Afghans who are already residing in the United States will be eligible for Temporary Protected Status (TPS), according to an announcement from the Department of Homeland Security (DHS). This designation will protect more than 74,000 Afghans from returning to unsafe conditions in their homeland.

DHS Secretary Alejandro N. Mayorkas stated that this would protect Afghan nationals who are already living in the United States and “will also provide additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years.”

To be eligible for the 18-month initial grant of TPS, Afghan nationals must be already residing in the United States as of March 15, 2022. Similar to the recent grant of TPS to Ukrainians, anyone arriving from Afghanistan after the announced date will not be eligible. Individuals who arrived in the United States as part of the evacuation effort through Operation Allies Welcome were paroled in the United States on a case-by-case basis for a period of two years. These individuals may also be eligible for the new grant of TPS and employment authorization. As always, TPS applicants will have to undergo security and background checks.

The TPS grant for Afghanistan will go into effect upon publication in the Federal Register. When published, the notice will provide instructions on how to apply for TPS and for Employment Authorization.

Jackson Lewis attorneys are available to assist you with questions about this new grant of TPS.

A series of significant developments in U.S. immigration law has already marked the beginning of 2022 and more can be expected.  Please see our Legal Update for what to anticipate as the year progresses.

Congress is set to pass Omnibus spending legislation that includes reauthorization of the EB-5 Immigrant Investor Regional Center Program, which has been suspended since June 2021.

The Regional Center Program allows eligible investors to apply for green cards if they make the necessary monetary investment and create or preserve at least 10 permanent full-time jobs for U.S. workers – even if those jobs are created indirectly. Regional Centers provide a unique opportunity to foreign investors, granting them access to high-profile developments in the United States they otherwise would not be able to invest in, with the added bonus of a green card for themselves and their immediate family members. Most Regional Center offerings are available at the lower minimum investment amount of $800,000, as they invest in areas identified by the Department of Homeland Security (DHS) as rural or distressed urban or in certain infrastructure programs. A project outside of these defined parameters will cost an EB-5 investor the higher minimum investment amount of at least $1,050,000.

The new legislation re-emphasizes enforcement procedures USCIS has focused on for the last decade: recordkeeping, notice, audits, and site visits. Focused enforcement of these areas gives investors added comfort that their investment funds are being used properly. Moreover, only DHS will have the authority to designate targeted employment areas. A census tract calculation was used to determine these in the past.

When the Omnibus legislation passes, USCIS is expected to start processing applications that have been pending. As existing investors begin receiving adjudications, new investors are encouraged to file sooner, rather than later, to reserve their spot in the notorious processing queue at the USCIS Immigrant Investor Program office.

Applying for a green card through the EB-5 program is a complex process and requires careful planning when choosing the appropriate project and in the sourcing of an investor’s funds. Jackson Lewis attorneys are available to assist in developing appropriate strategies and filing these applications.

USCIS has increased the evidentiary burden for petitions for the O-1 Extraordinary Ability visa to mirror that for the EB-1 Extraordinary Ability visa.

Both the O-1 nonimmigrant and EB-1 immigrant visa classifications remain important and flexible methods of sponsoring outstanding talent in the United States. Unfortunately, USCIS backlogs and processing delays persist, and availability of other visa categories is limited, making O-1 and EB-1 visas even better alternatives for companies to employ foreign talent. That they can provide a speedier path to permanent residence also can be a highly coveted recruitment and retention tool.

An uptick in particularized challenges to individuals seeking O-1 Extraordinary Ability classification can be traced to a change by USCIS. A memorandum issued on January 21, 2022, by USCIS confirmed that it has overhauled its approach to adjudicating O-1A Extraordinary Ability and O-1B Extraordinary Achievement visa petitions. While the guidance helps spell out the path to qualifying for O-1 classification, it also increases the evidentiary burden in O-1 visa petitions to mirror the agency’s approach to adjudicating EB-1A Extraordinary Ability petitions.

USCIS relies on a two-part analysis set out in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Step one evaluates whether the petitioner has simply presented evidence satisfying three criteria. In step two, the petitioner must persuade the government that the evidence actually demonstrates outstanding achievement as compared to relevant peers. Here are some of key considerations in evaluating the viability of an O-1 or EB-1 petition:

  • An individual’s “field” must be carefully defined and clearly articulated. Critical but often overlooked, petitions should include a carefully defined field that is clearly articulated frames the evidence in the light most favorable to the petitioner or applicant and in a manner that is easily understood by a reviewing officer.
  • The Significant and Original Contribution criterion always should be argued. The petitioner is expected to provide objective evidence (i.e., work product) and subjective evidence of significance (i.e., recognition in the field). Providing a robust argument that an individual has made original contributions of major significance to their respective field can help mitigate the chance of receiving an Request for Evidence or a Notice of Intent to Deny from USCIS.
  • Testimonial letters must be specific. Carried over from the prior administration, dismissing the probative value of testimonial letters submitted to corroborate the achievements of an individual continues. As this is one of the most important pieces, and sometimes the only piece, of evidence a petitioner can provide to corroborate an individual’s contribution or achievement in their field, it is critical that testimonial letters must be carefully drafted with specificity, describing in detail (1) the individual’s achievement and (2) why it  represents a significant development.
  • Published Materials are vital evidence for EB-1B Outstanding Researchers. Petitioners should keep in mind that the EB-1B Outstanding Researcher visa classification differs slightly in regulatory criterion and overall eligibility standard from both O-1 and EB-1A visa petitions. The EB-1B requires petitioners to show “international recognition” for outstanding research in the field. In addition to the considerations above, Outstanding Researcher petitions should include a robust record of peer citation to the individual’s work and specific references to the individual and their work in trade publications and online media. These are a crucial method of demonstrating that the individual’s research has been widely recognized in their respective field.
  • Individuals in STEM-related fields have an advantage. USCIS typically take a favorable look at accomplished individuals in STEM-related fields because STEM workers play a key role in sustained growth and stability in the U.S. economy.

Jackson Lewis attorneys are available to assist in evaluating, preparing, and filing petitions for outstanding researchers and individuals with extraordinary ability.

 

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.