The Deferred Action for Childhood Arrivals (DACA) policy continues to be under attack. In Judge Andrew Hanen’s court in the Southern District of Texas, a coalition of Republican states filed a motion for summary judgment in a long-pending case alleging that the Biden Administration’s new DACA rule is no more valid than the original DACA policy.

The DACA policy was instituted in 2012 during the Obama Administration without going through the rulemaking process. It allows temporary protection from deportation for undocumented immigrants who came to the United States under the age of 16. The policy has been challenged for years through litigation at all levels of the federal courts, including the U.S. Supreme Court. Despite unfavorable rulings, the program continues, at least in part, based on litigation stays. Currently, “Dreamers” with DACA status may continue to renew their statuses and their employment authorization (EADs). New initial applications may be accepted by USCIS, but they cannot be adjudicated due to the current litigation. Even though the Biden Administration re-issued the new policy through a rulemaking process – DACA beneficiaries still remain in a kind of limbo today due to the litigation. The only permanent solution would be federal legislation, but that has yet to make its way through Congress.

The coalition of states led by Texas with their summary judgment motion is asking the court to invalidate the new Biden rule and provide a two-year “grace period” during which current DACA beneficiaries could continue to renew their DACA statuses and EADs while planning for their lives post-DACA.

DACA is not an immigration status nor is it pathway to a permanent residence, i.e., a green card. Most DACA recipients have limited options for relief. And those with options need to carefully examine their strategies and should consult with competent immigration counsels to avoid the risk of being barred from returning to the United States.

Jackson Lewis attorneys are available to assist those who are navigating these tricky waters by analyzing specific options and the risks involved.

For the first time in almost 20 years, the U.S. Department of State (DOS) may resume issuing nonimmigrant visas within the United States later this year. Reports indicate that a pilot program will allow stateside renewal of H-1B and L-1 visas.

The Department of Homeland Security has exclusive jurisdiction within the United States over the adjudication of petitions for immigration benefits, as well as the inspection and admission of persons seeking entry to the United States. DOS, however, has exclusive authority to issue visas. Currently, a visa may be issued only at a U.S. embassy or consulate located outside the United States.

The ability to renew a visa within the United States is commonly referred to as “stateside processing.” This option provides an efficient means for nonimmigrants to renew their visa without the need to plan international travel around appointment availability or time uncertainties associated with a visa application filed at a U.S. consulate abroad.

The suspension of routine visa processing at U.S. consulates during the early days of the COVID-19 pandemic and the resulting extensive backlog of appointments highlighted the challenges inherent in the system that relies on personal appearance at a consulate. Partly in response to these conditions, DOS introduced or expanded discretionary authority of consular officers to waive the personal appearance of nonimmigrant visa applicants under certain conditions. For example, through December 31, 2023, the visa interview may be waived for certain first-time and renewing nonimmigrant visa applicants who previously were issued any type of visa or previously traveled under the Visa Waiver Program, who have no unresolved refusal of a visa, and who currently have no ineligibility. In addition, applicants renewing a visa in the same classification within 48 months of the prior visa’s expiration also are eligible for interview waiver. This waiver option is in place indefinitely.

Stateside visa processing would be a logical extension of the interview waiver process. Regulations already provide discretionary authority to issue visas to certain nonimmigrants present in the United States who are seeking to renew a visa in the same category. Prior to July 2004, DOS operated a stateside visa process. That program was suspended in 2004 due to new security measures requiring biometrics from visa applicants. At the time, DOS reported that it was not feasible for it to gather biometrics within the United States. As illustrated by the current broad use of interview waiver authority, accessing and reutilizing biometrics previously captured no longer is an obstacle to issuance of a visa without the presence of the applicant.

Nonimmigrants with H-1B, H-4, L-1, and L-2 visas who may utilize stateside visa processing should remember that the validity of their presence within the United States is governed not by the visa’s expiration date, but by the Form I-94 admission record issued by Customs and Border Protection at the port of entry.

The documentation requirements, application procedures, and expected timeline for stateside visa processing are not yet known. We will provide updates on this and other developments. Please contact a Jackson Lewis attorney with any questions.

Hong Kong activists living in the United States in Deferred Enforced Departure (DED) status worried about whether their DED extended beyond the February 5, 2023, deadline. On January 26, 2023, by way of a memorandum, President Joe Biden extended and expanded eligibility for DED for certain Hong Kong residents for 24 months, until 2025.

In his announcement, President Biden said that since June 2020, by imposing on Hong Kong the Safeguarding National Security law, the People’s Republic of China has “undermined the enjoyment of rights and freedoms in Hong Kong . . . and has continued its assault on Hong Kong’s autonomy, undermining its remaining democratic processes and institutions, imposing limits on academic freedom, and cracking down on freedom of the press.”

DED is a humanitarian administrative stay of removal and is authorized based upon the president’s constitutional authority to conduct foreign relations. DED was first authorized for Hong Kong residents in August 2021. Although there is no application for DED, those who are eligible may apply for employment authorization in the United States. The initial grant of DED for Hong Kongers who were in the United States on or before August 5, 2021, was due to expire on February 5, 2023. Those individuals will be eligible for an automatic extension of DED until February 5, 2025. Hong Kongers who arrived after August 5, 2021, but have continuously resided in the United States since January 26, 2023, are eligible for the new 24-month initial grant of DED. The Biden memorandum also directed the Department of Homeland Security (DHS) to consider further suspension of F-1 nonimmigrant requirements for students from Hong Kong.

Documents establishing Hong Kong nationality and, therefore, eligibility for DED include:

  • HKSAR passport;
  • British National Overseas passport;
  • British Overseas Citizen passport;
  • Hong Kong Permanent Identity Card; or
  • HKSAR Document of Identity for Visa Purposes.

A full description of eligibility and how to apply for employment authorization will be published in the Federal Register by DHS. Hong Kongers who voluntarily returned to Hong Kong or the PRC after January 26, 2023, and those with certain criminal convictions, are not eligible for DED. Additionally, those whose presence presents a danger to public safety or would have potentially adverse foreign policy consequences for the United States are ineligible for DED.

New applications for employment authorization should not be submitted until after the instructions appear in the Federal Register.

Please contact a Jackson Lewis attorney if you have any questions.

The Department of Homeland Security (DHS) has announced the extension and redesignation of Temporary Protected Status (TPS) for Somalia for 18 months from March 18, 2023, to September 17, 2024.

The extension will allow approximately 430 Somali nationals who are already in TPS to extend their status and renew their employment authorization documents (EADs). It is estimated that some 2,200 Somali nationals who are not already in TPS will be able to make initial applications for TPS under the redesignation, assuming they meet all eligibility requirements and entered the United States on or before January 11, 2023.

TPS for Somalia is being extended and redesignated due to the “[l]ong-standing conflict [in Somalia], along with natural disasters and disease outbreaks, [that have] worsened an already severe humanitarian crisis.” Terrorism, violent crime, civil unrest, and fighting among militia clans also make it virtually impossible for individuals to return.

DHS will publish instructions on how to re-register or file initial registrations in the Federal Register. Until that time, individuals should not file any applications.

Please contact a Jackson Lewis attorney with any questions.

USCIS is extending the validity of conditional permanent residence cards, or green cards, for 48 months beyond the card’s expiration date.

The move is in response to the long processing delays for those filing petitions to remove conditions on residence – the Form I-751, Petition to Remove Conditions on Residence for certain individuals who gained their status through marriage and the Form I-829, Petition by Investor to Remove Conditions on Permanent Residence Status.

USCIS is changing the language on the receipt notices for these petitions and will issue new receipt notices to individuals whose cases are pending and already received receipt notices with shorter extensions.

Individuals will be able to present the new receipt notices with their expired green cards as evidence of continued status and for employment authorization and travel purposes.

In making this announcement, USCIS also reminded conditional green card holders that if they plan to be outside of the country for a year or more, they should apply for a re-entry permit before leaving the United States.

Along with this, USCIS has also redesigned Permanent Residence Cards and Employment Authorization Documents to improve service and increase security. The new cards will have more “detailed artwork; tactile printing that is better integrated with the artwork; enhanced optically variable ink; highly secure holographic images on the front and back of the cards; a layer-reveal feature with a partial window on the back photo box; and data fields displayed in different places than on previous versions.”

Although new cards are being introduced, current cards remain valid until their expiration date or until the end date of any automatic extension as indicated by an I-797, Notice of Action, receipt or in a Federal Register notice. Indeed, USCIS will continue to use their existing card stock even as they roll out the new cards. Both versions will be acceptable. There are some older green cards that do not have any expiration date. Those remain valid, but USCIS encourages holders to “consider applying for a replacement card to prevent fraud or tampering should the card ever get lost or stolen.”

Please contact a Jackson Lewis attorney with any questions.

The H-1B cap season for Fiscal Year 2024 is fast approaching.  USCIS announced on January 27th that cap registration begins on March 1st. Employers should assess their hiring needs and determine if they will sponsor foreign workers for H-1B classification this year. Now is the time to begin preparing.

The H-1B visa category is for foreign workers who will perform services in a specialty occupation. Essentially, a specialty occupation is one that requires at least a bachelor’s degree in a field relevant to the job offered. Examples of H-1B occupations include fields in architecture, science, engineering, medicine and health, accounting, and law.

In addition, the foreign worker must possess the requisite education credentials for the specialty occupation. H-1B beneficiaries may include both recent foreign student graduates present in the United States in F-1 student status and any other foreign professional whether currently in the United States or abroad.

There is a statutory cap of 65,000 H-1B visas (regular cap), with an additional 20,000 visas for foreign professionals with an advanced degree from a U.S. academic institution (master’s cap). In recent years, the demand for H-1B visas has far exceeded the number of visas available in the annual quota:

In 2020, USCIS implemented an electronic registration system for the H-1B cap to manage the increasing demand for H-1B visas. The electronic registration system alleviates the burden of preparing and filing a full H-1B petition before knowing if a visa is available in the quota. Rather than file a full H-1B petition, employers electronically register foreign workers in the H-1B cap by providing basic information and paying a registration fee. While registration requires only basic information, the employer should know in advance if the case, if selected, would be approvable. In other words, whether the employee and the position meet the specialty occupation and wage requirements for H-1B classification. In the past couple of years, the registration period was open for at least 14 days during the month of March.

If USCIS receives more registrations than there are H-1B visa numbers available, USCIS conducts a random lottery to select the registrants who may be the beneficiary of an H-1B petition. Those selected are notified and provided instructions on where and when to file the H-1B petition. The employer then may file an H-1B petition for each selected worker. The earliest possible date to request H-1B status in the petition is October 1, 2023, which is the start of federal Fiscal Year 2024.

USCIS should soon announce the H-1B electronic registration process for Fiscal Year 2024. In preparation of the upcoming H-1B cap filing season, interested employers should immediately evaluate and identify potential candidates for H-1B classification and assemble proposed job descriptions and salary offerings. Taking these preliminary steps now will permit timely review of each prospective worker’s H-1B eligibility and ensure electronic registration within the designated period.

Jackson Lewis attorneys are available to assist in navigating the upcoming H-1B cap season and defining strategic options to sponsor foreign workers.


The Department of Homeland Security (DHS) has announced that Temporary Protected Status (TPS) for Haiti will be extended and redesignated for 18 months from February 4, 2023, until August 3, 2024.

TPS for Haiti had been extended five times, until January 22, 2018, due to economic, security, political, health care, and humanitarian crises. DHS announced the termination of TPS for Haiti effective July 22, 2019, but that announcement was stayed by federal injunction.  As a result, the existing TPS designation for Haitians remains in effect. In 2021, Secretary Alejandro Mayorkas newly designated Haiti for TPS effective August 3, 2021, through February 3, 2023.

The most recent extension and redesignation until August 3, 2024, means that:

  • Haitians already in TPS that expires on February 3, 2023, must apply for an extension of their status and their work authorization (EADs) during the 60-day re-registration period beginning January 26, 2023, and running until March 27, 2023.
  • Even those Haitians whose TPS and EADs have been extended until June 30, 2024, due to the pending litigation should re-register during the 60-day re-registration period and apply for EADs to ensure their status and work authorization continue until August 3, 2024.
  • Those with TPS EADs expiring on February 3, 2023, are eligible for an automatic extension until February 3, 2024, while they await adjudication of their new extension applications.
  • Those with pending re-registration and employment authorization applications need not re-apply. When their cases are adjudicated, if approved, they will be extended until August 3, 2024.
  • Haitians who are not currently in TPS may make an initial application under the redesignation if they have continuously resided in the United States since November 6, 2022, can show they have been continuously physically present in the United States since February 3, 2024, and meet the other general eligibility requirements.

Reportedly, approximately 101,000 Haitians are in the United States in TPS and more than 50,000 applications from Haitians are pending with USCIS. Due to the redesignation, another 110,000 Haitians may become newly eligible for TPS.

As a reminder, Haitians who received their initial TPS designation in 2011 and had their statuses extended by DHS until June 30, 2024, based on the pending litigation also had their EADs extended until that date. That extension remains in effect and details on how to determine whether that extension applies were posted in the Federal Register on November 16, 2022.

While Haitians who are living abroad are not eligible for TPS, they may apply for humanitarian parole for up to two years if they have a financial sponsor.

Jackson Lewis attorneys are available to assist regarding the re-registration process and provide advice about when Form I-9, Employment Verification Authorization, reverification is required and how to complete the forms.

In a settlement agreement signed on January 19, 2023, USCIS agreed to “bundle” the adjudication of dependent applicants’ Form I-539 (Application to Extend/Change Nonimmigrant Status) and Form I-765 (Application for Employment Authorization) with the primary applicant’s Form I-129 (Petition for Nonimmigrant Worker) if the forms are filed together as one package.

Stemming from a settlement reached with USCIS in a class action litigation, the agreement marks a return to the previous practice of concurrent adjudication and provides a significant benefit to foreign national families living and working in the United States.

Reviewing primary and dependent applications concurrently streamlines the adjudication process, reduces processing times, ensures consistent expiration dates for family members, and eliminates lengthy gaps in work authorization for dependent applicants.

The agreement, as currently written, does not allow for concurrent review if the applications are filed separately.  

Recognizing the impact of dependent spouses engaged in the U.S. workforce, and their contributions in rebuilding and revitalizing the U.S. economy, USCIS has taken other measures to decrease processing times and permit automatic extensions of employment authorization, where appropriate, including:

In other efforts to speed up adjudication, as of January 30, 2023, USCIS will expand premium processing to all employment-based categories of Form I-140 (Immigrant Petition for Alien Workers), including for multinational executives or managers, and those seeking national interest waivers, whose work has substantial merit and national important to the United States.

USCIS has adopted a phased approach in the expansion of premium processing over the past year, as the agency is required to adhere to the legislative requirements to ensure expansion of the premium processing program does not adversely impact other categories of applications or consequently increase processing times for other benefits.

Jackson Lewis attorneys are available to assist with questions or advice regarding the timing of petitions and applications.

As of January 6, 2023, Cubans, Haitians, Nicaraguans, and Venezuelans and their immediate family members may be eligible for safe passage into the United States for up to two years as parolees if they have a financial supporter. This program is like the Uniting for Ukraine program. Organizations, including companies, can provide the financial support and, upon admission, the parolees may apply for Employment Authorization Documents (EADs).

Proposed beneficiaries cannot apply directly. Supporters must start the process.

The first step is for the supporter to submit a Form I-134A, Online Request to be Supporter and Declaration of Financial Support, including documentation proving they are able to financially support the beneficiaries they are agreeing to support. Only after that application is reviewed and adjudicated will USCIS notify the proposed beneficiary and provide instructions about how to proceed. The beneficiary will be told how to submit biographic information online and, if approved, will eventually receive travel instructions. They will be told to arrange to fly directly to their destination in the United States. Upon arrival at a U.S. port of entry, the beneficiary will be vetted again before being paroled into the country. Beneficiaries should not attempt to enter through a land port of entry as that will likely lead to a denial.

Financial supporters must be U.S. citizens or nationals, legal permanent residents (“green card holders”), conditional permanent residents, non-immigrants in lawful status, asylees, refugees, parolees, and beneficiaries of TPS, DACA or Deferred Enforced Departure (DED). While an individual must submit the Form I-134A, they can do so in association with or on behalf of an organization, business, or other entity that will provide some or all the support. Individuals who file the form on behalf of an organization must submit a letter of commitment or other documentation from an officer or other credible representative of the organization or business describing the monetary or other types of support they will provide. Beyond monetary support, other forms of support can include housing, basic necessities, and transportation. When an individual is submitting the form on behalf of an organization that will be providing the necessary level of support, the individual need not submit their own financial information.

Applications will be considered on a case-by-case basis. The grant of parole is discretionary, based on urgent humanitarian reasons or if the applicants would provide a significant public benefit to the United States.

To be eligible, proposed beneficiaries must:

  • Have a financial supporter in the United States;
  • Undergo robust security screening;
  • Have a passport valid for international travel;
  • Meet vaccination requirements;
  • Provide their own transportation to the United States, if approved for travel;
  • Meet other general requirements; and
  • Warrant an exercise of discretion.

If you have questions about supporting a national from Cuba, Haiti, Nicaragua, or Venezuela or about the Uniting for Ukraine program, please reach out to your Jackson Lewis attorney.

The Biden-Harris Administration has taken steps to enhance the ability of U.S. STEM (science, technology, engineering, and math) businesses to hire qualified foreign students and graduates as exchange visitors. Interested STEM businesses could become Host Organizations for J-1 Visa Exchange Visitors.

In a statement released by the White House, STEM talent is identified as “critical to the prosperity, security, and health of the Nation.” The ability of the U.S. to attract global talent in the past, according to the announcement, “has spurred path-breaking innovation” leading to new jobs, new industries, and new opportunities for Americans. American businesses are looking for ways to find more STEM talent.

The Early Career STEM (Science, Technology, Engineering and Math) Research Initiative allows STEM businesses to act as hosts to exchange visitors by proactively reaching out to recruit foreign STEM graduates for various temporary programs, including internships and training. These exchange programs are meant to bring emerging leaders to the United States to make lasting international connections and to transform U.S. operations through international exchange.

STEM employers interested in becoming a J-1 Host Organization can contact BridgeUSA, a program within the Department of State’s Bureau of Educational and Cultural Affairs. BridgeUSA reviews the opportunity and connects the employer/host organization with an appropriate approved J sponsor. The list of sponsors includes exchange visitor groups, universities, and other business groups. The J sponsor recruits and screens candidates for the employer/host. Once the STEM employer/host identifies the best candidate match, the J sponsor issues the necessary documents to the candidate so that the STEM graduate can apply for a J visa at a U.S. consulate abroad. The exchange program can be fully funded by the employer/host organization, or the funding can be hybrid in nature, with the STEM graduate paying some of the funding cost. As with other J programs, some participants in the program will become subject to the two-year home residence requirement.

The Early Career STEM Research Initiative is part of the Biden administration’s plan to encourage STEM graduates to join the U.S. economy. Other initiatives have included adding new degree fields to the STEM list, making STEM students in J-1 status eligible for 36 months of OPT (instead of 18), and broadening eligibility for O visas and National Interest Waivers for those in STEM fields.

Jackson Lewis attorneys are available to assist you in finding ways to use J visa programs to fill temporary needs.