Temporary Protected Status (TPS) for Yemen has been extended and redesignated for 18 months from Sept. 4, 2024 until Mar. 3, 2026. Department of Homeland Security (DHS) Secretary Alejandro N. Mayorkas announced that the extension and re-designation have been granted due to the continuing conflict in Yemen.  Yemen is now in the tenth year of a protracted conflict that has led to food insecurity, limited access to water and medical care and large-scale destruction of Yemen’s infrastructure.

Yemeni nationals who already have TPS must re-register and apply to extend their employment authorization during the 60-day re-registration period that runs from Jul. 10, 2024 until Sept. 9, 2024.  DHS recognizes that even those who timely apply may, due to processing times, have gaps in employment authorization.  Accordingly, employment authorization documents (EADs) will be automatically extended until through Sept. 3, 2025 for those with TPS EADs that expire either on Sept. 3, 2024 or Mar. 3, 2023. 

Yemeni nationals who wish to make initial applications for TPS under the re-designation must do so between Sept. 4, 2024 and Mar. 3, 2026.  Beyond the general eligibility requirements, those applying for initial TPS must show they have continuously resided in the United States since Jul. 2, 2024 and are continuously present since Sept. 4, 2024. 

Approximately 2,300 Yemini nationals are eligible for extensions and approximately 1,700 Yemeni nationals will be eligible for initial applications.  They will also be eligible to apply for travel authorization during their TPS but the grant will be at the discretion of DHS.

Complete instructions for Yemeni TPS can be found in the Federal Register.

Yemeni nationals who are students in F-1 status will be eligible for Special Student Relief so that they may request employment authorization and work an increased number of hours while school is in session and reduce their course loads while continuing to maintain F-1 status.   

For more information on how to verify or re-verify employment authorization for TPS beneficiaries, please reach out to your Jackson Lewis attorney.

President Joe Biden issued a Memorandum on Extending Eligibility for Deferred Enforced Departure for Liberians that defers from June 30, 2024, through June 30, 2026, the removal of any eligible Liberian national who is present in the United States and who has already been entitled to Deferred Enforced Departure (DED) and has continuously resided in the United States since May 20, 2017.

In addition, President Biden also continued employment authorization for individuals included in these categories through June 30, 2026.

The United States has been a safe haven for Liberians forced to flee their country due to armed conflict and widespread civil strife since 1991.

In 2019, Congress enacted the Liberian Refugee Immigration Fairness provision of the National Defense Authorization Act that made Liberians who were continuously present in the United States since 2014 eligible to apply for adjustment of status. These applications were complex and have taken time to adjudicate. To protect Liberians who have not received green cards, Liberian DED and employment authorization has been extended by multiple administrations.

Further instructions regarding Liberian DED will be forthcoming in the Federal Register. Please contact a Jackson Lewis attorney with any questions.

In a 6-3 ruling in U.S. Department of State et al v. Munoz et al (Case Number 23-334), the Supreme Court of the United States (SCOTUS) reaffirmed the doctrine of consular nonreviewability ruling against a U.S. citizen’s spouse who argued that the federal government violated her due process rights by denying her Salvadoran spouse an immigrant visa based on an approved family-based petition. The doctrine of consular nonreviewability holds that because the INA fails to authorize judicial review of consular decisions denying visas, federal courts do not have the authority to review visa denials.

In Munoz, SCOTUS held that U.S. citizens do not have a constitutional fundamental liberty interest in their non-citizen spouse’s ability to be admitted to United States, moreover, that U.S. citizens are not constitutionally entitled to review of denied visas as they could not raise this issue indirectly in their spouse’s case.

Ms. Munoz, a U.S. citizen, and her non-citizen spouse of over 10 years, Mr. Munoz, were forced to live apart for several years. Mr. Munoz was denied a visa following several interviews and without any explanation other than a broad reference to section 212(a)(3)(A)Iii) of the Immigration and Nationality Act (INA), which makes an individual inadmissible if the consular officer “knows, or has reasonable ground to believe” that the individual seeks to enter the United States to engage in unlawful activity. Ms. Munoz eventually guessed (correctly) that the Consulate believed her husband was a member of MS-13, a transnational criminal gang, due to his tattoo. Mr. Munoz asked the Consulate to reconsider its visa denial, but the Consulate denied this request. The couple then filed a federal lawsuit against the Consulate and the Department of State (DOS), arguing, inter alia, that the government had abridged Ms. Munoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason he was inadmissible under the cited INA provision. The District Court granted summary judgment in favor of DOS after DOS admitted the denial was in fact based on a consular officer’s determination that Mr. Munoz had religious tattoos that looked like gang logos. Thereafter, the Ninth Circuit Court of Appeals vacated the judgment, which brought the case next to the U.S. Supreme Court.

In its ruling, SCOTUS indicated that the “’the Due Process Clause specially protects’ only ‘those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.’” While Munoz invoked the fundamental right to marriage, SCOTUS concluded that Ms. Munoz was in fact claiming something different – the right to reside with her non-citizen spouse in the U.S. And that, SCOTUS concluded, is not a right deeply rooted in the nation’s history. Indeed, the country’s history instead recognizes instead the government’s sovereign authority to set the terms of admission and exclusion. SCOTUS also noted that while Congress has made some specific exceptions for spouses, Congress has not made spousal immigration a matter of right.

In its decision, SCOTUS distinguished an earlier case, Kerry v. Din, 576 U.S. 86 (2015) where in a concurring opinion, Justice Anthony Kennedy assumed that a U.S. citizen would have a liberty interest that would be burdened by a spouse’s visa denial and was therefore entitled to more information than a simple citation explaining the denial. In that case, Justice Kennedy was referring to the fact that a U.S. citizen should have some right to question a denial of a spouse’s visa because there could be “bad faith” denial.

Advocates are concerned that SCOTUS’ opinion in Munoz could lead to unnecessary family separations and subject U.S. citizen spouses to arbitrary decisions by consular officers, denying them the opportunity to build their lives together with their spouses in the U.S. Moreover, this decision casts fear and uncertainty on non-citizen spouses who have an approved family-based petition who must leave the country temporarily to process their immigrant visas abroad – not knowing whether a consular officer may erroneously deny their visa. Ultimately, SCOTUS’ decision may force U.S. citizen spouses to leave the U.S. so they can live with their spouses abroad – without having had the ability to challenge a potentially erroneous visa denial by a consular officer.

Customs and Border Protection (CBP) published a proposed rule that will substantially increase the fees for certain H-1B and L-1 petitions. The agency plans to clarify that the 9-11 Response and Biometric Entry-Exit Fee (9-11 Fee) applies to initial filings and to all extensions for employers with at least 50 employees of whom at least 50% are in H or L status.

Currently, the fee is required only for initial and change-of-employer petitions. Under the proposed rule, for covered employers, all H and L petitions (other than amendments without extensions) will cost an additional $4,000 or $4,500 respectively. DHS believes the proposed changes will clarify ambiguous statutory language while helping to comply with its congressional mandate to implement a biometric entry-exit data system.

When first instituted in 2010, the agencies involved took the position that the additional fee applied only where the USCIS $500 Fraud Fee was required. In other words, it was obligatory only for initial petitions for covered employers. Interpreted in that way, the 9-11 Fee applied only to about 29% of cases for covered employers. With the new interpretation, the 9-11 Fee is estimated to apply to 89% of those cases.

The 9-11 Fee was instituted by Congress to financially support and improve the biometric entry-exit data system to increase national security. The system matches travelers to travel documents and, since 2018, has identified close to 2,000 imposters and more than 300,000 overstays. CBP believes that this sort of security effort helps the travel industry not only be streamlining processes but by restoring consumer confidence in the system. Significantly, the system lacks funding. The CBP’s new interpretation of the 9-11 Fee will add quite a bit of money to the fund supporting the biometric system. CBP forecasts that the 9-11 Fees collected for H-1Bs will increase funding from $68 million to $129 million annually, and that the L-1 9-11 Fees will increase funding from $42 million to $157 million annually. Importantly, the question is whether the fee increase will substantially reduce the number of petitions filed.

CBP accepted comments through July 8, 2024. As of just before the July 4th holiday, about 74 comments had been submitted. Most comments focus on how this new interpretation will burden employers and will lead to a reduction in H-1B and L-1 filings at a time when companies need more highly skilled workers.

The final rule is expected sometime in July. Jackson Lewis attorneys are available to assist employers develop possible strategies to avoid these higher fees – such as possibly using other visa categories – and will provide updates as they become available.

USCIS announced that it is extending the validity of certain Employment Authorization Documents (EADs) issued to Temporary Protected Status (TPS) beneficiaries from El Salvador, Honduras, Nepal, Nicaragua, and Sudan until March 9, 2025. Currently, most of these individuals are the beneficiaries of automatic extensions through June 30, 2024.

To implement these new extensions, USCIS is issuing Forms I-797, Notices of Action, to TPS beneficiaries who have pending applications to extend their EADs and to those who are eligible to re-register for TPS.

For Form I-9 Employment Eligibility Verification purposes, employees may present their Form I-797, along with their TPS-based EAD (EADs with Codes A12 or C19) that expire on one of the 17 expiration dates listed on I-9 Central.

The agency also reminded individuals eligible for TPS from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan who have not re-registered that they must do so by the below dates to maintain their TPS.

  • El Salvador until March 9, 2025
  • Honduras until July 5, 2025
  • Nepal until June 24, 2025
  • Nicaragua until July 5, 2025
  • Sudan until April 19, 2025
  • Haiti until August 3, 2024

A separate announcement regarding the extension of TPS for Haiti beyond August 3, 2024, will be published in the Federal Register on July 1, 2024.

Jackson Lewis attorneys will provide clarifications as soon as guidance is available.

The Department of Homeland Security (DHS) has extended and redesignated Temporary Protected Status (TPS) for Haiti until Feb. 3, 2026.

According to DHS Secretary Alejandro N. Mayorkas, the decision to renew and redesignate is based on the continued violence and insecurity in Haiti and limited access to safety, health care, food, and water in that country. In addition, Haiti is prone to flooding, mudslides, storm damage, and earthquakes that have resulted in ongoing humanitarian challenges.

The redesignation alone will allow approximately 309,000 Haitians who are otherwise eligible to make initial applications for TPS if they have continually resided in the United States on or before June 3, 2024. Initial TPS applications must be submitted from July 1, 2024, through Feb. 3, 2026.

Applications for TPS extensions and employment authorization document (EAD) renewals should be made during the 60-day re-registration period beginning on July 1, 2024, until Aug. 30, 2024. Individuals who have pending extensions and pending EAD renewals need not reapply. When their cases are adjudicated, the new documents will have Feb. 3, 2026, expiration dates. Applicants with the following EAD expiration dates will be eligible for automatic extensions of their EADs through Aug. 3, 2025, while they wait for their new EADs be approved:

2024: Aug. 3, June 30

2023: Feb. 3

2022: Dec. 31, Oct. 4, Jan. 4

2021: Oct. 4, Jan. 4

2020: Jan. 2

2019: July 22

2018: Jan. 22

2017: July 22

It is expected that special student relief for F-1 students from Haiti who are suffering severe economic hardship will also be extended.

Please see the official instructions that will be published in the Federal Register on July 1, 2024, for specific information.

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

The mixed results of their visa programs aimed at attracting foreign investors have some European countries reconsidering, even as the U.S. program continues.

In 2022, the United States reauthorized its EB-5 Immigrant Investor Program for five years, until September 2027. The program allows foreign nationals to make investments of between $800,000 and $1,050,000 in projects in the United States as a basis to apply for green cards and the eventual prospect of U.S. citizenship. The program is meant to stimulate the economy and create jobs in the United States through investment from foreign nationals. EB-5s have become particularly popular for high worth individuals from China and India.

Not to be left behind, several European countries for the past 10 years also created similar programs, dubbed “golden visas.” Greece, Portugal, and Spain have been particularly popular for foreign nationals from China, Russia, the Middle East, and even the United States. Over time, these programs are creating economic problems in the countries they were meant to help. Allowing wealthy foreign nationals the ability to reside in less expensive countries has created a housing crisis for nationals of those countries. Wealthy foreigners end up inflating the cost of housing, and those who have always lived in those countries can no longer afford to buy. It is gentrification on an international scale. Such issues are not just caused by golden visas, short-term rentals have added to the problem. Individuals can make more renting to vacationing foreigners in popular areas than renting year-round to families. And some of the golden visa investors are doing just that — renting out their newly acquired real estate.

In April, Spain announced that it would end its gold visa program. Portugal is continuing its program, but it has removed real estate investment from its program to try to cool the housing market. Greece, on the other hand, is keeping its program and increasing the investment amount to gain investors, even if it means inflated housing prices. Possible money laundering through these investments also can be an issue. Ireland ended its program partially to address that problem. The UK has similar concerns. Even the EB-5 program in the United States has experienced various frauds.

There are potentially alternative visa strategies and options that may be available to foreign nationals who wish to remain in another country long-term. Jackson Lewis attorneys are available to assist with global mobility, cross-border remote work or residence applications, and U.S. EB-5 visas and to advise through our global network regarding golden visa programs and other visa or residency options abroad.

President Joe Biden announced protections for undocumented foreign national spouses of U.S. citizens who have lived in the United States for 10 years without a legal immigration status. This will protect approximately 500,000 such spouses from deportation and fear of deportation. The program is expected to launch by summer’s end.

This comes on the 12th anniversary of the Obama Administration’s Deferred Action for Childhood Arrivals, or DACA program, and comes on the heels of President Biden’s new southern border restrictions.

What was the problem?

The law allows a foreign national spouse of a U.S. citizen to apply for lawful permanent residence (a “green card”) and eventual U.S. citizenship through a process that usually does not involve a lengthy separation from the U.S. citizen spouse. But individuals who entered the United States in an unlawful manner accrue “unlawful presence” and are  required to return to their home countries to  receive permanent residence through a process involving the U.S. consulate.  

The law takes a punitive turn here. Once that undocumented person departs the U.S. to process the immigrant visa, they are barred from returning for up to 10 years depending upon the length of their unlawful presence in the United States. The law was designed to discourage people from coming to the United States unlawfully but it had the opposite effect of what was intended: people who were facing a 10-year separation from their families were understandably reluctant to leave even if it meant that they would be able to legalized. Instead, undocumented people with U.S. citizen spouses and children have largely chosen to live in the shadows rather than risk long-term separation from loved ones.

Biden’s plan will keep these families together. The program will make certain undocumented foreign national spouses eligible for “parole in place” and work authorization for three years while they may pursue permanent residence (and eventually citizenship) without leaving the United States.

Who is eligible?

The plan will grant parole in place and work authorization to undocumented spouses of  U.S. citizens who have been in the United States for at least 10 years, were married to the U.S. citizen before June 17, 2024, and are not considered a threat to public safety.

The program will also provide similar protection to approximately 50,000 undocumented people under 21 years of age who are the children of eligible spouses.

Previously deported individuals will not be eligible.

The Administration explains that the president has executive authority to grant parole on a case-by-case basis. But, without congressional action, the program could be abandoned by a different administration.

Immigration advocates excited by this program have noted that the new grants of work authorization will also be particularly helpful to the U.S. economy.

And DACA?

President Biden also plans to make some DACA “dreamers” eligible for work visas. As of now, DACA recipients must continually renew their DACA status and work authorization every two years. The new proposal would allow dreamers who have “high-skilled” job offers and U.S. degrees relevant to their proposed employment to have employers apply for work visas on their behalf. This would be first step in regularizing their immigration status.

Jackson Lewis attorney will continue to follow developments.

To avoid delays, U.S. Customs and Border Protection (CBP) wants to remind everyone who will be traveling this summer about its technologies, including lots of mobile apps, that will help streamline the reentry process for qualifying travelers. More and more travelers have been taking advantage of these tools, according to CBP.

Fourteen million people are members of CBP’s Trusted Traveler Programs (TTP). TTP provides modified screening for preapproved members, allowing members to use expedited lanes at U.S. airports and when crossing international borders. There are several programs available, use the tool on the TTP website to find the right program for you.

If you are a citizen, national, or lawful permanent resident of several countries, Global Entry (GE) may be a worthwhile membership to save time at the airport. Over the next three months, 158,000 interview appointments for the GE Program will be available. For those who cannot get to an appointment in advance of travel, Enrollment on Arrival is an option. Conditionally approved GE applicants can complete their interview without an appointment when arriving from international locations.

CBP’s number of mobile apps has grown:

  • GE app allows travelers to complete their entry process on their phones before leaving the airplane. The app is available at 47 airports.
  • Mobile Passport Control (MPC) app is for those without GE. It allows travelers to submit passport and travel information in advance for more efficient processing. MPC can be used by U.S. citizens, U.S. legal permanents residents, B-1/B-2 Canadian visitors, and Visa Waiver Program travelers. It is available at 51 ports of entry, including 14 preclearance locations and four seaports.
  • Electronic System for Travel Authorization app can be used by Visa Waiver Program travelers to submit their authorization applications.
  • CBP One Mobile app may be used by visitors to the U.S. to apply for and pay for their I-94 online. U.S. citizens can use the CBP One Mobile app to provide advance notification for agricultural inspection and declarations, including for permits for biological materials, pets that may be carrying foreign diseases, and hunting trophies.

The apps are available on Apple App store and Google Play. More information about CBP Mobile apps and general travel advice is available at https://www.cbp.gov/about/mobile-apps-directory and https://www.cbp.gov/travel .

Enjoy the summer travel season!

Homeland Security Investigations (HSI) is “rebranding.” As part of its rebranding, it has relaunched its website to distance itself from the politics of the U.S. Immigration and Customs Enforcement (ICE). ICE remains the parent agency of HSI.

HSI investigates crimes on a global scale – nationally and internationally – to protect the U.S. public. Its work includes criminal investigations into the illegal movement of people, goods, money, contraband, weapons, and sensitive technology. HSI’s wide-ranging investigations include drug and weapons smuggling, illegal technology exports (which can include deemed exports through foreign national employees), intellectual property crime, child exploitation, human trafficking (which can include investigations into repayment agreements that are seen as unreasonable restrictions on foreign nationals), financial fraud, art theft and scams.

HSI developed out of the U.S. Customs Service that was established in 1789. When the Department of Homeland Security was established after the 9/11 terrorist attacks, the customs and investigations responsibilities formed the Offices of Investigations, Intelligence, and International Affairs (OIIIA) within ICE. In 2010, OIIIA became known as HSI.

HSI could not be severed from ICE without Congressional action, but rebranding was possible. HSI wants to distance itself from ICE because it believes it is hampered in some of its investigations by the connection. For instance, there are cities that limit involvement with ICE based on sanctuary policies. Also, individuals, particularly foreign nationals, can be hesitant to interact with HSI due its connection with ICE and the raids ICE has conducted. The ICE Acting Director Patrick J. Lechleitner noted in an interview:

We needed to give HSI space to operate and do the criminal investigations, as much as possible unaffected by the political turmoil that’s involved with civil immigration.

The newly branded website does not mention ICE in any prominent way and instead features the specific badge of HSI. HSI is seeking new employees, including analytical and administrative support staff in the United States and abroad.

Jackson Lewis attorneys are available to answer any questions you may have about HSI investigations.