The Department of State announced that the United States and Japan have established a new J-1 Exchange Program – the Japanese Specialist Program. The new program specifically facilitates the exchange of Japanese language and culture specialists to observe U.S. educational methods and to share their knowledge of Japanese educational methods with U.S. colleagues.

The program is expected to expand cultural exchange opportunities and promote long-term mutual understanding and international cooperation with Japan throughout the United States.

The State Department’s J-1 Specialist programs are for experts in a field of specialized knowledge who come to the United States to exchange knowledge with their American counterparts. The maximum duration of these programs is generally one year.

The Japanese Specialist Program is exempted from the usual one-year limitation. These specialists will be able to remain in the United States for up to three years. Placement of the specialists is managed through State Department-designated sponsors who handle the screening and selection of participants. Individuals selected for program receive a form from the sponsor which they use to apply for a visa at a U.S. embassy or consulate.

According to the announcement, the Japanese Specialists “will share their specialized knowledge of Japanese language and education in the United States at community based non-profit organizations, U.S. Government offices, secondary schools or post-secondary academic institutions offering Japanese, and similar types of institutions to increase U.S. local communities’ understanding of Japan, its culture, and language.”

Based on Memorandum of Cooperation between the United States and Japan, this new exchange program with its three-year duration will serve to enhance and strengthen diplomatic ties between the two countries.

If you have any questions about how organizations might make use of this and other J-1 visa programs, please reach out to your Jackson Lewis attorney.

It is not unusual for employers to require foreign employees to sign repayment agreements that require the employee to repay some or all required immigration process costs if the employee terminates employment before the end of the contract term. Employers often use the contracts as a deterrent to employees leaving as soon as the immigration benefit is secured, not intending to enforce or collect damages. Employers may want to reconsider this retention strategy.

Civil claims brought under the Trafficking Victims Protection Act (TVPA) have argued that these repayment agreements, also known as claw-back or “damages for quitting” contracts, are akin to forced labor under the TVPA as employees are effectively unable to quit because of the prohibitive costs. Repayment contracts can be used in any industry but are especially prevalent with nursing staffing agencies. The TVPA claims, in theory, can be brought by any plaintiff who feels burdened by a reimbursement agreement.

The claims also typically allege that the TVPA covers employers who threaten to report foreign national employees who wish to terminate employment to immigration authorities. Whether or not a threat occurred, it is notable that an employer has a legal obligation with certain types of visas to notify USCIS and DOL upon termination of employment. Employers that fail to provide the obligatory notice may continue to be liable for wage obligations under the underlying immigration petition. This legal obligation alone will not be enough to protect employers from TVPA claims.

Takeaways:

  1. Employers should review any repayment agreement executed with immigration-sponsored employees. Many employers with these provisions do not intend to enforce or collect damages but use the contracts as a deterrent to employees leaving as soon as the immigration benefit is secured. Immigration sponsorship can be very expensive and employers often want some cost contribution in return for the investment if the employee terminates the contract early. If there is no intention to enforce the contract, then it may be better to discontinue the practice.
  2. Employers should review repayment contracts with employment counsel to confirm compliance with state laws and TVPA concerns.
  3. Employers should be careful about how they communicate to employees regarding the reporting of voluntary employment termination prior to the end of the contract term to immigration officials. Notifying USCIS and DOL of the termination of a work visa-sponsored employee is legally required, but problems can arise if this is communicated in a way that appears threatening to the employee. Review offer letters to make sure that any immigration provision does not have unnecessary language about reporting to immigration officials.
  4. TVPA allows civil lawsuits against companies that benefit from trafficking even if they are not direct participants, for example, by contracting with staffing agencies that may use restrictive reimbursement or damages clauses. It is a best practice to review vendor contracts to ensure compliance.

Courts have held that the TVPA allows compensatory damages, liquidated damages, emotional distress damages, punitive damages, and reasonable attorney’s fees in a civil case.

Please contact a Jackson Lewis attorney with any questions.

Since 2004, U.S. Customs and Border Protection (CBP) has been working on improving the systems used to document the entries and exits of nonimmigrants to and from the United States. There is no comprehensive easy-to-use system in place to collect exit data, although there are ways to report departure that the CBP characterizes as burdensome, impractical, and inconvenient.

CBP is seeking public comment on a new program to make it easier for those subject to I-94 (Arrival/Departure Record) requirements to document their exits and improve data collection by implementing a new capability within CBP One. Except for U.S. citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit, all visitors are subject to I-94 requirements. The 30-day comment period ends May 30, 2024. Follow the instructions in the Federal Register to submit comments.

With the new program, nonimmigrants departing the United States can voluntarily provide biographic data, facial images, and geolocation information to evidence departure. Nonimmigrants will be able to use the CBP One mobile application to provide biographic information from their passports and a live “selfie” photograph once they have departed the United States. CBP will use geolocation services to confirm that the individual is outside the United States. CBP will also compare the “live” photograph to images already retained by CBP to further confirm an individual’s exit. While useful to CBP, this information also will be useful to the nonimmigrant if they need to convince CBP officers that they timely exited the United States – without overstaying.

CBP plans to also update the ESTA (Electronic System for Travel Authorization) application website with “selfie” information to make sure the applicant is the rightful possessor of the travel document used for ESTA. ESTA is used by nonimmigrants seeking to enter the United States as visitors without a visa. It is used by foreign nationals from the 41 visa waiver countries. Since third parties may apply for ESTA on someone else’s behalf, those third parties would still be able to provide this service but will have to provide the photograph for the applicant.

Jackson Lewis attorneys will follow these developments and provide updates regarding changes in CBP data collection.

President Joe Biden’s Executive Order regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” directs departments and agencies throughout the government, including the Department of Homeland Security (DHS) and the Department of State, to develop plans and policies to establish new standards for artificial intelligence (AI) use. In response, DHS has announced new programs to “strengthen national security, improve . . . operations, and provide more efficient services.”

DHS has been using AI to identify patterns in vehicle-crossing histories and to speed security processes by introducing touchless technologies at airports.

The expanded AI roadmap includes three pilot programs:

  • Enhancing Immigration Officer Training by generating dynamic, personalized training materials to meet officers’ specific needs and ensure the dissemination of knowledge on a wide range of relevant current policies and laws. The goal is to help enhance understanding and retention of crucial information and thereby increase the accuracy of the decision-making process and avoid unnecessary retraining.
  • Transforming Security Investigative Processes so that investigators can more effectively and efficiently summarize and search for relevant information in investigative reports. 
  • Improving Disaster Mitigation for all communities by learning how to more effectively identify risks and mitigation strategies and generate draft plans from publicly available sources. This would help communities determine how to apply for grants to become more resilient and reduce disaster risks.

To expedite these programs, in February 2024, DHS announced a “hiring sprint” to recruit 50 AI technology experts to work with its new AI Task Force.

As they introduce more AI technology, DHS wants to ensure that the technology is used mindfully and carefully. DHS Secretary Alejandro N. Mayorkas explained that the results of these pilots will guide the agency’s AI roadmap going forward “while upholding [the Department’s] commitment to protect civil rights, civil liberties, and privacy.”

Jackson Lewis attorneys will continue to follow these developments, particularly regarding more consistent USCIS decision-making and whether there is any significant increase in targeted investigations.

Italy and Japan have joined the list of countries making it possible for employees to spend time abroad on digital nomad visas (DNVs). These visas give individuals the ability to work abroad remotely and temporarily while remaining on their current company’s payroll and without having to go through a lengthier work permit and visa process.

Japan instituted its digital nomad visa as of April 1, 2024. It allows eligible foreign nationals to work remotely in Japan for up to six months. The visas are not renewable. These visas may include family members.

Japanese DNV eligibility requirements:

  • Individuals must be nationals of countries designated by Japan as visa exempt.
  • Individuals must be providing professional services or selling goods to individuals or companies outside of Japan by working remotely.
  • Individuals must have an annual income of least JPY 10 million (approximately US$65,000).
  • Individuals must hold private medical insurance that covers treatment and repatriation in case of death, injury, or illness in Japan.
  • Individuals’ spouses and family members must also be nationals of designated Japanese visa-exempt countries, fully dependent on the primary applicant, and hold private medical insurance that covers treatment and repatriation.

Italy announced its DNV two years ago, but the process just became available on April 4, 2024. Under Italy’s DNV, individuals may remain in Italy for up to one year with an option to renew.

Italian DNV eligibility requirements:

  • Applicants must be carrying out “high quality work activity through the use of technological tools” that allow for remote work. This includes freelancers and those employed by companies outside of Italy who can work from anywhere.
  • Applicants must hold a college or university degree and six months of work experience in the field.
  • Absent a degree, applicants must have five years of work experience in the field.
  • Applicants must have an employment contract and pass a criminal record check.
  • Applicants must supply proof of 28,000 Euros annually (approximately US$30,000).
  • Applicants must provide evidence of housing and health insurance coverage.
  • Applicants’ family members may join the applicant with government approval.

Digital nomads can work and have a great, new cultural experience. It will be important for the applicants and companies involved to be aware of tax and benefit implications, local employment laws, communications, and cybersecurity strategies, among other things. See also: Visiting Brazil? Visa Requirement for Business or to Work Remotely | Immigration Blog (globalimmigrationblog.com)

Jackson Lewis attorneys are available to assist in remote work and DNV policies and practices as well as related employment or assignment agreements and other international employment related considerations.

USCIS has released the new Form N-400, Application for Naturalization. The new form must be used to file starting June 3, 2024.

Among the form’s various changes, two are particularly notable:

  1. Social Security Update: Applicants will have the option to complete additional questions to request an original or replacement Social Security card and to authorize USCIS to update their immigration status to U.S. citizen with the Social Security Administration (SSA) without having to visit a local SSA office or provide documentation of citizenship status. Those who do not request this benefit on the form will have to visit a SSA field office. In that case, applicants can find out what documentation will be required at the SSA field office at https://www.ssa.gov/number-card/replace-card/get-started/visit-local-office .
  2. Additional Gender Option: Applicants will have a third gender option, “X,” defined as “Another Gender Identity.” The N-400 is the first USCIS form to include this change. The Transportation Safety Authority has also instituted similar changes.

As to the X gender option:

  • Supporting documentation is not required to request or change the gender selection on the N-400.
  • Gender selection on the Form N-400 does not need to match other immigration documents or identity documents.
  • Because SSA is still working on updating its systems, applicants who select the “X” gender option may need to visit a SSA field office to obtain a Social Security card or to update citizenship status at this time.

Applicants with pending N-400 applications filed before the new edition was available may request a gender update. They could do so in response to a request for evidence or at the interview. They could also upload a letter with the request as new evidence through an online account or email the request to USCIS-updategenderinfo@uscis.dhs.gov.

The N-400’s new third gender option and other changes USCIS is making, according to the agency, are consistent with USCIS efforts “to break down barriers in the immigration system and reduce undue burdens in accessing immigration benefits, while still maintaining identity verification and fraud prevention procedures.”

Those who have already received naturalization certificates and wish to choose X must wait until USCIS has revised the Form N-565, Application for Replacement Naturalization/Citizenship Document, to include the third gender option.

Those with other types of benefit requests pending and wish to choose X must also wait until request forms are updated to include the gender option.

Jackson Lewis attorneys are available to answer questions regarding the updating forms and to assist with all visa benefit requests, including naturalization requests.

Medical examinations and vaccination records properly completed and signed by a civil surgeon after Nov. 1, 2023, can be used indefinitely, USCIS has announced. There is no longer any expiration date.

Form I-693, Report of Immigration Medical Examination and Vaccination Record, is used by some foreign nationals, including green card applicants, to show they are free from any conditions that would render them inadmissible to the United States on health-related grounds.

USCIS eliminated the expiration date because technological advancements now enable civil surgeons who do the medical examinations to share medical data with the Centers for Disease Control and Prevention (CDC) electronically. In addition, the CDC and USCIS are collaborating to improve reporting of the information collected by civil surgeons to local health departments.

This change is a big improvement for foreign nationals. Before Dec. 9, 2021, USCIS required that medical forms be signed by a civil surgeon no more than 60 days before the individual applied for the relevant immigration benefit. By March 31, 2023, USCIS changed its policy and made these medical forms valid for up to two years. Even with this two-year policy, foreign nationals still had to worry about the timing of immigration applications in relation to the signing of the medical forms and often had to pay for more than one medical examination. With the new policy of indefinite validity, these issues should be eliminated. For those with forms signed on or before Nov. 1, 2023, the two-year validity policy is still in effect.

Acceptance of the Form I-693 is still discretionary. Even a valid form might be rejected if the officer has reason to believe the applicant’s medical condition has changed or if the form does not seem to accurately reflect the applicant’s current state of health. The officer can request further evidence or an updated medical examination.

If you have any questions regarding the new policy, please reach out to your Jackson Lewis attorney.

On April 12, 2024, USCIS issued a Federal Register notice establishing procedures for Palestinians eligible for Deferred Enforced Departure (DED) to apply for Employment Authorization Documents (EADs) valid through Aug. 13, 2025. President Joe Biden had announced in February 2024 DED for up to 18 months through Aug. 13, 2025, for Palestinians who had been present in the United States since Feb. 14, 2024.

There is no application for obtaining DED classification. Palestinians are covered by DED if they meet the eligibility requirements set out in President Biden’s directive and the Federal Register. But covered Palestinians must apply for DED-based EADs. The Federal Register notice sets out the EAD application instructions.

The Federal Register notice also adds that Palestinians eligible for DED who wish to travel outside the United States based on DED must apply for travel authorization by filing a Form I-131, Application for Travel Document. If a Palestinian covered by DED leaves the United States without first receiving travel authorization, that individual may no longer be eligible for DED and may not be permitted to reenter the United States.

Jackson Lewis attorneys are available to assist you with any questions about Palestinian DED and how to complete the Form I-9, Employment Eligibility Verification, process.

The Department of Homeland Security (DHS) has extended and redesignated Temporary Protected Status (TPS) for Ethiopia until Dec. 12, 2025.

The decision to renew and redesignate is based on the ongoing armed conflict in the Amhara Region and violence in other regions of the country that includes human rights abuses and indiscriminate attacks, as well as drought, flood, and disease conditions. The extension affects about 2,300 individuals while the redesignation will allow around 12,800 individuals who are otherwise eligible to apply for TPS.

Applications for re-registration and employment authorization document (EAD) renewals should be made during the 60-day re-registration period beginning on April 15, 2024.

Those with current EADs with expiration date of June 12, 2024, will be granted automatic extensions of EADs until June 12, 2025, while they wait for their new EADs (and re-registrations) to be approved. For more information on automatic extensions for Ethiopia and other TPS countries, please see our work authorization tool.

Individuals who have already applied and have pending EAD renewals need only re-register. When their EAD cases are adjudicated, they will have Dec. 12, 2025, expiration dates.

Beyond general eligibility requirements, those who wish to make initial applications for TPS and EADs must have entered the United States on or before April 11, 2024, and continuously resided in the United States since then. The redesignation application period will run until Dec. 12, 2025.

Ethiopian students in F-1 status may request work authorization or increased work hours while school is in session if they are experiencing severe economic hardship due to the continuing crises in Ethiopia.

Please see the instructions in the Federal Register for specific information.

Jackson Lewis attorneys are available to assist in making applications and determining proper work authorization procedures.

Good news for those applying for or with pending Employment Authorization Document (EAD) renewals. DHS is temporarily reinstituting its 540-day automatic extension of work authorization for eligible individuals.

Although DHS has streamlined its EAD process and extended EAD validity periods for certain applicants from two years to five years, the government still struggles to timely process EAD applications that has resulted in processing times that are still too long. Up to 800,000 employees were in danger of employment gaps. Accordingly, DHS resumed the 540-day automatic extension for qualifying petitions that were filed on or after Oct. 27, 2023.

USCIS is considering making the new 540-day rule permanent and is accepting comments on the topic until June 7, 2024.

Applicants eligible for the new 540-day automatic extension:

  • Must have timely applied to renew their EADs on or after Oct. 27, 2023 (and the application is still pending as of April 8, 2024) or on or before Sept. 30, 2025, the new end date for the automatic 540-day extension.
  • Must be applying for an EAD in the same category as their current EAD (except for Temporary Protected Status (TPS), which can be A12 or C19).
  • The eligible categories include, among others, individuals whose EADs are based on Adjustment of Status applications, asylees, refugees, certain individuals in TPS status and individuals in H-4, E, and L-2 dependent status, asylees, and refugees. The full list is available on the USCIS website.
  • Those in H-4, E, and L-2 dependent status must also have a valid I-94, Arrival/Departure Record.

Proof of 540-day Automatic Extension for Form I-9

Those who filed for renewal on or after May 4, 2022, and before Oct. 27, 2023,should have a receipt that references the 540-day extension.

Those who file for renewal on or after April 8, 2024, should receive a receipt notice explaining the 540-day rule.

Those who filed for EAD renewal after Oct. 27, 2023, and before April 8, 2024, may present their receipt notice with their facially expired EAD. USCIS will not issue updated notices for these applicants, but it will update the webpage referenced in the receipt notice to reflect the change from the 180-day rule to the 540-day rule.

The government continues to make compliance with I-9 employment eligibility verification difficult. There are hundreds of pages of government resources explaining I-9 employment eligibility, from the I-9 instructions themselves to the M-274 Handbook and USCIS I-9 Central. The rapidity of policy changes requires constant vigilance because, if employers deny employment to a work-authorized individual, the Department of Justice’s Immigrant and Employee Rights Division is ready to investigate and potentially fine infractions. The resulting tightrope employers walk is complex and unfair, as each year compliance becomes more difficult. There is no end in sight.

Jackson Lewis attorneys are available to provide guidance on completing Form I-9 for those on automatic extensions as well as on proof of employment authorization for hiring, rehiring, and reverification.