Massachusetts is on its way to joining 16 other states that grant driver’s licenses to undocumented immigrants.

On February 16, 2022, the Massachusetts House of Representatives passed The Work and Family Mobility Act by an overwhelming majority vote of 120 to 36. The bill is expected to pass the Massachusetts Senate. It is not clear whether Governor Charlie Baker will sign the bill, but the bill may be protected by a veto-proof majority. If passed, the bill would go into effect on July 1, 2023, and could help an estimated 78,000 people in Massachusetts apply for a standard Massachusetts driver’s license, regardless of immigrant status, while maintaining full compliance with federal REAL ID requirements.

Those applying for driver’s licenses under the Act would need to provide proof of identity, date of birth, and Massachusetts state residency. This proof could include an unexpired foreign passport, a birth certificate, a valid foreign driver’s license, or a marriage certificate issued in Massachusetts.

The bill is supported by immigration advocacy groups as access to a driver’s license will serve to ease the everyday challenges faced by undocumented immigrants in the United States – including enabling access to grocery stores, seeking employment opportunities, transporting children and family members to school, accessing healthcare, and so on. Law enforcement is also supportive of the bill because properly trained, licensed drivers are safer on the road, leading to fewer accidents, lower insurance deductibles, and more responsible drivers. In addition, other states have found that these types of laws result in a decrease in hit-and-run accidents, because they eliminate undocumented immigrants’ fear of being identified and arrested for driving without a license.

With respect to the ability to vote, the bill says, “people without legal immigration status will not be registered to vote as a result of getting a driver’s license.” This has led to more support for the bill and prevents immigrants from falling into the trap of mistakenly registering to vote.

While some fear that issuance of these driver’s licenses will create a database that could be used to report undocumented workers, as in the case of DACA (Deferred Action for Childhood Arrivals) registrations, proponents point out that the bill contains language to prevent that sort of misuse.

Jackson Lewis attorneys will provide updates on the progress of this legislation.

 

 

Consistent with the Biden Administration’s extensions for other countries, the Department of Homeland Security announced an 18-month extension and redesignation of Temporary Protected Status (TPS) for both Sudan and South Sudan due to conditions in those countries that temporarily prevent their nationals from returning safely.

The specifics for South Sudan are published in the Federal Register. TPS for South Sudan was last extended in December 2020. Now, the benefit has been redesignated and extended through November 3, 2023. (The specifics for Sudan have not yet been announced.)

South Sudanese holders of TPS (approximately 700 individuals) should re-register and renew their Employment Authorization Documents (EADs) during the re-registration period that runs from March 3, 2022, through May 2, 2022. Any TPS holder from South Sudan who has an EAD that expires on May 2, 2022, and renews an EAD during the re-registration period will be eligible for an automatic 180-day extension of work authorization until November 1, 2022, while waiting for a newly issued EAD that will expire on November 3, 2023. This is intended to eliminate any possible gap in employment authorization due to processing delays.

Based on the redesignation, South Sudanese nationals and individuals having no nationality who last habitually resided in South Sudan may file an initial TPS application and apply for employment authorization if they have continuously resided in the United States since March 1, 2022. DHS expects approximately 230 individuals will be eligible for an initial application.

Jackson Lewis attorneys are available to assist in determining when and how to handle Form I-9 Employment Eligibility Verifications for South Sudanese TPS holders.

As the COVID-19 pandemic continues to evolve daily, the Centers for Disease Control and Prevention (CDC) has updated its guidelines on what is required or recommended for travelers after their arrival in the United States. These new changes join the December 2021 requirements about travel to the United States.

Reiterating: Before Boarding

Non-U.S. individuals (those who are neither U.S. citizens, U.S. nationals, nor legal permanent residents) are required to show two things:

U.S. individuals, on the other hand, are only required to either show a negative COVID-19 test result taken no more than one day before travel or provide documentation of recovery from COVID-19 within the past 90 days. Because there is no vaccination requirement, U.S. individuals may also be required to provide contact information to airlines before boarding to facilitate contact tracing if it becomes necessary.

New: After Arrival

The new post-arrival recommendations and requirements also vary based upon citizenship status.

Non-U.S. individuals who were allowed to fly to the U.S. based on an exception without being fully vaccinated may be required to make certain attestations:

  • Agree to be tested within 3-5 days after arrival, unless they have documentation of recovery from COVID-19 within the past 90 days.
  • Agree to stay home or in a hotel room and self-quarantine for a full 7 days, even if they have a negative test, unless they have documentation of recovery from COVID-19 within the past 90 days.
  • If the COVID-19 test comes back positive or if COVID-19 symptoms develop, the non-U.S. individual should isolate.
  • Those who intend to remain in the United States for 60 days or longer must become fully vaccinated within 60 days of arrival or as soon as medically appropriate, absent a medical contraindication or if the individual is too young to be vaccinated.

Non-U.S. individuals who are fully vaccinated but not “up to date,” i.e., have not received a booster, should stay home and self-quarantine for full 5 days after travel.

  • CDC recommends testing within 3-5 days after travel, self-monitoring for symptoms, and isolating and testing if symptoms develop

U.S. individuals should do the following upon arrival:

If not vaccinated or not up to date with COVID-19 vaccines:

  • Stay home and self-quarantine for a full 5 days after travel

Even U.S. individuals who are vaccinated should:

  • Get tested within 3-5 days after travel
  • Self-monitor for symptoms and isolate if symptoms develop

There is a distinction between isolation and quarantining, but that distinction does not change the required behavior.

  • Isolation separates sick people with a contagious disease from people who are not sick.
  • Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.

Jackson Lewis attorneys are available to help answer questions about these requirements.

 

Department of Homeland Security (DHS) has announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months.

This designation was made based on the ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely.

In making the announcement, the Secretary of Homeland Security Alejandro Mayorkas noted, “Russia’s premeditated and unprovoked attack on Ukraine has resulted in an ongoing war, senseless violence, and Ukrainians forced to seek refuge in other countries …. In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.”

Only individuals who have continuously resided in the United States since March 1, 2022, will be eligible for TPS under this designation. Individuals who attempt to travel to the United States after March 1, 2022, will not be eligible for TPS. The TPS designation will go into effect on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

Please contact a Jackson Lewis attorney with any questions.

U.S. Citizenship and Immigration Services (USCIS) has announced that it is strongly encouraging applicants for adjustment of status (Form I-485) in the employment-based third preference category, if they are eligible to do so, to transfer the underlying basis of their applications to the first or second employment-based preference categories. This is because there are an “exceptionally high number” of visas available in those categories for the current fiscal year (October 2021 to September 2022) – twice as high as usual. USCIS’ encouraging announcement is in line with the Biden Administration’s mission to eliminate barriers and not let immigrant visas go to waste.

This surplus is the result of approximately 140,000 family-based visas (along with some first and fifth preference employment-based visas) going unused last year and, due to statutory limitations, they cannot be used for those in the third preference employment-based category.

To be eligible to transfer the underlying basis of their Form I-485, applicants must meet the following criteria:

  • Continuously have maintained eligibility for adjustment of status;
  • Have already filed a Form I-485 that is pending based on a different I-140 in a classification that is not current, e.g., EB-3;
  • Be eligible for the first or second preference category; and
  • Have a current priority date current in the new category.

Those who are requesting a transfer of the underlying basis of the I-485 to a previously filed and approved Form I-140 must also file a completed Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under Section 204(j), along with the written transfer request. If the previously filed petition is pending, the Form I-485 Supplement J is not required.

There is a complex web of requirements that must be followed in terms of evidence, and filing locations vary depending on the circumstances of the application. There can also be pitfalls. For instance, the position that will form the basis for the transfer must be the same position the applicant will assume when the adjustment is approved or a position to which the applicant is portable.

Please reach out to your Jackson Lewis attorneys who are available to assist in strategizing, preparing, and filing these transfers, also known as “interfilings.”

USCIS has changed its mission statement again – this time to adopt a more immigration-friendly stance.

In 2018, USCIS, under the Trump Administration, changed its mission statement to align with President Donald Trump’s focus on enforcement, strict scrutiny, and extreme vetting. The statement did not emphasize customer satisfaction, i.e., the satisfaction of petitioners, applicants, and beneficiaries. The change in emphasis was stark and did not go unnoticed. Instead, the mission statement focused on protecting and serving the American people and ensuring that benefits were not provided to those who did not qualify or those who “would do us harm ….” The 2018 statement did not speak of the United States as a “nation of migrants” and it focused on efficiency while “protecting Americans, securing the homeland, and honoring our values.”

The new 2022 USCIS mission statement reflects President Joe Biden’s belief that “new Americans fuel our economy as innovators and job creators, working in every American industry, and contributing to our arts, culture, and government.” Accordingly, he has issued executive orders directing the various immigration agencies to reduce unnecessary barriers to immigration. The 2022 mission statement also reflects President Biden’s directions and USCIS Director Ur M. Jaddou’s “vision for an inclusive and accessible agency.” Director Jaddou “is committed to ensuring that the immigration system . . . is accessible and humane . . . [serving] the public with respect and fairness, and lead with integrity to reflect America’s promise as a nation of welcome and possibility today and for generations to come.”

According to Director Jaddou, USCIS will strive to achieve the core values of treating applicants with integrity, dignity, and respect and using innovation to provide world-class service while vigilantly strengthening and enhancing security. On February 3, 2022, Director Jaddou, along with her deputies, briefed the nation on the agency’s efforts to improve service at USCIS. The leaders of the agency made clear that USCIS knows it must continue to eliminate backlogs, cut processing times, reduce unneeded Requests for Evidence and interviews, eliminate inequities in processing times across service centers and improve the contact center, among other things, to achieve its goals. Using streamlining and technological innovation, USCIS hopes to make itself much more consumer-oriented.

In December 2021, Congressional Democrats tried to include immigration reforms in the Build Back Better Act (BBBA). Some of the proposals would have helped unauthorized immigrants by providing those eligible with parole and work authorization. The bill also would have reduced green card backlogs and provided some applicants with expedited green cards for a fee. But the BBBA has not come to pass.

Now, Republican congresswoman, Maria Elvira Salazar (R-Fla.), along with other Republican sponsors, has introduced the Dignity Act as a “rebuttal” to the BBBA. In exchange for securing the border and making E-Verify mandatory, the Dignity Act proposes a solution for undocumented immigrants and reforms to the H-2A and H-2B temporary season worker visa programs.

Key provisions include:

  • A streamlined path to citizenship for Dreamers and TPS holders.
  • The Dignity Program itself gives other undocumented workers who meet eligibility requirements a chance to work in the United States for 10 years. This will require yearly payments of $1,000 to a job training fund for U.S. workers.
  • After 10 years, Dignity Program participants can enter an optional five-year Redemption Program that would provide a pathway to legal permanent residence and eventual citizenship. Under the Redemption Program, immigrants would have to learn English and civics, participate in local volunteer work, and pay an additional $7,500 restitution fee.
  • Expansion of the H-2A Agricultural Guest Worker program and support for the H-2B returning worker exception to help seasonal businesses fulfill their labor needs.
  • Funding to secure the border physically, implement border security technologies, and hire 3,000 new DHS border security personnel.
  • Establish Regional Processing Centers to house asylum applicants at the border and hire 1,700 new personnel to adjudicate asylum cases.
  • Mandate E-Verify nationwide.

Congresswoman Salazar’s bill is not supported by all Republicans, some of whom see the provisions as unacceptable “amnesty.” Some Evangelical leaders support the pathway to citizenship for Dreamers just as they supported those provisions in the BBBA. There may be Democrats who find some of the Dignity Act palatable, but none have signed on as sponsors. There will need to be bipartisan support.

Jackson Lewis attorneys will provide updates on the progress of this bill as they become available.

On February 4, 2022, the House of Representatives passed the American Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act  (known as the America COMPETES Act of 2022). The bill is aimed at “outcompeting China and the rest of the world in the 21st century.” Title III of the COMPETES Act adds immigration provisions to the bipartisan U.S. Innovation and Competition Act that was passed in the Senate in June 2021.

The immigration provisions in Title III include the creation of a W nonimmigrant visa for entrepreneurs with ownership interest in a start-up entity. Title III also provides STEM Ph.D. graduates seeking to work in the United States in a field related to such degree a direct path to Legal Permanent Residence (LPR) status.

W Nonimmigrant Visa

Title III creates a W nonimmigrant visa for entrepreneurs with at least a 10% ownership interest in a start-up that was formed in the 5-year period preceding application. Like the International Entrepreneur Rule (IER), the W visa has eligibility requirements regarding levels of investment from qualified investors and a showing that the applicant has knowledge and skills that would substantially assist the start-up. The W visa would allow an initial validity period of three years with the possibility of 3-year extensions and 1-year extensions if investments and job creation meet certain standards. One important difference from the IER is that the W visa allows nonimmigrants to have dual intent, meaning that W nonimmigrants would be able to apply for LPR if the enterprise meets additional investment and job creation levels. Unlike the proposed W nonimmigrant visa, there is no direct route to LPR from IER status, as IER admission to the United States is only a type of parole.

Benefits for STEM Ph.D.s

Foreign nationals with Ph.D.s STEM degrees, whether from the United States or foreign equivalent degrees, would be exempted from the annual green card limits. This would allow Ph.D.s to circumvent the immigrant visa backlog that so many Ph.D.s, especially those from India and China, face.

Applications for the W nonimmigrant visa, the W immigrant visa and the STEM immigrant visa would require an additional $1,000 supplemental fee that will be used to fund scholarships for U.S. STEM students.

The immigration provisions in the House bill could be transformative for entrepreneurs and those with Ph.D.s in STEM fields. But it must be reconciled with the Senate version. If the immigration provisions make it through that process and are passed by the Senate, the United States would take a big step toward increased competitiveness for foreign talent with other countries that make entry and permanent residence for select individuals much easier. Passage of the bill by the Senate would also be significant, as Congress has not passed major immigration reform in decades.

Jackson Lewis attorneys will continue to follow the progress of this bill and provide updates as they become available.

As of January 31, 2022, spouses entering the United States in L-2 or E status may be able to obtain work authorization at the border by asking Customs and Border Protection (CBP) to give them a “spousal” designation in their I-94 record. Because USCIS has not issued “official” guidance on this yet, requesting the designation may or may not be successful.

In response to extraordinarily long delays in obtaining employment authorization documents (EADs), USCIS announced some policy changes in November, including new guidance clarifying that L-2 and certain E spouses will no longer need EADs to work. L-2 and E spouses will be able to work incident to status. There was a condition precedent, however. Eligible spouses could not work incident to status until they obtained an I-94, Arrival/Departure Record, annotated to show that the bearer is an L-2 or E spouse so the I-94 could be used for I-9 Employment Eligibility Verification form purposes.

Reportedly, the guidance has been issued internally and, it seems, some CBP officers are annotating I-94 records while others do not even acknowledge having received any information about the change.

Given the current confusion, any spouses entering the United States in L-2 or E status who wish to work may want to ask for the annotation by requesting CBP admission as an L-2 or E spouse and receiving that “spousal” designation in their I-94 record. It is also advisable to travel with supporting documentation proving eligibility for the annotation on the I-9, such as a copy of the principal’s L or E visa (unless travelling together), marriage certificate, and a copy of the new guidance. This may or may not work, but it may be worth trying for those with scheduled travel, until the official policy is released.

If you have questions about the new policy, how and at which ports of entry it might currently apply, Jackson Lewis attorneys are available to assist.

Individuals hoping to complete their naturalization processes are being kept in limbo while their files sit in limestone caves.

The National Archives and Records Administration (NARA) has been the depository for “old” Alien Files (“A-Files”) for the entire United States and its territories for some time. A-Files contain all records of any active case of a foreign national not yet naturalized as they passed through the United States immigration and inspection process. According to NARA, these files “may include visas, photographs, affidavits, and correspondence leading up to an alien’s naturalization, permanent residence, death, or deportation.” They contain a wealth of biographical information and are used by researchers, advocacy groups, and genealogists among others.

In 2010, USCIS began the process of transferring A-Files of immigrants born more than 100 years ago to the NARA. Due to storage issues, USCIS has also transferred more recent A-Files to NARA. NARA keeps these files in Federal Records Centers (FRCs) that were built into miles of man-made limestone caves below Kansas City, Missouri. Generally, NARA would retrieve and provide these records upon USCIS request. Since the COVID-19 pandemic, the centers have been basically closed and have not yet fully reopened. The result: naturalization cases cannot be completed because USCIS cannot access an applicant’s A-Files. There are currently 350,000 pending requests from USCIS for records from NARA.

Representative Ted Budd (R-NC) received complaints from constituents who have applied to naturalize about the inability to get access to their files. He wrote to the White House and the Archivist of the United States asking NARA to reopen the FRCs to deal with the backlog problems. He noted that, as of September 2021, the FRCs were still closed or operating only at 20% capacity. Stating that other government workers had to stay at their posts during the COVID-19 pandemic or have returned to their offices, he opined that, due to the availability of vaccines, the FRCs “need to open to full capacity as quickly as is feasible.” NARA reports that staffing levels have been kept low (25%) because Kansas City is in “an area of high transmission.” It stated that it is working to increase access and allow USCIS to retrieve its own files.

NARA has urged USCIS to “change their processes and rely less on paper files to meet their mission. . ..” This is one of USCIS’ strategic, long-term goals: to transition from a paper-based environment to a digital environment and improve data accessibility. For now, those with A-Files in Missouri will have to wait until files can be physically retrieved from below Kansas City.