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.

Hoping to recover some of its operating costs, reduce backlogs, and reestablish timely case processing, USCIS is proposing to adjust its fees for the first time since 2016.

The proposed rule is predicted to generate close to an additional $2 billion per year, on average, for USCIS by keeping humanitarian case fees low and adding costs to business-related petitions and applications. The idea is that the fees will be based on the filers’ ability to pay.

However, raising the fees on business visa petitions and applications fails to recognize that small businesses may not be able to absorb these costs and will be at a competitive disadvantage in the search and retention of talent – even if large companies might be able to cope with the increases.

The proposed fee increases include:

  • H-1B Cap Registration Fee – $215 (currently, $10)
  • H-1B Filing Fee – $780 (currently, $460)
  • L-1 Filing Fee – $1,385 (currently, $460)
  • O-1 Filing Fee – $1,055 (currently, $460)
  • E and TN Filing Fee – $1,015 (currently, $460)
  • I-765 EAD Paper Filing Fee – $650 (currently, $410)
  • I-765 EAD Online Filing Fee – $555 (currently, $410)
  • I-131 Application for Travel Document – $630 (currently, $575)
  • I-485 Application for Adjustment of Status – $1,540 (currently, $1,140)
  • Petition by Investor to Remove Conditions on Permanent Residence – $9,525 (currently, $3,750)

Beyond the proposed fee changes, USCIS is also proposing:

  • Generally incorporating biometrics costs in the main benefit fee
  • Establishing separate filing fees for Form I-129 petition types
  • Limiting the number of beneficiaries allowed on certain petitions for nonimmigrant workers
  • Revising the premium processing timeframe from 15 calendar days to 15 business days
  • Instituting lower fees for certain cases filed online
  • Instituting a new $600 surcharge on all fee-paying receipts I-129 and I-140 petitions to cover costs associated with asylum processing. This surcharge would apply to all initial petitions, changes of status, and extensions of stay.

The 60-day comment period on the proposed rule begins on January 4, 2023, and it continues through March 6, 2023. The new fee rule will not go into effect until after received comments are reviewed and the final rule is published in the Federal Register.

Jackson Lewis attorneys are available to assist with questions about the proposed fees and consult regarding strategic options and planning for possible fee increases.

The Department of Homeland Security announced the redesignation of Yemen for Temporary Protected Status (TPS) and its extension from March 4, 2023, through Sept. 3, 2024.

Individuals who have not previously held Yemeni TPS will have to show that they have continuously resided in the United States since Dec. 29, 2022, to be eligible to submit an initial TPS application.

The extension and redesignation are due to the “ongoing violent conflict and the stream of challenges that flow from the roughly eight years of civil war in Yemen ….”

The extension will affect approximately 1,700 current Yemeni beneficiaries and it is estimated that approximately 1,200 individuals will be eligible for the redesignation.

Re-registrations and Employment Authorization Document (EAD) extensions should be filed during the 60-day registration period running from Jan. 3, 2023, through March 4, 2023. Individuals whose current EADs expire on March 3, 2023, or expired on Sept. 3, 2021, will be eligible for automatic extensions or work authorization through March 3, 2024, while they await their new EADs. Yemeni applicants may also apply for travel authorization, which will be granted at the DHS’s discretion. Work authorization for certain Yemeni students is also being extended.

All eligibility criteria, timelines, and procedures can be found in the Federal Register.

Please reach out to your Jackson Lewis attorney for questions about the Form I-9, Employment Eligibility Verification process for TPS beneficiaries.

Starting on Jan. 5, 2023, COVID-19 travel restrictions are back for those travelling to the United States from China, Hong Kong, or Macau. Individuals will have to show evidence of a negative COVID-19 test or of recovery from COVID-19.

Restrictions will apply to everyone over the age of 2 boarding a flight from China, Hong Kong, or Macau to a destination in the United States. The restrictions will also apply to those who transit through third countries to the United States or those who are connecting in the United States to further destinations. Such individuals will have to show evidence of a negative COVID-19 test taken no more than two days prior to departure. This applies across the board, regardless of the individual’s nationality, immigration status, or vaccination status. The alternative is to provide proof of recovery from COVID-19 from within 90 days of departure.

The COVID-19 test must be a PCR test or a monitored self-test authorized by the FDA.

There will be limited exceptions for emergency travel to protect someone’s life or health from serious threat or danger.

Individuals travelling through South Korea, Toronto, or Vancouver to the United States will need to show evidence of a negative COVID-19 test if they have been in China within 10 days of boarding.

Other countries are also issuing similar regulations. To date those include Australia, Canada, France, Israel, Italy, Japan, Malaysia, Morocco, Qatar, Singapore, South Korea, Spain, Thailand, and the United Kingdom.

The Chinese government criticizes that these new restrictions lack a scientific basis, coming just as China has opened its borders to visitors. The first ban on travel from China due to COVID-19 was imposed by the Trump Administration in Feb. 2020 and was lifted in Nov. 2021 by the Biden Administration.

Jackson Lewis attorneys are available to assist regarding the new requirements.

Ethiopia has been designated for Temporary Protected Status (TPS) for 18 months beginning on December 12, 2022 and extending until June 12, 2024. Only Ethiopians already residing in the United States as of October 20, 2022, who can also demonstrate continuous physical presence since December 12, 2022, will be eligible to register. Eligible applicants will also be subject to security and background checks. 

USCIS has estimated that approximately 26,700 individuals may be eligible. When explaining the designation of Ethiopia for TPS, Secretary of Homeland Security, Alejandro N. Mayorkas stated that “[t]he United States recognizes the ongoing armed conflict and the extraordinary and temporary conditions engulfing Ethiopia, and DHS is committed to providing temporary protection to those in need.” He further explained that civilians in Ethiopia are currently dealing with armed conflict, conflict-related violence, ethnicity-based detentions, rape, and human rights abuses as well as food insecurity, flooding, drought, displacement and disease.

Individuals applying for Ethiopian TPS must submit a Form I-821, Application for Temporary Protected Status during the 18-month registration period that runs from December 12, 2022 through June 12, 2024. They may also apply for employment authorization and obtain an employment authorization document (EAD) by submitting a Form I-765, Application for Employment Authorization. Both forms may be filed online. For complete instructions on eligibility and the application process, please see the announcement in the Federal Register. Those who seek to work based upon Ethiopian TPS will need to present a valid EAD during the Form I-9, Employment Eligibility Verification process. Travel authorization may also be available but only at the discretion of USCIS.

DHS is also suspending certain regulatory requirements for Ethiopian students in F-1 status who are experiencing severe economic hardship.

For questions about TPS and associated I-9 obligations, please reach out to your Jackson Lewis attorney.

Portugal is designated an E-1/E-2 treaty country in the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (H.R. 7776/NDAA) passed by Congress on December 15, 2022. President Joe Biden is expected to sign the bill, providing Portuguese nationals E-1 and E-2 visa eligibility.  

E-1 and E-2 visas are for treaty traders and investors who enter the United States under a treaty of commerce and navigation between the United States and the country of which they are a citizen or national. There are close to 90 countries that qualify for E-1 visas, E-2 visas, or both. Once the bill has been signed, Portugal will be added to the list of E-1 and E-2 treaty countries.

The new legislation adds a new eligibility requirement for E-1/E-2 visas. Individuals who acquired the citizenship they are using to qualify for the E-2 visa (through investment) must show domicile in that country for “a continuous period of not less than 3 years at any point before applying for an E nonimmigrant visa,” limiting visa eligibility for those who acquire citizenship through investment, permitted by certain countries through immigrant investor programs, including Portugal’s “golden visa” program. This eligibility requirement will not apply to individuals who have already been granted E-1/E-2 status.

The general E-1 / E-2 eligibility requirements are summarized below.

To qualify for an E-1 visa as treaty trader, the individual or company must be a national of an eligible treaty country, carry on substantial trade involving numerous transactions over time, and conduct principal trade between the United States and the relevant treaty country.

To qualify for an E-2 visa as a treaty investor, the individual or company must be a national of an eligible treaty country, have invested in or are in the process of investing a substantial amount of capital in a bona fide enterprise in the United States and be entering the United States solely to develop and direct the investment enterprise.

An individual also may enter the United States in E-1 or E-2 status as an employee of a treaty trader or treaty investor. Such an individual must also be the same nationality as the principal and be engaging in duties as an executive or supervisor or have special qualifications as an essential employee.

The E-1/E-2 application process requires evidence of the investment or substantial and principal trade, including financial documentation, a five-year business plan, evidence of the enterprise’s viability, and documentation regarding the applicant’s proposed activities in the United States.

Immigration delays and limits of visas have plagued companies trying to fill key positions in the United States. Employers should not overlook the powerful, but somewhat obscure, immigration tool – the E visa.

Jackson Lewis attorneys are available to assist with filing these cases with USCIS or at a U.S. Consulate abroad.

The Department of Homeland Security (DHS) has provided guidance on the additional 64,716 H-2B temporary nonagricultural worker visas available for fiscal year 2023.

H-2B visas allow employers to bring workers to the United States to perform temporary nonagricultural seasonal work. The statute limits the total number of H-2B visas per year to 66,000. In recent years, there has been more demand than visas available. In October 2022, DHS announced that an additional 64,716 H-2B temporary nonagricultural worker visas would be available for fiscal year 2023. Now, DHS is setting out exactly for whom and when those visas will be available during the fiscal year.

Details for the additional allocation include:

  • 20,000 of the additional visas are reserved for nationals from El Salvador, Guatemala, Haiti, and Honduras.
    • Employers requesting start dates in the first half of FY 2023 may file petitions immediately after December 15, 2022.
      • Premium processing is not available until January 3, 2023.
    • Employers requesting start dates in the second half of FY 2023 may file no earlier than 15 days after the second half statutory cap is met. USCIS will identify this date in a public announcement.
  • 18,216 additional visas are immediately available for returning workers from any eligible country.
    • These petitions must request a start date on or before March 31, 2023.
      • Premium processing is not available until January 3, 2023.
  • 16,500 additional visas are available for returning workers from any eligible country.
    • These petitions must request a start date from April 1, 2023, to May 14, 2023.
    • Petitions may be filed no earlier than 15 days after the second half of the statutory cap is met. USCIS will identify this date in a public announcement.
  • 10,000 additional visas are available for returning workers from any eligible country.
    • These petitions must request a start date from May 15, 2023, to September 30, 2023.
    • Petitions may be filed no earlier than 45 days after the second half statutory cap is reached. USCIS will identify this date in a public announcement.

All petitions filed under the additional allocation must be filed at the California Service Center. Among other requirements, all employers requesting visas under the additional allocation must attest:

  • That they are suffering or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested on the petition; and
  • That employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Jackson Lewis attorneys are available to assist in strategizing and filing these petitions.

In continuing its efforts to deal with processing backlogs, USCIS is allowing longer automatic extensions of green cards for lawful permanent residents who have applied for naturalization.

Although legal permanent residence (green card status) must be maintained, it does not expire once it is granted. The card that is issued to memorialize the status, however, does expire.

USCIS hopes this new automatic extension will eliminate the need for legal permanent residents who have applied for naturalization to apply for extensions of their green cards while they are waiting to naturalize. This new extension aligns with the previously announced 24-month extension granted to those who properly file a Form I-90 to renew or replace an expired or expiring green card unrelated to a naturalization filing.

The language on Form N-400, Application for Naturalization receipt notices will be revised to extend green cards for up to 24 months. That receipt notice, along with the expired green card, will be evidence of continued status and identity and employment authorization under List A of the Employment Eligibility Verification, Form I-9.

The 24-month extension receipt will be issued to all applicants who apply for naturalization on or after December 12, 2022. Those who applied to naturalize earlier will still have to file a Form I-90 to extend their green cards or receive an ADIT/Form 551 stamp in their passport at a district office to have evidence of their continuing status. A legal permanent resident who loses their green card even after receiving one of the 24-month receipt notices will need to file a Form I-90 because all noncitizens are required to carry proof of registration, in this case, a green card. The receipt notice is not enough to ensure compliance with that regulation.

To complete Form I-9, employers should enter the information from the employee’s expired green card in Section 2 as they normally would, then enter a date in the Expiration Date field that is 24 months from the “Card Expires” date shown on the card. Remember, employers must not reverify current employees who are lawful permanent residents – even if their green cards have expired.

Jackson Lewis attorneys are available to assist in navigating the green card and naturalization processes.