The Department of Homeland Security (DHS) announced the extension and redesignation of Temporary Protected Status (TPS) for Afghanistan and Venezuela.

TPS for Afghanistan will be extended and redesignated for 18 months, from November 21, 2023m to May 20, 2025. Those who already have TPS (approximately 3,100 individuals) should re-register and apply for a renewal of their employment authorization document (EAD) during the 60-day period running from September 25, 2023, until November 24, 2023. Those who do will be entitled to an automatic extension of their EADs until November 20, 2024. Afghan individuals who do not currently have TPS may apply if they have been continuously residing in the United States since September 20, 2023. Approximately 14,600 individuals may be newly eligible for TPS under the redesignation. More details are available in the Federal Register.

The specifics of the 18-month extension and redesignation of TPS for Venezuela have not yet been published in the Federal Register. But we do know that the redesignation will apply only to individuals who arrived in the United States before July 31, 2023.

DHS hopes that this redesignation will help localities such as New York City that are struggling with sheltering migrants who cannot provide for themselves because they do not have work permits. This will mean that DHS may have to prioritize Venezuelan TPS/EAD applications because, currently, those applications can take up to one year to process.

Along with the above protections, DHS will also extend protection to Afghan and Venezuelan students living in the United States throughout the extension period. Eligible students who are dealing with undue financial hardship on account of the conditions in their respective countries will be able to request work authorization, reduce their course loads, and work more hours while still maintaining their F-1 student status.

Jackson Lewis attorneys are available to assist with options for those in TPS or applying for TPS. For information about TPS work authorization, please review our TPS tool.

On September 27, 2023, Secretary of State, Antony Blinken and Secretary of Homeland Security, Alejandro Mayorkas announced that Israel will join the Visa Waiver Program (VWP). Pursuant to the designation, beginning on November 30, 2023, Israeli citizens will be able to apply online through ESTA to travel to the United States on the VWP.

The VWP allows citizens of participating countries to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa. For 10 years, Israel has wanted to become a member of the VWP but has been unable to meet all of the eligibility requirements until recently.

Among other things, entrance into the VWP requires countries to:

  • Issue secure travel documents;
  • Extend visa-free travel privileges to all U.S. citizens regardless national origin, religion, or ethnicity;
  • Work closely with U.S. counterterrorism and enforcement authorities; and
  • For initial designation, have a nonimmigrant visa refusal rate below 3%.

In advance of this designation, Israel made updates to its entry policies to meet the VWP requirement to extend reciprocal privileges to all U.S. citizens without regard to national origin, religion, or ethnicity. After monitoring by DHS, the United States determined that Israel meets this and all other program requirements for VWP membership.

Israelis have been dealing with long backlogs waiting for B-1/B-2 Visitor visas. Some, who are dual citizens, have been using passports from other countries to enter the United States using ESTA. Now, none of that will be necessary.

Israel is the 41st member of the VWP.

Please contact a Jackson Lewis attorney with any questions.

In the latest decision in the Deferred Actions for Childhood Arrivals (DACA) saga, Judge Andrew Hanen in the Southern District of Texas has found that the new DACA Final Rule issued by the Biden Administration was unlawful. In addition, he expanded the original July 16, 2021, injunction and order of vacatur to cover the Biden Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.”

The decision means that:

  • USCIS will continue to accept DACA applications, but it will not process any initial DACA requests.
  • Employment Authorization Documents (EADs) for current DACA recipients will remain valid until they expire.
  • USCIS has confirmed that the agency will continue to accept and process DACA renewal requests and EAD applications in connection to active DACA grants.

Judge Hanen previously found that the Obama program was unlawful, a ruling affirmed by the U.S. Court of Appeals for the Fifth Circuit in 2022. The appellate court found the program violated the Administrative Procedure Act and was contrary to federal immigration law. It added that the program also was not a valid use of prosecutorial discretion by DHS. In his new ruling, Judge Hanen found the same applied to the new Biden Administration Final Rule.

The history of DACA has been controversial since its inception. Although the new decision is not surprising based on Judge Hanen’s prior opinions on the legality of DACA, it highlights a major flaw in the immigration system: a lack of permanent protections for DACA recipients. As this decision will likely be appealed to the Fifth Circuit, the debate over the benefits of the DACA program will continue until there is a permanent solution enacted by Congress for undocumented immigrants who came to the United States under the age of 16.

Most DACA recipients have limited options for immigration relief. Jackson Lewis attorneys are available to advise regarding possible strategies.

By September 30, 2023, Congress will again have to fund the government. Despite ongoing efforts by the administration and Congress, indications are that a shutdown may occur at the beginning of the fiscal year, on October 1. Should a shutdown occur, it will affect a number of immigration- and visa-related agencies and processes.


Because USCIS is fee-funded, it generally continues working even during a government shutdown. However, there are a few programs that stop because they receive appropriated funds:

E-Verify and the Optional Alternative Remote Verification Process

Because E-Verify receives appropriated funds, it stops during a shutdown.

It may not be possible to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete, or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts;
  • Run reports; or
  • Resolve Tentative Nonconfirmations (TNCs).

In the past, during shutdowns, E-Verify has suspended the “three-day rule” and extended the time period for resolving TNCs.

We anticipate the same should another shutdown occur as of October 1. E-Verify employers who utilize the new optional alternative verification process will need to pay particular attention to ensure that they continue to meet all E-Verify requirements. Employers who are enrolled, and participating in good standing, in E-Verify likely will continue to be eligible to use the optional alternative remote I-9 process – even if E-Verify is not available, once the shutdown is over. Employers will need to timely create E-Verify cases.

Employers using the optional alternative verification process are reminded that, regardless of any shutdown, they still must take the following steps within three business days of the first day of employment:

  1. The employee must transmit a front and back (if the document is two-sided) copy of the identity and employment authorization documentation to the employer;
  2. The employer must examine the copies of the Form I-9 documentation or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
  3. The employer then must conduct a live video interaction with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual;
  4. The employer will then indicate on the Form I-9, by completing the corresponding box (that will be on the updated Form I-9), that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
  5. The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided).

Employers are advised not to take any adverse action against an employee while an E-Verify case remains in limbo.

Department of Labor (DOL)

DOL would shut down. The FLAG and PERM systems are inaccessible and BALCA goes into a holding pattern. If this were to happen, DOL is expected to suspend some deadlines. Remember that USCIS cases that require Labor Condition Applications or Labor Certifications such as H-1Bs, E-3s, H-2Bs or PERMs will be affected.

Department of State (DOS)

Like USCIS, visa and passport operations are fee-funded and would continue despite a government shutdown. But certain consular operations can be affected if the post has not collected enough in terms of fees. Given the slowdowns and backlogs at consulates due to COVID-19, a government shutdown could just add to ongoing delays.

Customs and Border Protection (CBP)

Because CBP staff are “essential workers,” ports of entry continue to operate during a shutdown, but application processing can be affected.

U.S. Immigration and Customs Enforcement (ICE)

ICE continues its enforcement and removal operations. The ICE Student and Exchange Visitor Program is fee-funded, so it will continue to operate.

Please reach out to your Jackson Lewis attorney for questions about whether affected processes could be filed before September 30th. If a government shutdown does occur, Jackson Lewis attorneys are available to assist you in strategizing and planning.

This is the first of a two-part series on the three factors to consider when evaluating the possible impact a job change could have on a certified PERM labor certification and a foreign national’s green card process.

Typically, unless the foreign worker qualifies for an exception, employers sponsoring a foreign national for permanent residency (a “green card”) under the employment-based second-preference and third-preference categories must conduct a labor market test (prevailing wage determination and recruitment) to show there are no U.S. workers able, willing, qualified, and available to perform the duties of the job offered to the foreign national. This labor market test must be certified by the Department of Labor (DOL) before the employer may file an immigrant petition for the foreign national. The labor certification (“PERM”) process takes around two years to complete, based on current DOL processing times.

The certified application is valid only for the job described, the foreign national named, the employer named, and the area of intended employment stated in the PERM. Once filed with DOL, the PERM application is considered final. DOL does not accept requests for changes to a filed PERM, even to make a correction. Any change to the terms of the job, therefore, could invalidate the certified PERM.

If a change or correction to the application is needed after filing the PERM with DOL, DOL requires that the existing PERM application be withdrawn, and a new PERM filed with the change or correction. This would require, however, obtaining a new prevailing wage determination and conducting recruitment.

Filing a new PERM would delay the foreign national’s green card process by many months. Such a delay could affect the foreign national’s ability to live and work in the United States while pursuing a green card.

However, it may not be necessary to start a new PERM.

When evaluating PERM job changes, the following factors should be considered: (1) timing of the job change; (2) the existing immigration strategy for the foreign national; and (3) what is changing about the job.

Timing of the job change. Although a bona fide job opening must exist for the PERM process, the PERM job opportunity is prospective in nature. The foreign national need not be employed in the PERM job during the PERM process. In fact, the foreign national need to be employed in the PERM job only upon becoming a permanent resident alien. Given the length of time DOL takes to complete the labor certification process, the worker may not be able to fill the position until a date many months, or years, in the future. If the change is only temporary or the job terms possibly would revert to those described in the certified PERM, then it may not be necessary to withdraw the PERM and re-start the PERM process.

Current immigration strategy for the foreign national. Questions to ask when evaluating the strategy include how far along the foreign national is in the green card process? How much time remains in the foreign national’s nonimmigrant status? The answer to these questions would determine the extent that the foreign national’s ability to remain living and working in the United States may be affected by starting a new PERM process due to the job changes. For example, if the foreign national has been in the United States in L-1B status for four years and is allowed only a maximum of five years in L-1B status, then the foreign national likely would reach the maximum stay in L-1B status before the employer is able to complete a new PERM process based on the job changes.

The change to the PERM job. Not all job changes would invalidate the certified PERM and require a new PERM process. This may be the most important factor and will be explained in detail in the second part of this series.  

Careful planning can minimize the impact the PERM job change could have on the immigration strategy for a foreign national. Please contact a Jackson Lewis attorney if you have any questions.

U.S. Citizenship and Immigration Services (USCIS) has updated its Policy Manual (PM) to provide guidance to USCIS officers on evaluating eligibility criteria for the EB-1A (extraordinary ability) and EB-1B (outstanding professor or researcher) employment-based immigrant visa classifications.

The EB-1 immigrant visa classifications are important methods for employers to sponsor outstanding talent in the United States and may even be a solution for certain individuals who did not “win” the H-1B lottery.

Although the legal requirements for EB-1 classification remain unchanged, the updated PM provides detailed guidelines to USCIS officers on best practices for interpreting existing law and regulations when adjudicating EB-1 petitions.

Following are highlights of the September 12, 2023, updates to the PM Volume 6, Part F, Chapters 2 and 3:

  • Provide guidance and examples of evidence that may satisfy the relevant criteria or qualify as comparable evidence.
  • Outline additional considerations for evaluating such evidence, with a focus on science, technology, engineering, or mathematics (STEM) fields.
  • Provide examples of factors that weigh in favor of approval when USCIS officers perform the two-part “final merits” analysis under Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Kazarian requires USCIS to (1) determine whether the petitioner has submitted evidence that meets at least three of the factors for EB-1 classification and (2) examine the quality of the evidence to determine whether the evidence in its totality demonstrates the required level of expertise for the extraordinary ability preference category; in other words, whether the beneficiary is among the very small percentage of people in their field who has risen to the very top of their field.

For a detailed summary of key considerations in evaluating the viability of an EB-1 petition, and an overview of the Kazarian two-part analysis, please refer to our March 10, 2022, post, O-1 and EB-1 Visa Adjudication Following USCIS Change.

The updated USCIS Policy Manual provides needed clarity and transparency to applicants and practitioners in evaluating appropriate evidence to establish a beneficiary’s eligibility for EB-1 classification.

Jackson Lewis attorneys are available to assist in evaluating, preparing, and filing petitions for outstanding researchers and individuals with extraordinary ability.

As the United States carries out projects funded by the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, and the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act, the manufacturing industry must prepare to face staffing challenges in meeting future demand. Immigration can help address the demand. Please see our full article here.

The Department of Homeland Security (DHS) is extending and redesignating Temporary Protected Status (TPS) for South Sudan for 18 months, from November 4, 2023, through May 3, 2025, due the ongoing armed conflict and other ongoing extraordinary conditions.

The Secretary of Homeland Security may designate and redesignate a “foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” Individuals from TPS-designated countries who already have TPS can extend that status (if they still meet all the eligibility requirements) and individuals from countries who entered the United States more recently can make initial applications for TPS.

Those who want to reregister and renew their Employment Authorization Documents (EADs) should do so during the 60-day reregistration period that runs from September 6, 2023, through November 6, 2023. DHS warns that waiting too long could lead to gaps in employment authorization or even loss of status. Because DHS recognizes that even those who apply on time might have a gap in employment authorization, EADs will be automatically extended until November 3, 2024. Individuals with pending EAD applications need not reapply. When their EADs are issued, they will be issued until May 3, 2025.

Individuals who wish to make initial applications for TPS under the redesignations must have continuously resided in the United States since September 4, 2023, and been continuously physically present in the United States since November 4, 2023.

Specific information on how to file for extensions or redesignations can be found in the Federal Register. Information on determining work authorization for those in TPS can be found using the Jackson Lewis online TPS tool.

South Sudanese students in F-1 status who are experiencing severe economic hardship will continue to be able to work additional hours through May 3, 2025.

For information on TPS work authorization and completing Form I-9 Employment Eligibility Verification, please reach out to your Jackson Lewis attorney.

The launch date of the European Travel Information and Authorization System (ETIAS) has been delayed to 2024, as reflected on the official ETIAS website. The date of entry into operation of ETIAS is not yet known, but it is expected to be announced at the end of 2023, according to the European Commission Migration and Home Affairs.

Since early-2016, the European Union (EU) has been working to modernize EU border management through a system such as ETIAS to avoid bureaucracy and delays for travelers, as well as to improve security. ETIAS was initially expected to go into effect in 2021, which was later delayed until 2023. Now, it is slated to launch in 2024.

Similar to U.S. ESTA, ETIAS travel authorization is an entry requirement for visa-exempt nationals travelling to any of 30 European countries for a short-term stay for up to 90 days within any 180-day period. Citizens of countries that currently have visa-free access to the EU (for short stays for business or tourism) who are not travelling on an EU passport will have to apply for ETIAS travel authorization once the ETIAS becomes operational. Among many others, citizens of the United States and the United Kingdom, as well as citizens of Australia and Canada, will need to register with ETIAS before traveling to the EU. Dual citizens who enter Europe with an EU passport will not need to use ETIAS. ETIAS does not replace Schengen visas for those who need one to enter the Schengen Zone. But those who have Schengen visas will not need ETIAS to enter the Schengen Zone.

ETIAS is designed for short-term stays only and does not eliminate the need for visas or work permits for those planning to work or study in Europe. Upon approval, ETIAS will be linked to a traveler’s passport or other travel document and will be valid for up to three years or until the passport expires, whichever comes first. A new passport will require a new ETIAS travel authorization. Because ETIAS is directly linked to the applicant’s travel document, the traveler must enter and exit the EU with the travel document that was used to register for ETIAS and be in possession of the valid ETIAS authorization during their entire stay. ETIAS will be checked by carriers prior to allowing passengers to board transportation (air, land, and sea) into the EU. An ETIAS approval does not guarantee admission. Upon entry, admission decisions will still be made by border guards.

To apply for ETIAS travel authorization, passengers will be required to complete an online application form that covers a range of biometric-, immigration-, and security-related questions, along with the payment of a fee of €7, or approximately $8.00, for those between the ages of 18 and 70 (the fee is waived for all others). In most cases, the processing of applications should take just a few minutes, but individuals are encouraged to apply well in advance of purchasing flights and booking lodging, as the application could be delayed if more information is needed for processing. If so, applicants will receive a decision within four days, or up to 14 days if additional information or documentation is needed, or up to 30 days if an interview is required.

The EU website states, “[E]ven if you need to travel urgently, you still have to have a valid ETIAS travel authorization.” With the upcoming Paris 2024 Olympics games, the number of ETIAS applications is expected to be high. Therefore, if anyone anticipates a visit to the EU in 2024, apply for ETIAS as soon as the application system is fully operational. At the moment, ETIAS is not fully operational, and no applications are being accepted.

Jackson Lewis attorneys are available to assist you with visa-free travel questions and will provide updates when the ETIAS launch date is confirmed and the system is operational.

Green card holders who seek naturalization are required to pass a civics test and demonstrate English proficiency. The test used for this was developed in 2008, and the Biden Administration has announced it is updating the test. The changes are going to be tested in the coming months, and USCIS plans to implement them in late-2024.

While some immigrant advocates believe that the changes can be a hurdle to immigrants, others contend the test should be standardized.


  • Applicants’ spoken English is tested during the naturalization interview by asking them questions about themselves from the information that applicants provided in their naturalization application, such as current and prior residential addresses and employment history. The new process would instead require applicants to describe photographs of daily activities, something that may not lend itself to practice as the photos could vary, although they would be standard for all applicants.
  • Applicants are asked to answer short-answer civics questions orally based on a list of 100 possible questions. In the new test, applicants would have to answer a multi-choice civics test. This type of test may require more English and test-taking proficiency.

Advocacy groups are already making changes in their test preparation programs to help immigrants prepare for the new tests.

After a permanent resident passes the interview and USCIS approves their N-400 Application for Naturalization, the applicant must complete a naturalization ceremony. In an effort to promote voting and expand access to voter registration for new citizens, the Biden Administration has issued policy guidance making it easier for new citizens to register to vote at the conclusion of their naturalization ceremony. Increased voter-registration access at naturalization ceremonies is being implemented immediately as follows:

  • USCIS will provide access to voter registration and information on voting at all administrative naturalization ceremonies.
  • USCIS offices will request that election officials from state or local government election offices attend ceremonies to distribute, collect, and review voter registrations.
  • If government election officials are not available, USCIS offices will coordinate with non-partisan, non-governmental organizations to perform the above duties.
  • To the extent feasible, governmental or non-governmental organizations offering on-site voter registration services will be invited to introduce themselves and address the naturalization candidates.

Jackson Lewis attorneys are available to advise individuals about all naturalization requirements, including strategizing on when to file applications to ensure eligibility criteria are met.