The new Deferred Action for Childhood Arrivals (DACA) final rule is in effect – to the extent permitted by court orders.

DACA allows temporary protection from deportation for undocumented immigrants who came to the United States under the age of 16. There are approximately 600,000 immigrants, known as “Dreamers,” who are protected by DACA.

The DACA policy instituted in 2012 during the Obama Administration was just that – a policy. The policy was issued without going through the rulemaking process. DACA has been in limbo for years because the program has been challenged in court and by the Trump administration. Litigation regarding DACA has been ongoing since 2018 – even making it the U.S. Supreme Court. Most recently, on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit, affirmed that the original DACA policy is unlawful. Despite that, the court continued the partial stay that allows USCIS to adjudicate DACA renewals and to accept (although not adjudicate) new initial DACA applications.

To overcome some of the problems identified in the litigation, the Biden Administration issued a new rule essentially codifying the old policy through the notice-and-comment process to fortify DACA. The new final rule, which went into effect on October 31, 2022, maintains the existing threshold criteria for DACA, allows for two-year renewable Employment Authorization Documents (EADs), and confirms that DACA is not a form of lawful status, but rather DACA recipients are considered lawfully present in the United States. Unfortunately, the final rule has not solved the problem and the program remains limited to the extent permitted by court orders, such as the Fifth Circuit Court of Appeals’ decision on October 5, 2022. The Fifth Circuit also remanded the case back to the district court to consider the new DACA final rule.

The Fifth Circuit’s ruling does not affect the validity of current grants of DACA or EADs already issued by USCIS. Those with DACA and/or EADs may continue to renew their DACA status and their EADs. There is no need to conduct reverifications until the EAD expires. The FAQs issued by USCIS in July 2021 are still applicable.

Because of the “instability” of the program and because the administration would like to see it expanded to cover more individuals, President Joe Biden has continued to call for Congressional action. Secretary of Homeland Security Alejandro Mayorkas has said, “Ultimately, we need Congress to urgently pass legislation that provides Dreamers with the permanent protection they need and deserve.”

If you have questions about DACA recipients and their employment authorization or how to handle Form I-9 Employment Eligibility Verification for DACA recipients, Jackson Lewis attorneys are available to assist.

U.S. Customs and Border Protection (CBP) will no longer issue a paper Form I-94, Arrival/Departure Record, to individuals arriving to the United States at a land border. Now, the information that was on the I-94 is on the CBP’s I-94 website and available on the CBP One Mobile application.

It has taken some time, but paper Form I-94 Arrival/Departure Records and passport admission stamps are becoming a thing of the past. CBP has automated this process at land borders. (CBP had already automated the Form I-94 process for foreign nationals arriving to the United States by air and sea several years ago.)

Nonimmigrants entering the United States by land used to receive a paper Form I-94 that they would staple into their passports as evidence of their approved length of stay. The Form I-94 serves as an official record of one’s status in the United States and when their lawful stay in the country expires.

CBP also has started to eliminate the practice of stamping an admission date inside the passport of foreign nationals arriving in the United States, according to several reports.

Accordingly, nonimmigrant individuals should check the CBP’s I-94 website or the mobile app upon their arrival to ensure the information entered is correct (i.e., visa classification, duration of permitted stay, and so on). This is a critical step to take. The Form I-94 may be the only proof a foreign national may have of their lawful admission the United States. Using the website, the individual simply needs to enter their name, date of birth, passport number, and country of citizenship. Sometimes the nonimmigrant might have to enter their name more than once in different formats (reversing first and last names or including or not including middle initials or checking spelling) to pull up the information. On the website or the mobile app, the nonimmigrant will find their visa status and approved length of stay. They can also review their travel history as the CBP site should list all arrivals and departures.

The CBP has a system for correcting errors, but reaching out to its deferred inspection office where you entered or sending an email to the office is likely faster. If the information is not correct (or not what you thought it should be), it is crucial to reach out to your immigration counsel. An unreported or incorrect length of stay or visa classification can lead to a nonimmigrant overstaying or being out of status, and the individual starts to accumulate unlawful presence. If a nonimmigrant is out of status, that individual will not be able to extend or change status without leaving the United States. In addition, if an individual accumulates 180 days or more of unlawful presence, that individual is not only out of status, but could become subject to the three- and 10-year bars to reentry if they must leave the United States to apply for a visa abroad.

Nonimmigrants who need a paper Form I-94 can request one at the port of entry, but they likely will need to go to deferred inspection office to receive one.

Jackson Lewis attorneys are available to assist with any questions about the I-94 process and issues.

Now, Mexicans applying for TN status are eligible for four-year visas by paying a larger fee. This option allows Mexicans to avoid the hassles associated with having a three-year TN visa approval but only a one-year visa.

Since 1993, Canadians and Mexicans have been able to enter the United States to work in certain fields in TN status pursuant to the North American Free Trade Agreement. That treaty became the United States, Mexico, Canada Agreement in 2020 with no major substantive changes to TN status and the process for obtaining a TN visa.

TN visas are available to Canadian and Mexican citizens who wish to work in the United States for a specific employer in more than 60 professions. There is no cap on the number of TNs available. Therefore, TN visas become particularly useful when H-1B visas are no longer available. With a TN visa, an individual who meets the eligibility requirements can enter the United States to work for up to three years at a time, and the status may be extended for three-year periods with no strict maximum limitation. Dependents may enter as well, but are not granted work authorization.

Generally, Canadians can apply directly at Class A ports of entry, or United States preclearance and preflight stations, without first having to apply through USCIS — thus expediting the process. Processing time usually is one hour to three hours, and Canadians are not required to apply for a TN visa.

For Mexicans, the process is more involved. Mexicans must apply directly at a U.S. Consulate and follow the general visa application instructions. From 2010 until 2022, TN visas for Mexicans were issued only for one year. This meant that even if the TN status was issued for three years, the holder would have to apply yearly for a new visa if they travelled internationally. Not only that, but CBP officers at the border often would mistakenly issue I-94s only for the period of the visa validity. With the change in the reciprocity tables set by the Department of State, Mexicans can apply for a four-year visa for a $382 fee, instead of the $104 fee for a one-year visa. These fees are on top of the usual $160 nonimmigrant visa application (MRV) fee.

If you have any questions about applying for or travelling in TN status, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security announced that Temporary Protected Status (TPS) and employment authorization are automatically extended until June 30, 2024, for beneficiaries from El Salvador, Honduras, Nepal, and Nicaragua who are subject to the Ramos and Bhattarai TPS litigations. The same extension applies to beneficiaries from Haiti and Sudan who are also subject to those litigations and were part of the 2011 designation for Haiti and the 2013 TPS designation for Sudan. No applications or fees are required to obtain these extensions.

Despite this, beneficiaries covered by the automatic extensions and who would like to obtain an Employment Authorization Document (EAD) with an expiration date of June 30, 2024, must file a Form I-765 and pay the fee or request a fee waiver.

Individuals from Haiti or Sudan who received their grant of TPS in 2021 or 2022, respectively, are not covered by the litigations or the automatic extensions. For those individuals, their TPS status and EADs remain valid until the expiration dates on their documents.

Anyone from Haiti or Sudan who wants to obtain TPS under the new designations must be eligible and must apply before the registration periods close on February 3, 2023, for Haiti, and on October 19, 2023, for Sudan. To be eligible, individuals from Haiti must have continuously resided in the United States since July 29, 2021, and individuals from Sudan must have continuously resided in the United States since March 1, 2022.

Jackson Lewis attorneys are available to assist you in determining whether TPS beneficiaries have work authorization and how to document their work authorization for Form I-9 Employment Eligibility Verification purposes.

Venezuelans who entered the United States before March 8, 2021, are eligible for Temporary Protected Status (TPS). That has not stopped the flow of Venezuelans who are still coming to the land border and are being sent back to Mexico. To help relieve this, USCIS announced a new online Venezuelan Parole Program, modeled after the Uniting for Ukraine Program.

The Uniting for Ukraine Program allows family members or other sponsors to host arrivals in the United States. It has significantly eased the flow of Ukrainian crossings at the southern border by offering a clear legal mechanism to lawfully enter the country. Upon entry to the United States, the parolee is eligible to apply for work authorization.

The new Venezuelan Parole Program is currently limited to 24,000 people and the “cap” is expected to be hit quickly.

Those who are eligible must:

  • Have a supporter/sponsor in the United States
  • Have a valid Venezuelan passport
  • Pass national security and public safety vetting
  • Must fly to the United States at their own expense to an interior Port of Entry upon approval

There is no “parole in place” for Venezuelans already in the United States and others, due to their immigration backgrounds, are ineligible for the new parole program:

  • Individuals who were ordered removed from the United States within the past five years are ineligible.
  • Individuals who entered the United States illegally after October 19, 2022, also are ineligible.

Supporters/sponsors may be individuals or entities lawfully located in the United States. They must show sufficient financial resources to receive and support the individual(s) they agree to sponsor throughout the parole period. Supporters may sponsor multiple beneficiaries and may join together to meet the financial requirements to sponsor beneficiaries.

Specific instructions and details on applications can be found in the Federal Register.

If you have any questions, please contact a Jackson Lewis attorney.

For employers that hire foreign nationals, whether as local hires already in the country or as transferees from foreign affiliates, immigration processing delays have been exacerbated during the COVID-19 pandemic. Companies in the manufacturing sector have had to deal with unexpected unpredictability in project planning, as well as increased costs. Please see our full publication on this topic here.

The Department of Homeland Security (DHS) in conjunction with the Department of Labor (DOL) will be starting the fiscal year by making an additional 64,716 H-2B temporary nonagricultural worker visas available. This is on top of the 66,000 normally available.

This move represents a change in strategy. Instead of waiting, the agencies announced the additional allocation at the start of the federal fiscal year to allow employers to plan for peak season needs. In exchange, the agencies are instituting more robust protections for U.S. workers and implementing a new White House-convened Worker Protection Taskforce to ensure that H-2B workers are protected from exploitation and abuse. DHS and DOL are expected to issue a new rule explaining how the visas will be distributed.

Of the 64,716 visas, 20,000 will be reserved for workers from Haiti and the Central American Northern Triangle countries of El Salvador, Guatemala, and Honduras. The remaining 44,716 visas will be available to returning workers who have received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The additional visas will be split between the first and second halves of the year – reserving visas to fill the peak summer season needs.

H-2B visas allow employers to bring foreign national workers to the United States for temporary, seasonal, nonagricultural jobs. They are employed by various industries, including hospitality, tourism, landscaping, and seafood processing. The need for workers always exceeds the number of visas available, but hit a critical mass in the last few years due to labor shortage issues and economic growth. While grateful for the additional allocation, some employers like the crab processors in Maryland have noted that this is just a temporary fix and that, even with the additional visas, there may likely be an “overwhelming demand.”

Jackson Lewis attorneys are available to assist you to undertake the three-step H-2B process and will provide updates on the new allocation as they become available.

The Diversity Visa (DV) Lottery is open for FY 2024. Applications may be filed online until 12:00 p.m. ET on November 8, 2022. 

The DV Lottery program makes 50,000 immigrant visas (“green cards”) available every year to applicants from countries with low rates of immigration to the United States. Eligible individuals must meet certain requirements but do not need a sponsor. To be eligible, the individual must have at least two years of high school or its equivalent or two years of work experience in an occupation that requires at least two years of training or experience. Eligible occupations are listed on the Department of State website per the instructions. Multiple applications are not allowed.

For the 2024 program, individuals from the following countries are NOT eligible:

Bangladesh, Brazil, Canada, China, including Hong Kong SAR, Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), United Kingdom (except Northern Ireland and its dependent territories), Venezuela and Vietnam.  Natives of Macau SAR and Taiwan ARE eligible. It is possible to apply based on a spouse’s country of birth.

The multi-step process is done online. It is important to follow the instructions on the Department of State website carefully.

Individuals may apply from abroad or from within the United States. Notably, individuals may apply for the DV even if they are currently pursuing permanent residence through the labor certification process. That is, the processes are not mutually exclusive.

If you have questions about the DV Lottery, please reach out to your Jackson Lewis attorney.

Severe immigration consequences for certain non-U.S. citizens remain despite President Joe Biden’s pardon of all prior federal offenses for simple marijuana possession.

On October 6, 2022, President Biden took a major step toward the decriminalization of marijuana, pardoning all prior federal offenses for simple marijuana possession. Although this pardon will affect only approximately 6,500 individuals who were convicted of simple marijuana possession under federal law before October 6, 2022, it does not affect the much larger number of individuals who have been convicted of a marijuana possession offense under state law. To the disappointment of immigration advocates, the pardon does not benefit non-U.S. citizens who were not lawfully present in the United States at the time of their conviction, even if their conviction was under federal law.

Moreover, because marijuana is still listed as a Schedule I drug under the federal Controlled Substances Act:

  • Non-U.S. citizens can still be denied entry to the country for use of marijuana or for working or actively investing in the marijuana industry;
  • Immigration authorities may deny a non-U.S. citizen’s application for lawful permanent residence (green card) or naturalization on the ground that they have a conviction for a marijuana-related offense, an admission by the non-U.S. citizen that they have used marijuana in the past, or that they have worked or is actively investing in the marijuana industry; and
  • The Department of Homeland Security can still place individuals, including green card holders, into removal proceedings (deportation) as a result of marijuana-related offenses, unless the conviction was for simple possession of less than 30 grams.

In his order, President Biden urged governors to consider similar state law pardons for simple marijuana possession charges, which might affect many more individuals. President Biden has also asked the Department of Health and Human Services to consider changing the current Schedule I classification for marijuana. If one of these changes occurred, non-U.S. citizens would substantially benefit, as their state convictions for marijuana-related offenses might be pardoned, thus lowering the negative consequences for immigration purposes.

For now, however, non-U.S. citizens should still be wary of marijuana use, or working or investing in the marijuana industry, even in places in the United States or abroad where those activities are legal. While there may not be federal prosecutions for the use and possession of marijuana, there may be severe immigration consequences for non-U.S. citizens, because the use and possession of marijuana remains illegal in certain states.

For more information on how to navigate marijuana and immigration benefits, please contact a Jackson Lewis attorney.

The Department of Homeland Security (DHS) will continue Form I-9 flexibility for another nine months until July 31, 2023, according to an announcement. DHS guidance remains the same. Employees who, due to COVID-19 policies, do not report to a physical location on a regular, consistent, or predictable basis continue to be temporarily exempt from the I-9 in-person verification requirements.

This temporary flexibility has been in effect since March 2020. As it continues and more employees are verified remotely, it becomes more challenging for employers to be prepared for the possible end of flexibility. According to DHS guidance, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

At the same time, DHS is considering permanently adopting the remote verification process. In August 2022, DHS issued a proposed rule that would give the agency to ability to permit remote document inspection permanently – possibly in exchange for requiring E-Verify, updating record retention requirements, or providing training on fraud issues – if it determines security would not be diminished. However, at this time, the timing and scope of a final rulemaking is unknown. It remains to be seen if all employees who have been remotely verified will remain exempted from in-person verification going forward. The notice and comment period for the proposed rule will end on October 18th. In the meantime, Form I-9 flexibility is once again continued temporarily.

DHS also announced that employers should continue to use the current Form I-9 after its October 31, 2022, expiration date until further notice.

Jackson Lewis attorneys are available to assist you in preparing for the possible end of temporary flexibility.