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.

Currently:

  • 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.

USCIS has been issuing challenges and even denials to some H-1B petitions based upon allegations of suspected lottery fraud. USCIS appears to be taking the position that fraud occurs when multiple registrations are submitted on behalf of the same individual.  

Of course, it is possible for more than one company to file a valid H-1B lottery registration for the same foreign national if each company has a genuine job offer for that particular person. USCIS believes that some companies (often related companies) are allegedly colluding to try to increase their chances of being able to fill what is really the same job.

This year, more than 780,000 registrations were submitted for 85,000 H-1B slots. Last year’s figure was closer to 480,000. Reportedly, nearly half of this year’s  submissions were on behalf of foreign nationals with multiple registrations. This large increase in registrations led USCIS to suspect fraud.

To search for possible fraudulent registrations, USCIS goes beyond the information in the registrations. USCIS officers search their data and websites to discover, for example, whether the companies involved are using the same attorneys or agents. They also review the filed H-1B petitions for similarities such as the same boilerplate employer letters. Lastly, they analyze whether companies registering the same individual had contractual or financial relationships.

The basis for the fraud allegations is the attestation that all H-1B petitioners must sign before submitting a registration.

The employer certifies:

that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

In a complaint filed in federal court in Washington state, a group of nine foreign nationals is suing DHS because they believe that their H-1B visa applications were wrongly revoked based upon allegations of lottery fraud. The plaintiffs are arguing that the revocations violated the Administrative Procedures Act because they were not notified in advance and, therefore, had no ability to respond to the fraud allegations. The employers who filed the petitions were the only ones to receive notice of the fraud allegations, even though the foreign nationals also are directly impacted. This is not the first case to press similar allegations. Earlier in August, 70 F-1 visa holders with OPT filed a similar complaint in the same federal court.

Willful misrepresentations to USCIS or other immigration agencies can lead to serious consequences. If such misrepresentations are linked to the foreign nationals involved, they can result in inadmissibility for the foreign nationals. DHS can also make referrals to law enforcement for criminal prosecution of companies that allegedly committed fraud.

Various ways to change the lottery process to solve this problem are under consideration. In the meantime, Jackson Lewis attorneys will continue to monitor these cases and provide updates on the cases and the possible solutions as they become available.

The Department of Homeland Security (DHS) is extending and re-designating Temporary Protected Status (TPS) for both Ukraine and Sudan for 18 months from October 20, 2023 to April 19, 2025. 

The Secretary of Homeland Security may designate and re-designate 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 those countries who entered the United States more recently can make initial applications for TPS.

Those who want to re-register and extend their Employment Authorization Documents (EADs) should do so during the 60-day re-registration period that runs from August 21, 2023 through October 20, 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 October 19, 2024.  Individuals with already pending EAD applications need not reapply.  When their EADs are issued, they will be issued until April 19, 2025.

Individuals who wish to make initial applications for TPS under the re-designations must have continuously resided in the United States since August 16, 2023, and been continuously physically present in the United States since October 20, 2023.

Specific information on how to file for extensions or re-designations can be found in the Federal Register here for Ukraine and here for Sudan.  Information on determining work authorization for those in TPS can be found per the Jackson Lewis online TPS tool.

Ukrainian and Sudanese students in F-1 status who are experiencing severe economic hardship will continue to be able to work more hours on and off-campus through April 19, 2025.

Jackson Lewis attorneys are available to assist with any questions about TPS and work authorization pursuant to that status.

The Department of State is proposing a new rule that would specifically allow third parties (including private attorneys, interpreters, and others) to attend interviews at consulates, embassies, and passport agencies and centers for U.S. citizen services.

These services include but are not limited to appointments for passports, requests for Consular Reports of Birth Abroad (CRBA), and Certificates of Loss of Nationality. The State Department wants to accommodate U.S. citizens who wish to have a third-party with them and believes that most consulates, embassies, and centers have the necessary physical capacity to handle this.

State Department guidance has permitted such third-party attendance in the past, but there have been no specific centralized regulations.

Some consulates, however, have issued detailed guidance. An example is the U.S. Embassy and Consulate in Thailand, which has the following parameters for passport and Consular Report of Birth Abroad appointments:

  • Only one third-party per applicant;
  • An attorney cannot substitute for the applicant;
  • The consular official retains discretion to determine the scope and conduct of the interview;
  • Attorneys are expected to provide guidance before the interview – not during the interview;
  • Attorneys may not engage in legal argumentation during the interview;
  • Third-parties (other than the parent or guardian or a minor child) may not answer questions, summarize, clarify or otherwise interfere with an applicant’s responses;
  • No coaching is allowed;
  • Attendees may not object to questions or instruct the applicant not to answer;
  • Attendees may take written notes, but recording is not allowed; and, of course,
  • Attendees may not be disruptive.

The State Department will be accepting comments on the proposed new rule until September 25, 2023. After the conclusion of the comment period, the Department will issue the final rule and address the submitted comments.

Jackson Lewis attorneys are available to provide advice on all types of consular appointments and services, including third-party attendance at interviews for U.S. citizen services, and will provide updates on the new rule when it is published in the Federal Register.

The Department of Homeland Security (DHS) has issued additional Visa Waiver Program guidance involving Cuba, Hungary, and Israel.

The Visa Waiver Program allows individuals from selected countries to enter the United States for business or tourism for up to 90 days without obtaining a visa. To enter under the Visa Waiver Program, foreign nationals must apply for approval to use the program through the Electronic System for Travel Authorization (ESTA). Typically, approval is received within five minutes.

  • Cuba

Cuba is not a country that is eligible for the Visa Waiver Program. In January 2021, Cuba was designated as state sponsor of terrorism. This meant that individuals (including non-Cubans) who have been present in Cuba on or after January 12, 2021, would be ineligible for visa waiver travel. DHS only recently updated ESTA to capture this information. Those who already have ESTA approvals may have those approvals revoked based upon their travel history. The restriction on visa waiver travel also applies to those who have dual nationality, i.e., they are Cuban and also citizens of a country that is eligible for visa waiver. These newly enforced restrictions do not mean affected individuals cannot travel to the United States, but it means they will have to apply for a B-1 or B-2 visitor visa if they do not meet the very limited exemption criteria.

  • Hungary

The Department of State has long been concerned about the abuse of Hungarian passports. Reportedly, 700 non-Hungarians obtained Hungarian passports and 65 (or more) of those entered the United States under the Visa Waiver Program. The problem started more than 10 years ago, when Hungary started a simplified naturalization process. Due to security concerns, Hungarians will be allowed to enter the United States only once a year on a single ESTA visa waiver screening. Nationals of other visa waiver countries can generally enter the United States multiple times during the two-year ESTA approval.

  • Israel

For more than 10 years, Israel has been requesting entry into the Visa Waiver Program. Until now, Israel had not been able to meet two of the threshold requirements: (1) having a visa refusal rate under 3%; and (2) not restricting the movement of Palestinian-American travelers into Israel. Israel’s visa refusal rate has dropped below 3% and, on July 20, 2023, Israel announced changes to its short-term entry-and-transit-through-Israel policy. The new policy allows U.S. citizens, “without regard to national origin, dual nationality, ethnicity, or religion, including Palestinian Americans on the Palestinian population registry, to travel to and from Israel via all ports of entry, including Ben Gurion Airport.” DHS announced that it would work with the Israeli government to ensure that these requirements are met. Once satisfied that the requirements are being met consistently, Israel should be able to join the Visa Waiver Program.

Jackson Lewis attorneys are available to assist you with questions about eligibility for visa waiver and all of your other international travel needs.

After conducting and completing a second round of selections to reach the FY 2024 H-1B cap, USCIS has notified all prospective petitioners of their selection.

In the second round, USCIS selected an additional 77,600 registrations. The new petition filing period for those selected is from August 2, 2023, to October 31, 2023.

The last time USCIS held multiple selection rounds was for FY 2022. USCIS uses historical data to calculate the number of petitions that must be selected to meet the cap goal. What the agency could not account for that year was the COVID-19 pandemic. Many sponsoring employers ultimately chose not to file petitions due to the unforeseen difficult economic circumstances.

In contrast, USCIS believes the decreased filing rate for FY 2024 is indicative of its extensive fraud investigations including denying and revoking petitions. While USCIS believes it has now selected a sufficient number of registrations to reach the annual 85,000 H-1B visa cap, a third lottery might be in the cards, as in FY 2022.

For those who were not selected, there are possible options to consider. Jackson Lewis attorneys are closely monitoring H-1B Cap-related issues. If you have any specific questions regarding these developments and options for those who have not been selected, please reach out to your Jackson Lewis attorney.

DHS has today, July 25, 2023, published a new Form I-9, Employment Eligibility Form. USCIS has made significant changes to the form and its instructions, including a checkbox to indicate that an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure. USCIS has stated that the “newly updated Form I–9 contains myriad revisions to the form and its instructions to streamline these materials and reduce employer and employee burden associated with the form.”

The new version of Form I-9 [with a version date of “(Rev. 08/01/23)”] will be available for use from August 1, 2023. Employers may use the current version of Form I-9 (Rev. 10/21/19) until October 31, 2023. After October 31, 2023, the prior version of Form I-9 will be obsolete and no longer valid for use. Beginning November 1, 2023, employers who fail to use Form I-9 (Rev. 08/01/23) may be subject to all applicable penalties.

The new Form I-9 will contain two sections and two supplements:

  1. Section 1 of the form continues to collect identifying information about the new hire and requires the employee to attest whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
  2. Section 2 of the form continues to collect identifying information about the employer and information regarding the employee’s identity and employment authorization.
  3. Supplement A, Preparer and/or Translator Certification for Section 1 (formerly at the bottom of Section 1), is completed when employees have preparers and/or translators assist them in completing Section 1 of Form I-9.
  4. Supplement B, Reverification and Rehire (formerly Section 3), is primarily used to verify the continued employment authorization of the employee and for other changes.

USCIS will implement certain changes on the newly updated Form I-9 and form instructions, including the following:

Changes to the Actual Form I-9:

  1. Reduces Sections 1 and 2 to a single-sided sheet. While the new form does not remove any previous fields, it merges multiple fields into fewer fields when possible.
  2. Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A).
  3. Moves the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) for use in a rehire or reverification situation.
  4. Removes use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work.” USCIS has also clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
  5. Ensures the form can be filled out on tablets and mobile devices.
  6. Removes certain features to ensure the form can be downloaded easily. This also removes the requirement to enter “N/A” in certain fields.
  7. Updates the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
  8. Revises the Lists of Acceptable Documents page to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation.
  9. Adds a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than by physical examination.

Changes to Form I-9 Instructions:

  1. Reduces length of instructions from 15 pages to 8 pages.
  2. Adds definitions of key actors in the Form I-9 process.
  3. Streamlines the steps each actor takes to complete their section of the form.
  4. Adds instructions for use of the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.
  5. Removes the abbreviations charts and relocates them to the M-274, Handbook for Employers: Guidance for Completing Form I-9.

DHS further clarifies that, employers do not need to complete the new Form I-9 (Rev. 08/01/23) for current employees who already have a properly completed Form I-9 on file, unless reverification applies after October 31, 2023.

Starting on August 1, 2023, employers may download the new Form I-9 (Rev. 08/01/23) from the USCIS website. For now, the form can be found at https://www.govinfo.gov/content/pkg/FR-2023-07-25/pdf/2023-15667.pdf.

The release of the new I-9 form is part of the changes announced by DHS, including publication of a final rule that will provide eligible employers a new optional alternative procedure to the in-person physical document examination method that employers have followed as part of the Form 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.