workers who meet certain eligibility requirements.

Prospective applicants must have an annual income that’s at least three times the minimum level required for exemption from healthcare participation, approximately 28,000 euros — or about US$30,400. They must also show proof of health insurance valid throughout Italy, accommodation, and at least six months of work experience as a digital nomad or remote worker, as well as attest to having no criminal convictions.

The digital nomad visa is valid for one year. It may be renewed and allows core family members to accompany the visa holder.

Canada to increase permanent residency fees

Canadian officials announced forthcoming fee increases for all permanent residency applications. The new fees reflect a 12% to 13% increase over the current rates. The Canadian government automatically adjusts the fees every two years for all permanent resident applications based on the cumulative percentage increase to the Canadian Consumer Price Index. The updated fee structure goes into effect on April 30.

Global news roundup

• The U.K.’s Immigration Salary List took effect April 4.
• Luxembourg updated minimum salary requirements for EU Blue Card holders.
• Bulgaria and Romania became the newest members of Europe’s passport-free Schengen area on March 31.

Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.