The Diversity Visa (DV) Lottery is open for FY 2024. Applications may be filed online until 12:00 p.m. ET on November 8, 2022. 

The DV Lottery program makes 50,000 immigrant visas (“green cards”) available every year to applicants from countries with low rates of immigration to the United States. Eligible individuals must meet certain requirements but do not need a sponsor. To be eligible, the individual must have at least two years of high school or its equivalent or two years of work experience in an occupation that requires at least two years of training or experience. Eligible occupations are listed on the Department of State website per the instructions. Multiple applications are not allowed.

For the 2024 program, individuals from the following countries are NOT eligible:

Bangladesh, Brazil, Canada, China, including Hong Kong SAR, Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), United Kingdom (except Northern Ireland and its dependent territories), Venezuela and Vietnam.  Natives of Macau SAR and Taiwan ARE eligible. It is possible to apply based on a spouse’s country of birth.

The multi-step process is done online. It is important to follow the instructions on the Department of State website carefully.

Individuals may apply from abroad or from within the United States. Notably, individuals may apply for the DV even if they are currently pursuing permanent residence through the labor certification process. That is, the processes are not mutually exclusive.

If you have questions about the DV Lottery, please reach out to your Jackson Lewis attorney.

Severe immigration consequences for certain non-U.S. citizens remain despite President Joe Biden’s pardon of all prior federal offenses for simple marijuana possession.

On October 6, 2022, President Biden took a major step toward the decriminalization of marijuana, pardoning all prior federal offenses for simple marijuana possession. Although this pardon will affect only approximately 6,500 individuals who were convicted of simple marijuana possession under federal law before October 6, 2022, it does not affect the much larger number of individuals who have been convicted of a marijuana possession offense under state law. To the disappointment of immigration advocates, the pardon does not benefit non-U.S. citizens who were not lawfully present in the United States at the time of their conviction, even if their conviction was under federal law.

Moreover, because marijuana is still listed as a Schedule I drug under the federal Controlled Substances Act:

  • Non-U.S. citizens can still be denied entry to the country for use of marijuana or for working or actively investing in the marijuana industry;
  • Immigration authorities may deny a non-U.S. citizen’s application for lawful permanent residence (green card) or naturalization on the ground that they have a conviction for a marijuana-related offense, an admission by the non-U.S. citizen that they have used marijuana in the past, or that they have worked or is actively investing in the marijuana industry; and
  • The Department of Homeland Security can still place individuals, including green card holders, into removal proceedings (deportation) as a result of marijuana-related offenses, unless the conviction was for simple possession of less than 30 grams.

In his order, President Biden urged governors to consider similar state law pardons for simple marijuana possession charges, which might affect many more individuals. President Biden has also asked the Department of Health and Human Services to consider changing the current Schedule I classification for marijuana. If one of these changes occurred, non-U.S. citizens would substantially benefit, as their state convictions for marijuana-related offenses might be pardoned, thus lowering the negative consequences for immigration purposes.

For now, however, non-U.S. citizens should still be wary of marijuana use, or working or investing in the marijuana industry, even in places in the United States or abroad where those activities are legal. While there may not be federal prosecutions for the use and possession of marijuana, there may be severe immigration consequences for non-U.S. citizens, because the use and possession of marijuana remains illegal in certain states.

For more information on how to navigate marijuana and immigration benefits, please contact a Jackson Lewis attorney.

The Department of Homeland Security (DHS) will continue Form I-9 flexibility for another nine months until July 31, 2023, according to an announcement. DHS guidance remains the same. Employees who, due to COVID-19 policies, do not report to a physical location on a regular, consistent, or predictable basis continue to be temporarily exempt from the I-9 in-person verification requirements.

This temporary flexibility has been in effect since March 2020. As it continues and more employees are verified remotely, it becomes more challenging for employers to be prepared for the possible end of flexibility. According to DHS guidance, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

At the same time, DHS is considering permanently adopting the remote verification process. In August 2022, DHS issued a proposed rule that would give the agency to ability to permit remote document inspection permanently – possibly in exchange for requiring E-Verify, updating record retention requirements, or providing training on fraud issues – if it determines security would not be diminished. However, at this time, the timing and scope of a final rulemaking is unknown. It remains to be seen if all employees who have been remotely verified will remain exempted from in-person verification going forward. The notice and comment period for the proposed rule will end on October 18th. In the meantime, Form I-9 flexibility is once again continued temporarily.

DHS also announced that employers should continue to use the current Form I-9 after its October 31, 2022, expiration date until further notice.

Jackson Lewis attorneys are available to assist you in preparing for the possible end of temporary flexibility.

The EB-5 Immigrant Investor Program has gone through significant changes in 2022 due to the enactment of the EB-5 Reform and Integrity Act (RIA).

Created in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors, the EB-5 Program provides a path to permanent residence (a “green card”) based on a qualifying investment in a commercial enterprise. Investors may qualify for EB-5 classification by investing through Regional Centers designated by USCIS. A Regional Center is an economic unit, public or private, that promotes economic growth in the United States, such as improved regional productivity, increased domestic capital investment, and job creation.

Enacted on March 15, 2022, the RIA reauthorized the expired Regional Center program through September 2027 and made substantial changes to the EB-5 Program. One key change was to the investment amounts. The usual minimum investment is now $1,050,000. An investment in a qualified Targeted Employment Area, however, requires a minimum investment of only $800,000.

Prior to the RIA, adjustment of status applications for EB-5 investors could not be concurrently filed with the EB-5 petition. With an average processing time of up to five years, EB-5 investors had a long wait before continuing to the next step of the permanent residence process. The RIA permits EB-5 investors to file adjustment of status applications concurrently with the EB-5 petition if an immigrant visa is available in the EB-5 quota. This enables EB-5 investors to remain lawfully present in the United States while pursuing permanent residence.

The RIA requires greater transparency for the EB-5 process. Under the RIA, EB-5 promoters must register with USCIS before beginning promotional activities. In addition, the EB-5 petition must provide written disclosure of all fees, ongoing interest, and compensation paid to agents, finders, or broker dealers. Although submitting a copy of the written agreement is not a requirement for the EB-5 petition, the written agreement must be made available for review if requested by USCIS.

USCIS will hold a virtual stakeholder event on the EB-5 Program on October 19, 2022. Anticipated topics in the Q&A portion of the event include long USCIS processing times and USCIS Requests for Evidence that ask for information and documents beyond the scope of the standard of proof required by immigration law, regulations, and the EB-5 Program. We will provide an update following the event.

If you have questions about the EB-5 Program and other changes made by the RIA, Jackson Lewis attorneys are available to assist.

In Washington Alliance of Technical Workers v. DHS (WashTech), the D.C. Circuit held that optional practical training programs (OPT) that allow students on the nonimmigrant F-1 visa to work in the United States for up to three years following their graduation are valid. This decision comes after eight years of litigation.

In 2014, WashTech, an alliance of technical workers, commenced litigation against the Department of Homeland Security (DHS), asking the court to declare OPT illegal. Eventually, STEM OPT was added to the case.

WashTech argued that DHS did not have the authority to authorize this type of employment. It also argued that DHS was harming U.S. workers by allowing more highly skilled workers to remain in the country than otherwise would be allowed under the Immigration and National Act (INA).

The D.C. Circuit disagreed. In a 2-1 decision, the three-judge panel explained that practical training for international students started more than 70 years ago, in 1947. The program was no secret to Congress and, the Court pointed out, Congress had acquiesced to the program throughout the years – never modifying the INA to eliminate the program and never questioning DHS’ promulgation of the OPT rules. The Court noted that DHS’ statutory authority to set the time and conditions of an F-1 student’s stay “amply supports” OPT. It also noted that OPT is an important part of a student’s education because it cements the student’s classroom learning and ensures that students can use their knowledge effectively. Finally, the Court explained, OPT programs are highly regulated to ensure that the work and training are directly related to a student’s major area of study and are overseen by a student’s university.

More than one million students come to the United States each year on F-1 student visas. This benefits the U.S. economy and the ability to participate in OPT is an important incentive for international students to choose to come to the United States for college or graduate work. Many of these students graduate from STEM study with skills that are needed in the U.S. workforce.

If the case is appealed, Jackson Lewis attorneys will provide an update. For now, the long fight over the validity of OPT has concluded.

Due to long processing delays, USCIS is extending the validity of green cards for 24 months for legal permanent residents who have filed a Form I-90, Application to Replace Permanent Residence Card. USCIS is doing this in recognition of the fact that the previous 12-month extension in effect since January 2021 is just not long enough.

For newly filed cases, USCIS will be issuing receipt notices with the updated 24-month language. For cases that were pending as of September 26, USCIS will send out amended receipt notices that should be received before the initial 12-month extension expires.

For those who need evidence of status but no longer have their green card because it was lost, destroyed, or stolen, USCIS suggests that they may make an appointment with a local field office by contacting the USCIS Contact Center to request the issuance of an Alien Documentation, Identification and Telecommunications (ADIT) stamp.

When completing a Form I-9, Employment Eligibility Verification, new employees may present an expiring or expired green card with the receipt notice as a List A document that extends the green card for 24 months from the expiration date on the front of the card. Employers may not reverify current employees who presented this document combination with the original 12-month extension when they originally completed Form I-9.

When USCIS instituted the initial 12-month extension receipt notices, air carriers were informed and were told to accept those as evidence of green card status. An update to this guidance likely will be issued soon.

For questions about the new 24-month receipts or how to complete Forms I-9, Jackson Lewis attorneys are available to assist.

The Department of Homeland Security (DHS) has extended Temporary Protected Status (TPS) for Burma for an additional 18 months from November 26, 2022, through May 25, 2024, due to the extraordinary and temporary conditions in Burma that prevent individuals from safely returning. This means that approximately 1,000 current beneficiaries will be able to remain in the United States beyond November 26, 2022. DHS is also redesignating Burma for TPS, which means an approximately 2,300 additional individuals from Burma who have been residing in the United States since September 25, 2022, will be eligible to make an initial application for TPS.

Instructions on how to extend or make an initial application are in the Federal Register.

Re-registration and applications for employment authorization document (EAD) renewals must be timely filed during the 60-day re-registration period that runs from September 27, 2022, through November 26, 2022. Recognizing that EAD approvals might be delayed, DHS is automatically extending EADs until November 25, 2023, for individuals whose current TPS-based EADs expire on November 25, 2022.

Individuals with currently pending Form I-821, Application for Temporary Protected Status, or a related Form I-765, Application for Employment Authorization, need not reapply. If approved, those will be valid until May 25, 2024.

First-time applicants for TPS and EADs must submit their forms between September 27, 2022, and May 25, 2024.

All applicants may also apply for travel authorization by filing a Form I-131, Application for Travel Document. Travel authorization will be granted at the discretion of USCIS.

Finally, DHS is continuing to provide relief to F-1 nonimmigrant students from Burma who are experiencing economic hardship resulting from the crises in Burma. These students may request employment authorization, work an increased number of hours, and reduce their course load while maintaining status.

If you have questions about Form I-9 Employment Eligibility Verification Authorization and other issues surrounding employees in TPS, Jackson Lewis attorneys are available to assist.

As of October 1, 2022, Canada is ending all travel, testing, and border requirements and restrictions related to COVID-19. This includes vaccination, mandatory use of ArriveCAN, and any testing or quarantine and isolation requirements for those entering Canada by land, sea, or air. Even masking on board is no longer required, although still recommended.

Since March 2020, when the U.S. northern border was closed due to COVID-19, the restrictions have been particularly harsh for border community businesses including tourism. Even the lifting of many restrictions in August 2021 appeared not to return businesses even close to pre-pandemic levels. Not only that, but the ArriveCAN system, which was supposed to make border crossing easier, may have been resulting in delays and confusion. The hope is that elimination of all restrictions will give a boost to the border community economies in Canada.

Since March 2020, the United States and Canada have generally acted in unison when adding or eliminating restrictions. This time, Canada is acting on its own. As of now, all non-immigrant, non-U.S. citizen air travelers to the United States still must be fully vaccinated and provide proof of vaccination status prior to boarding an airplane to the United States. In addition, to enter the United States at ferry land ports of entry (POE) and ferry terminals, individuals must be fully vaccinated. U.S. congressmen representing border communities that have been hurt economically by the restrictions are pushing for the United States to eliminate its restrictions as well.

With regard to Canada, the U.S. Embassy there continues to suggest consulting https://travel.gc.ca/travel-covid for updated information on any possible provincial regulations or restrictions regarding COVID-19 within Canada.

If you have questions about Canadian or any other COVID-19-related travel restrictions, Jackson Lewis attorneys are available to assist.

On September 27, 2022, Governor Gavin Newsom signed an amended version of California SB-1162, Employment: Salaries and Wages. Among the new provisions which will become effective on January 1, 2023 is the requirement that California employers with at least 15 employees include the pay scale for any position in any job posting, including advertisements posted by third parties. For more information on this law and how it will affect PERM labor certification recruitments, please see our immigration blog on the amendment and blog from our California Workplace group.

Announcing a new final rule, the Department of Homeland Security (DHS) is officially reinstating the 2020 asylum rules in light of the court decision that said they were invalid.

In February 2022, the U.S. District Court for the District of Columbia vacated two 2020 Trump-era rules that for two years had made it more difficult for asylum seekers to gain employment authorization: the Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications (Timeline Repeal Rule) and the Asylum Application, Interview, and Employment Authorization for Applicants (Broader Asylum EAD Rule).

The Timeline Repeal Rule eliminated the requirement that USCIS adjudicate initial EAD applications for asylum seekers within 30 days of receipt and the Broader Asylum EAD Rule extended the wait period for EADs for asylum seekers from 180 days to 365 days. The Broader Asylum EAD Rule also excluded from eligibility for employment authorization individuals who failed to file for asylum within one year of their last entry.

DHS is officially reinstating the EAD provisions that had been in effect for Form I-589, Application for Asylum and Withholding of Removal, and Form I-765, Application for Employment Authorization, for applications that have been pending with USCIS as of February 8, 2022, or received on or after that date.

Under the vacatur and the new rule:

  • Asylum applicants can apply for initial EADs 180 days following the filing of their asylum applications;
  • Absent a denial, USCIS has 30 days from the date of filing of the EAD application to grant or deny the initial application;
  • Asylum applicants who fail to file within one year of their most recent admission to the United States are not precluded from filing for employment authorization;
  • Asylum EAD renewals must be received 90 days in advance of expiration;
  • To renew an asylum EAD, the applicant must establish the asylum application is still pending; and
  • EADs are renewable for the continuous time period necessary for an asylum officer or immigration judge to adjudicate the asylum application and during the period of any administrative or judicial review.

Asylees who have timely filed for an EAD renewal are entitled to a 540-day automatic extension if the renewal was filed between May 4, 2022, and October 26, 2023. After October 26, 2023, the 540-day extension will sunset, leaving only a 180-day automatic extension.

Jackson Lewis attorneys are available to answer any questions regarding asylum EADs and completion of Form I-9 Employment Eligibility Verifications for all employees, including asylum seekers.