Syrian Temporary Protected Status (TPS) has been extended and redesignated until March 31, 2024.

Those already holding Syrian TPS must apply for the extension of their status and employment authorization (if desired) during the 60-day registration period beginning August 1, 2022, and running through September 30, 2022. Employment authorization will be automatically extended until September 30, 2023, for those who reapply and have current TPS EADs expiring on September 30, 2022, March 31, 2021, September 30, 2019, or March 31, 2018. Those with currently pending applications for extensions need not reapply because their new approvals will be extended until March 31, 2024.

Because of the redesignation, Syrians who have continuously resided in the United States without TPS since July 28, 2022, may apply during the registration period and beyond, until March 31, 2024.

Syrian TPS applicants also may apply for travel authorization.

Syria was originally designated for TPS in 2012 and the designation has been repeatedly extended since that time based on the ongoing armed conflict and extraordinary temporary conditions including: large-scale destruction of infrastructure, mass displacement of citizens, food insecurity, limited access to water and medical care, widespread civilian casualties, and, more recently, the effects of the COVID-19 pandemic.

Syrian students in F-1 status who have been experiencing economic hardship have had employment limitations suspended since 2021. That suspension is being extended until April 1, 2024, so that they may work more hours, reduce their course loads, and continue to maintain their student status.

For more information on how to verify or re-verify employment authorization for TPS beneficiaries, please reach out to your Jackson Lewis attorney. To check the latest on work authorization extensions for other TPS holders from other countries, see our TPS Work Authorization Tool.

Employers whose employees presented expired List B documents for Form I-9 Employment Eligibility Verification purposes between May 1, 2020, and April 30, 2022, must update Form I-9 with unexpired documents by July 31, 2022.

Since COVID-19 prevented various issuing authorities from renewing documents on time, DHS temporarily instituted a policy allowing employees to present expired List B documents between May 1, 2020, and April 30, 2022. On May 1, 2022, DHS rescinded that temporary policy and announced that those Forms I-9 would have to be updated by July 31, 2022.

If the employee is still employed:

  • Ask the employee to provide an unexpired document that establishes identity. This could be the renewed List B document, a different List B document, or a List A document that establishes both identity and employment authorization.
  • The employer should complete the document’s title, issuing authority, number, and expiration date and initial and date the change in the “Additional Information” box in Section 2 of the Form I-9.

If the initially presented List B document appeared to be expired, but actually was automatically extended by the issuing authority, then it was considered unexpired when presented by DHS. Then, no action is required.

If the employee is no longer employed:

  • No action is required.

While expired List B documents are no longer viable for I-9 purposes, eligible employers may still review Form I-9 documents virtually, over video link, or by fax or email until October 31, 2022. This flexibility continues until an employee undertakes non-remote employment on a regular, consistent, or predictable basis or until the policy is terminated. And the policy may not be terminated. The temporary virtual  I-9 flexibility could be made into a permanent rule,  as DHS is already in the midst of the rulemaking process.

Jackson Lewis attorneys will provide updates as they become available.

U.S. Citizenship and Immigration Services (USCIS) is trying to approve as many employment-based green card applications as it can before the annual deadline of September 30, 2022 (the end of the fiscal year).

Primarily due to COVID-19 restrictions, approximately 140,000 family-based visa numbers went unused last fiscal year. As a result, these unused visa numbers were rolled over to this year’s employment-based visa number allocation; meaning, twice as many employment-based green cards are available this year.

USCIS and the Department of State (DOS) are primarily dealing with processing challenges and backlogs due to restraints imposed by the COVID-19 pandemic, as well as other issues.

What are USCIS and DOS doing in order to appropriately issue all available employment-based visas and hit the 280,000 limit this year? Among other things, the agencies are:

  • Prioritizing processing and adjudication of employment-based adjustment applications at all locations;
  • Prioritizing adjudication of immigrant visa petitions (I-140s) to focus on beneficiaries who are or will be current this year;
  • Providing overtime and supplemental USCIS staff to support the employment-based applications;
  • Initiating an aggressive hiring and training plan for new staff;
  • Waiving interviews and reusing biometrics, where possible;
  • Redistributing cases to match workloads with resources;
  • Establishing a dedicated mailing address for requests from those who wish to transfer their pending cases to a different employment-based category;
  • Encouraging applicants who know their Form I-693, Report of Medical Examination and Vaccination Records, are no longer valid to be prepared to submit a new medical as soon as they receive a Request for Evidence (RFE) (but not submit their I-693 before the RFE is issued);
  • Proactively identifying applications that lack valid medicals and issuing early RFEs; and
  • Temporarily waiving (until September 30, 2022) the requirement that the civil surgeon sign the Form I-693 no more than 60 days before the applicant files for adjustment of status.

DOS issued 19,799 immigrant visas and USCIS used 175,728 immigrant visas (through adjustment of status applications) for a total of 195,507 out of the available total of 262,288. Accordingly, 66,781 employment-based visas went unused. In comparison to this year, these respective agencies noted that, as of mid-June, they had used many more employment-based immigrant visas than they did at the same point in time last year, and they are continuing to adjudicate these respective applications at a higher rate than last year. According to USCIS, they are “well-positioned to use all the available employment-based immigrant visas in FY 2022 ….”

If you have any questions about pending green card matters, please reach out to your Jackson Lewis attorney.

Some Temporary Protected Status (TPS) holders will once again be able to overcome inadmissibility for adjustment of status purposes by traveling internationally because USCIS is updating its interpretation of MTINA, the Miscellaneous and Technical Immigration and Naturalization Amendment of 1991.

As of July 1, 2022:

  • USCIS will no longer use the advance parole mechanism to authorize travel for TPS purposes.
  • Instead, USCIS will provide a new TPS travel authorization document (Form I-512T, Authorization for Travel by a Noncitizen to the United States) that will serve as evidence of the prior consent for travel and as evidence that the bearer may be “inspected and admitted” back into the United States in TPS pursuant to MTINA, if all other requirements are met.

Shortly after the TPS program was created in 1990, the legacy INS specified that permission to travel in TPS would be issued by advance parole. With MTINA, Congress indicated that TPS holders who returned to the United States using advance parole would be “admitted in the same immigration status the alien had at the time of departure ….” Based upon this,  those who were paroled after authorized travel often met the requirement of being paroled or inspected and admitted for adjustment of status purposes. This meant that some TPS holders who had entered the United States illegally or who entered legally but subsequently fell out of status were able to overcome that impediment to obtaining a green card through adjustment of status by traveling abroad and returning on advance parole. This  interpretation remained in effect until 2020, when USCIS adopted the decision in Matter of Z-R-Z-C, which reversed that interpretation for anyone who traveled abroad after the 2020 adoption.

USCIS has been persuaded that the “old” pre-Matter of Z-R-Z-C interpretation more accurately expresses the legislative intent of MTINA. In other words, those TPS holders who return to the United States after pre-approved travel will have met the “lawful admission” requirements for purposes of immigration benefits.

What does this mean?

  • In general, barring criminal histories, TPS beneficiaries who previously traveled on TPS advance parole prior to the recission of Matter of Z-R-Z-C would be considered to be “inspected and admitted” for adjustment of status purposes, but USCIS will conduct a case-by-case analysis.
  • TPS beneficiaries who travel post-recission of Matter of Z-R-Z-C with advance permission (even those who would otherwise be subject to the three and ten year bars) absent criminal histories, will also be considered “inspected and admitted” for adjustment of status purposes.
  • But TPS beneficiaries with potential removal orders or who were detained by immigration at any point or who appeared before an immigration judge should confer with an immigration attorney before applying for adjustment of status even if they travel or traveled with advance permission and returned to the United States because they may still be subject to admissibility bars.
  • Finally, any TPS beneficiary who entered the United States legally, but then overstayed or worked illegally for less than 180 days and who is applying for adjustment of status based upon an approved employment-based immigration visa petition is considered admissible and can adjust status in the United States without doing any additional travel – barring criminal histories.

Jackson Lewis attorneys are available to assist TPS beneficiaries with strategies regarding the new complicated USCIS guidance.

 

Temporary protected status (TPS) for Venezuelans already in the United States has been extended until March 10, 2024.

Venezuelan TPS was first announced by Secretary of the Department of Homeland Security Alejandro Mayorkas in March 2021 due to the country’s severe political and economic crisis. That status was set to expire on September 9, 2022, but the grant has been extended for another 18 months. This extension, however, applies only to individuals who have continuously resided in the United States since March 8, 2021. In other words, the grant of an extension only and not a redesignation means that Venezuelans who came to the United States after March 8, 2021, still do not qualify for TPS.

DHS will publish instructions in the Federal Register for those who are eligible about how to re-register and apply for an Employment Authorization Document. Applications should not be submitted before those instructions are published.

It is reported that some 250,000 Venezuelans have entered the United States since the original March 8, 2021, designation date. Advocacy groups are happy about the renewal but dismayed that the Biden administration has not opened up TPS to these Venezuelans who are fleeing the Maduro regime. Some members of Congress have also expressed their concern about the lack of a redesignation.

Jackson Lewis attorneys will provide updates as they become available.

President Joe Biden has extended Deferral of Enforced Departure (DED) and employment authorization for Liberians until June 30, 2024. Accordingly, the Department of Homeland Security (DHS) will publish instructions regarding the implementation in the Federal Register.

Because of armed conflict, civil strife and Ebola, Liberians were granted Temporary Protected Status (TPS) in 1991. By 2007, the grant of TPS ended, but President George W. Bush instead granted DED status to Liberians in the United States. That status continued to be extended by successive administrations. In December 2019, Congress enacted the Liberian Refugee Immigration Fairness (LRIF) provisions of the National Defense Authorization Act. LRIF provided Liberians the ability to apply for adjustment of status and further extended DED so that Liberians could continue to obtain employment authorization during the transition period. Because of delays associated with the LRIF program, DED was extended through June 30, 2022.

In order to protect more Liberians who have not received green cards, have not been able to return to Liberia since 2017, and have since established family and community ties to the United States, President Biden decided to continue Liberian DED and employment authorization through June 30, 2024, for any Liberians who:

  • Are present in the United States and have been under a grant of DED since June 30, 2022; or
  • Have been continuously physically present in the United States since May 20, 2017.

These individuals must also meet general admissibility requirements and may not have voluntarily returned to Liberia or their country of last habitual residence for more than 180 days in aggregate.

Reportedly, approximately 4,000 Liberians hold DED status and there are at least as many U.S.-citizen children of Liberian DED holders.

Those interested in applying for DED and employment authorization extensions should await further instructions from DHS.

Automatic Employment Authorization Document (EAD) extensions are confusing. Before you can figure out whether one of the various extensions applies, you need to identify the EAD category.

Certain EAD applicants are entitled to 180-day automatic extensions if they have pending, timely filed EAD renewal applications. The code on the face of the expired EAD indicates eligibility.

Those who are eligible include:

  • Refugees (A03)
  • Asylees (A05)
  • Parent or dependent child of an international organization employee granted permanent residence (A07)
  • Citizens of Micronesia, the Marshall Islands or Palau admitted as nonimmigrants (A08)
  • An individual granted withholding or deportation or removal (A10)
  • Certain asylum applicants (C08)
  • Adjustment of status applicants (C09)
  • NACARA applicants for suspension of deportation or cancellation of removal (C10)
  • Registry applicants (C16)
  • Special agricultural workers (C20)
  • Legalization applicants under INA 245A (C22)
  • LIFE applicants (C24)
  • VAWA beneficiaries and children (C31)
  • Temporary Protected Status (TPS) beneficiaries (A12 and C19)

Applicants who are entitled to 180-day automatic extensions are now entitled to 540-day automatic extensions if:

  • They have pending timely filed EAD renewal (even if their 180-day extension has already expired); or
  • They timely file an EAD renewal application between May 4, 2022, and October 26, 2023; and
  • They are requesting a renewal in the same category as the expired EAD (except for TPS beneficiaries who may mix and match A12 and C19 codes).

For filings after October 26, 2023, the 540-day renewal will sunset leaving only the 180-day extension.

Certain H (C26), L (A18), or E (A17) spouses are also entitled to 180- or 540-day automatic renewals, but the automatic extensions cannot exceed their Form I-94 end dates. Moreover, L or E spouses with proper annotations on their I-94s have employment authorization incident to status, so they may not need an EAD.

To ease the 540-day calculation, USCIS has created a new tool, an EAD Automatic Extension Calculator. The calculator helps to determine the 540-day end date, once you know if the 540-day automatic renewal applies.

If you have questions about calculating EAD extensions or preparing Form I-9 Employment Verification Authorizations in these situations, Jackson Lewis attorneys are available to assist you.

The Department of Homeland Security (DHS) is considering making a change which would permanently allow the flexibility it has extended over employers’ verification of employees’ identity and employment eligibility since March 2020.

Historically, Form I-9 has required employers to physically inspect original documentation presented by employees in a face-to-face interaction. Over the years, workforces have become increasingly remote, and the COVID-19 pandemic has sped up the trend. In reaction to the COVID-19 emergency, the government temporarily lifted the in-person I-9 document inspection requirement, allowing a virtual I-9 process. Employers are exempted from the in-person document verification requirements associated with Form I-9 Employment Eligibility Verification until October 2022.

The virtual I-9 process proved to be popular with many employers and employees, who provided hundreds of supporting comments in response to a Request for Information last fall. Likely in reaction to this, in its Fall 2021 Regulatory Agenda, DHS included the Optional Alternative to the Physical Examination Associated with Employment Eligibility Verification rule. It stated in the summary:

DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers. Future exercises of such authority may reduce burdens on employers and employees while maintaining the integrity of the employment verification process.

Employers have long-observed that conducting Form I-9 verification virtually allows companies to centralize their I-9 processes so that experienced staff can conduct all the reviews.   Employers also believe that a virtual process eliminates barriers to hiring individuals for whom remote work is a necessity, such as those who live in rural areas or have physical disabilities that make it impossible to attend an in-person I-9 verification.

Many questions remain about the possible new rule:

  • Under what circumstances will flexibility be allowed?
  • Will this apply to all employers or only to some based upon size, industry, or past compliance records?
  • Will there be a quid pro quo such as requiring the use of E-Verify or enrollment in the IMAGE program?
  • Will a fee or a fee structure be involved?
  • Will staff training be required?
  • Will there be more audits and investigations?

The government has not set a timeline to finalize a new rule on a virtual I-9 process. If you have any questions about Form I-9 or E-Verify processes or compliance, please reach out to your Jackson Lewis attorney. We will continue to monitor this situation and provide updates as they become available.

Employers doing PERM cases need to be on the lookout for local laws that require salary transparency in recruitment ads. Pursuant to the Department of Labor’s PERM regulations, recruitment advertisements must include only the name of the employer, the job location, directions on how to apply for the position, and a description of the position specific enough to apprise U.S. workers of the opportunity – not salary information. Local laws may impose additional requirements.

The new salary transparency in job advertisements law in New York City, effective November 1, 2022, and enacted as part of the New York City Human Rights Laws, will require most job postings for positions that can or will be performed in whole or in part in New York City to include a good faith salary range. In addition:

  • The new law applies to all employers with at least four employees – with at least one employee working in New York City. The definition of salary does not include other forms of compensation or benefits, such as commissions or bonuses, stock options, or employer provided insurance.
  • The position must be one that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home, and whether part-time or full-time. If the position is fully remote and can be performed from “anywhere,” then the position would be covered because it could be performed in New York City.
  • Both the minimum and maximum salary must be included – if there is no flexibility in the salary, the minimum and maximum salary would be the same. In the PERM situation, the salary on the recruitment ads would match the salary on the PERM Notice of Filing (NOF). In Special Handling Cases, under DOL regulations, NOFs do not require a salary range. If the college or university and the position meet the new law eligibility requirements, however, the NOF and the recruitment advertisements should include the salary range.
  • All types of advertisements are covered: postings on internal bulletin boards, internet ads, printed flyers distributed at job fairs, and newspaper advertisements. This would appear to include all types of PERM ads.

The New York City Commission on Human Rights will enforce the law based upon tips and may initiate its own investigations. Individuals also may file complaints in civil court against their current employers. Violators may have to pay monetary damages and civil penalties. They also may be called upon to engage in affirmative relief, such as amending advertisements, updating policies, and conducting training. The purpose of pay transparency laws is to promote pay equity. Colorado has a similar Transparency in Pay Act, instituted in 2021, covering employers that have at least one employee in Colorado. Washington also has a similar law that will become effective on January 1, 2023. While New York City, Colorado, and Washington are the only localities with laws that do or will require salary rates in all job postings, other states have pay transparency laws that require salary disclosure at certain points in the hiring process and, at some point, may require salary ranges in advertisements. Recently, New York State passed Senate Bill S9427A, which would amend Section 194 of the New York Labor Law to require the disclosure of compensation ranges in job, promotion, and transfer advertisement state-wide. The bill would require all employers with at least four employees to include the compensation, or a range of compensation, for any job advertisement that “can or will be” performed, at least in part, in New York. The bill currently defines a “range of compensation” as the “ minimum and maximum annual salary or hourly range of compensation” for a particular job. The pay transparency bill will go into effect 270 days after being signed into law by Governor Kathy Hochul.

If you have questions about PERM and the New York City, Colorado, New York, or Washington salary transparency laws, please reach out to your Jackson Lewis attorney.

 

All visitors, except U.S. citizens, returning resident aliens, immigrant visa holders, and most Canadian citizens, must receive a Form I-94, Arrival/Departure record at the port of entry. Because travel is picking up, Customs and Border Protection (CBP) is encouraging travelers to fill out an I-94 application online in advance to reduce wait times and speed their arrival.

CBP has other travel tips for those arriving at the northern land border:

Jackson Lewis attorneys are available to assist with questions about entry requirements at the borders.