Voters in Massachusetts may be asked whether to repeal state law granting standard Massachusetts driver’s licenses to undocumented immigrants in November.

In February 2022, the Massachusetts House of Representatives passed a bill to allow undocumented immigrants to apply for standard Massachusetts driver’s licenses. The bill was then passed by the Massachusetts Senate and vetoed by Governor Charlie Baker. The House and Senate overrode the veto, and the law is set to go into effect on July 1, 2023.

Proponents believe such a law “will improve road safety and assuage immigrants’ worries of being revealed as undocumented and face deportation because of a routine traffic stop of accident.” Other advocacy groups note that it will enable undocumented individuals who work and pay taxes to buy groceries, bring children to school, and access healthcare.

But opponents are still fighting the legislation. Groups are working to place a referendum question for the November elections. Signatures are being gathered to repeal the law. Opponents have various reasons for wanting to repeal the legislation, but they are particularly motivated by a fear that those who receive driver’s licenses will be registered to vote – even though the law states that “people without legal immigration status will not be registered to vote as a result of getting a driver’s license.”

Massachusetts Secretary of State William Galvin will be reviewing the signature petitions to verify that the needed 40,000-signature threshold for a referendum is met. Proponents of the legislation believe that, even if it the question gets onto the ballot, the majority of registered voters support the bill.

Jackson Lewis attorneys will provide updates as they become available.

Responding to the history of legal challenges, the Biden Administration is trying to give the DACA (Deferred Action for Childhood Arrivals) program more heft by changing it from a policy to a regulation. On October 31, 2022, a new final rule will become effective.

To the dismay of many advocates for the “Dreamers,” however, the new final rule simply reinstates the previous policy without making any substantial changes. For instance, the new rule does not reach individuals who were brought to the United States by their parents after 2007 nor does it reach “Documentary Dreamers” who have aged out of their parents’ visas.

Under the new final rule, individuals without lawful permanent status in the United States may apply to defer removal for a renewable period of two years and receive employment authorization. To be eligible, such individuals must have come to the United States while under 16 years of age, have continuously resided in the United States since June 15, 2007, and must have been physically present in the United States on June 15, 2012, and at the time of the DACA application. In other words, the individual must have been in the United States when the original DACA policy was initiated by the Obama Administration.

A federal district court judge in Texas ruled in July 2021 that the DACA policy could not be enforced because it was not enacted correctly. That decision is still on appeal at the U.S. Court of Appeals for the Fifth Circuit. In the meantime, the district judge allowed that those already in DACA status could continue to renew their eligibility, but that new initial applications for DACA could not be accepted. That injunction will remain in effect until a ruling comes down that changes it — even after the new rule goes into effect.

That is why President Joe Biden has made clear that Congress is in the best position to make DACA protection permanent, to change DACA eligibility to encompass a larger group of individuals who have been brought to the United States by their parents, and to provide a pathway to citizenship for DACA and DACA-type beneficiaries.

Jackson Lewis attorneys are available to assist regarding strategies for Dreamers and to advise regarding Form I-9 Employment Eligibility Verification for DACA recipients.

For H-1B visas, employers have been hoping there will be another round of selections for FY 2023, but that is not on the horizon.

USCIS has been sending non-selection notices to registrants’ online accounts. USCIS can only send non-selection notices once it has determined that enough petitions for the regular cap and the advanced degree exemption have been received.

Properly submitted registrations that did not make it will show as “Not Selected” in their accounts. Others may still show as “Submitted” but it is likely that those too will start to show as “Not Selected” in the days to come as the USCIS completes its process.

Last year, USCIS received 308,613 registrations and had three rounds of selections resulting in 131,970 selected petitions to meet the limit of 85,000. In last year’s first round, only 87,000 registrations were selected. This year, USCIS received 483,927 registrations and selected 127,000 petitions in the first round to meet the 85,000 total.

USCIS calculates the number of cases it will select based on historical data regarding the number of petitions that have been filed post-selection and the number of denials forecast. Last year, the COVID-19 pandemic was a big unknown. Now, as was predicted, USCIS seems to have a better grip on the data.

Please reach out to your Jackson Lewis attorney with any questions about the selection process and options for those not selected.

For more than two years, due to the COVID-19 pandemic, the Department of Homeland Security has been allowing employers with remote workers to review Form I-9 Employment Verification Authorization documents virtually over video link or by fax or email. That flexibility is set to expire on October 31, 2022.  Please see our full legal update here.

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.