Passport stamps used to be treasured mementos for some travelers, but they are quickly becoming a thing of the past. Instead, biometrics and electronic entry systems are being deployed. But that is not the only thing that is changing. Now, in many countries, e-Gates may take the place of customs officers.

E-Gates automate border control by comparing biometrics data found in electronic passports (ePassports) with biometrics captured “live” at the gate. Of course, not every country uses these and not everyone is eligible to use the automated “lanes.” The countries that are using e-Gate technologies at some their airports include Australia, France, Italy, Mexico, Portugal, and the United Kingdom. As these programs are rolled out, more countries are being added to the eligibility lists.

 To use e-Gates, individuals generally must have:

  • ePassports or a passport book containing an embedded chip with biometric data valid for 180 days from an eligible country; and
  • Be of a certain age – at least 16 or 18 years of age.

At e-Gates, the “contactless” process allows travelers to be inspected and admitted to the destination in an efficient manner and significantly reduces the delay at the customs and inspection windows.

While e-Gates provide a convenience and speedy process, some individuals may still be subjected to secondary inspection if the e-Gate system deems necessary and at some airports, a quick meeting with a customs officer is still required after passing through the e-Gate.

Although the United States currently does not have e-Gates, Automated Passport Control (APC) streamlines the entry process for U.S. citizens, U.S. legal permanent residents, Canadian citizens, eligible Visa Waiver Program participants, and certain U.S. visa holders by automating the primary inspection process. Travelers scan their passports, take a photograph and answer inspection-related questions verifying biographic and flight information at a kiosk. They will receive a receipt, which must be shown to the CBP Officer, along with their passport, to finalize inspection.

APC is available at airports in Albuquerque (NM), Newark (NJ), Oakland (CA), Ontario (CA), Philadelphia (PA), Salt Lake City (UT), St. Petersburg-Clearwater (FL), Stewart (NY), T.F. Green (RI), and Vancouver Seaport (Canada).

As more and more countries start using automation to improve their customs and entry process, it is important to check your arrival airports to see if an e-Gate system is available and exactly what the eligibility requirements are for using them. If an e-Gate is not an option, you can check for registered traveler programs that could also speed your entry. These “trusted traveler” programs are also available in the United States.

Finally, since your passport will no longer have stamps documenting your exits and entries, you should follow instructions from the relevant system to obtain that documentation and maintain your travel records.

If you have any questions about requirements for travel abroad including visa requirements, Jackson Lewis attorneys are available to assist.

The Ninth Circuit Court of Appeals has agreed to an en banc rehearing in Ramos v. Mayorkas, potentially further extending Temporary Protected Status (TPS) for tens of thousands of individuals with current status from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan who have been in limbo waiting on a final ruling in the this case.

By way of background, in 2018, a federal district court in California issued a nationwide injunction preventing the Trump Administration from terminating TPS status for El Salvador, Haiti, Nicaragua, and Sudan. Soon thereafter, TPS beneficiaries from Honduras and Nepal were also given injunctive relief.

In 2020, a three-judge panel on the Ninth Circuit set aside the district court ruling, but the termination did not go into effect because the government agreed not to terminate status while the TPS plaintiffs sought a rehearing.

In 2021, the Biden Administration entered negotiations with the TPS plaintiffs about how to achieve some sort of permanent status. The Ramos case was paused during these negotiations, which lasted until October 2022 when there was an impasse. The government agreed that TPS protection would continue, and work authorization would be extended, for all those countries involved for at least one year if the program was terminated through litigation or until June 20, 2024 – whichever was later. The en banc rehearing is the next (but not necessarily the last) step in this process.

The Biden Administration continues defending the Trump Administration’s determination ending TPS for the designated countries based upon the argument that the courts cannot substitute its determination in this case. However, to the extent the Biden Administration has been open to granting TPS to other countries, including Afghanistan, Cameroon, Ethiopia, Ukraine and Venezuela, and has extended and redesignated TPS for Burma, Haiti, South Sudan, Sudan, and Syria, it may be open to resolving this matter in a way more favorable to the class. Under the most recent regulations, the over 100,000 beneficiaries from El Salvador, Nepal, Nicaragua, and Honduras will remain subject to the government’s decision to extend their TPS to June 20, 2024, or will have their status extended for at least one year after the program is terminated through litigation.

Jackson Lewis attorneys will provide updates as the rehearing process moves forward.

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.