We are glad to report that we have made our final edits on the American Immigration Lawyers Association’s Practice and Procedures Manual (the “Cookbook”)! Our hope is that the book will be ready for the annual AILA meeting in June. Not only have we added three new chapters including H-2B visas, T visas, and Humanitarian Parole, but we have updated nearly all of the previously included chapters so that practitioners have the most current forms, regulations, tips and instructions, to assist their immigration practice. Notably, the PERM chapter contains the newly released ETA-9089, which is set to go live next week. The updated PERM chapter provides practitioners with the new sample completed ETA-9089, along with a refreshed overview article and tips and instructions to help guide practitioners through the new and quite different filing process.
In addition to debuting the 2023 edition of the Cookbook, we are proud to announce that many of our attorneys have been assigned to various AILA committees/taskforces for the 2023-2024 term. Elissa Taub will be joining the DOS liaison and AILA fall conference committees, Jason Susser to the USCIS field ops liaison committee, Adam Cohen and Johnna Main-Bailey will head the USCIS case assistance committee, and James Hollis will be on the distance learning committee.
Regarding litigation, we are happy to report that on April 12, our firm, along with the IMMpact Litigation team, filed a complaint against USICS for unreasonable delays in the adjudication of I-601 Waivers of Inadmissibility. At the time we filed the complaint, the USCIS Nebraska Service Center has taken a staggering 25.5 months to adjudicate these waivers. These delays have left the plaintiffs, who have approved visa petitions, without recourse to regain admission to the United States to be with their families. The delays have forced the plaintiffs to wait outside the United States, separated from their loved ones, while USCIS takes over two years to adjudicate their waivers. The goal of the lawsuit, among other things, is to secure a court order compelling USCIS to adjudicate the plaintiffs’ I-601 waiver applications within 30 days. We will be filing additional I-601 cases and if you’re interested in learning more about these cases, please go to https://www.immpactlitigation.com/i-601-application-for-waiver-of-grounds-of-inadmissibility-litigation-plaintiff-onboarding/.
We also are pleased to announce that this month we filed the second lawsuit against USCIS regarding work authorization for Ukrainian parolees. We have already succeeded in getting USCIS to recognize that Ukrainians are authorized to work incident to status and that they should not pay I-765 filing fees. USCIS only dropped the I-765 fee on a going-forward basis. We are suing to get the $410 fee refunded for the thousands of people who filed before the announcement.
As always, we invite you to schedule an appointment with one of our lawyers if we can ever assist with an immigration matter. Just go to www.visalaw.com/consultation.
Ask Visa Law
Written by Robby Rubin
I heard there is a new way to file PERM applications. When will it become effective and what is new about it?
Beginning May 16, 2023, the Office of Foreign Labor Certification (OFLC) will begin accepting the revised, online, Form ETA-9089, Application for Permanent Employment Certification, via the Department of Labor’s Foreign Labor Application Gateway (FLAG). After May 15, 2023, at 6:59pm eastern standard time, OFLC will no longer accept any new PERM applications filed with the previous version of Form ETA-9089. To help facilitate the transition to the new online Form ETA-9089, the Department of Labor has provided practitioners with unofficial, watermarked versions of the new forms: View the unofficial, watermarked version of the revised Form ETA-9089, Application for Permanent Labor Certification.
To view unofficial watermarked versions of the appendices and other updated forms related to filing a Form ETA-9089, please visit: https://www.dol.gov/agencies/eta/foreign-labor.
As an employer, I have been taking advantage of DHS’ temporary flexibility allowing the remote verification of identity and work authorization documents for Forms I-9 due to the COVID-19 pandemic. Will I be allowed to continue verifying remotely moving forwards?
In response to the COVID-19 pandemic, on March 20, 2020, DHS announced certain temporary flexibilities which allowed employers to defer the requirement that they verify an employee’s identity and employment authorization documents in the employee’s physical presence for purposes of completing Employment Eligibility Verification (Form I-9). Under this temporary flexibility, employers were permitted to remotely obtain, inspect, and retain copies of their employees’ documents within three business days from an employee’s date of hire.
On May 4, 2023, DHS announced that these temporary flexibilities will expire on July 31, 2023. Accordingly, employers who have been inspecting their new hires’ employment verification and identity documents remotely will have 30 days after the COVID-19 flexibilities end on July 31, 2023, to reach compliance with Form I-9 requirements. In other words, employers or their authorized representatives must complete in-person physical document inspections for employees whose documents were inspected remotely by August 30, 2023. These inspections, whether done by the employer or their authorized representative, must be done in the employee’s physical presence. Additionally, after physically inspecting an employee’s documentation, the employer or their authorized representative must sign the Section 2 Certification and add the phrase “documents physically examined” with the date of examination in the Section 2 Additional Information field or in Section 3, as appropriate. The signature must be from the individual who inspected and verified the documentation.
Employers who opt to use an authorized representative to inspect and verify their employees’ documentation should first confirm that the individual they selected is permitted to act in such a capacity, as the rules vary from state to state. Please contact your attorney if you have any questions regarding this or any other issues relating to the completion of your Employment Eligibility Verification requirements.
For additional information, please visit: https://www.uscis.gov/i-9-central/form-i-9-related-news/temporary-policies-related-to-covid-19
To see DHS’ announcement, please visit: https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply
In the News from ABIL
The Department of State is extending Special Student Relief to eligible Ukrainian students in the United States on J-1 visas “to help mitigate the adverse impact on them resulting from the full-scale Russian invasion of Ukraine that began on February 24, 2022.”
U.S. Citizenship and Immigration Services said it may consider recommendations made in previous comments received on its December 2022 notice in a separate comprehensive revision.
U.S. Citizenship and Immigration Services is accepting a self-identified gender marker for individuals requesting immigration benefits. The gender marker they select does not need to match the gender marker indicated on their supporting documentation.
The Department of Homeland Security expects that the subcommittees’ findings and recommendations will be submitted to the HSAC for its deliberation and vote during a public meeting in mid- to late summer 2023.
A U.S. district court ruled that U.S. Customs and Border Protection (CBP) violated the rights of an ordained senior pastor, Rev. Kaji Dousa, a U.S. citizen, who was providing pastoral support and conducting rituals for migrants along the U.S.-Mexico border, including religious marriage ceremonies with no legal effect.
U.S. Citizenship and Immigration Services has begun accepting petitions for workers for the late second half of fiscal year 2023—those requesting employment start dates from May 15, 2023, to September 30, 2023—under the H-2B supplemental cap temporary final rule.
The Department of Labor’s Office of Foreign Labor Certification has stopped issuing denials for this issue for pending applications and “will not deny for this reason for any application submitted on or before May 30, 2023.”
The Department of State’s Visa Bulletin for May 2023 includes a variety of updates.
The new form gives noncitizens the option to update their address online in addition to the existing options of doing so by phone or in person at a field office. It will be deployed “in a rolling release with full availability anticipated in the coming weeks,” U.S. Immigration and Customs Enforcement said.
The Department of Health and Human Services will issue a proposed rule soon to expand the definition of “lawful presence” to include recipients of Deferred Action for Childhood Arrivals (DACA). The proposed rule would mean that DACA recipients would be eligible for Medicaid and the Affordable Care Act’s insurance exchanges.
The Department of Labor’s Office of Foreign Labor Certification will begin accepting the revised Form ETA-9089, Application for Permanent Employment Certification, in the Foreign Labor Application Gateway (FLAG) system on May 16, 2023. Filers may begin creating and staging applications on April 24, 2023.
U.S. Citizenship and Immigration Services announced that it has extended through September 30, 2023, the temporary suspension of the biometrics submission requirement for certain applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status.
The Menendez Plan, which includes measures to address U.S. labor shortages and expand access to H-2 visas, emphasizes executive actions President Biden could take to circumvent gridlock in Congress.
USCIS said that the large number of eligible registrations for beneficiaries with multiple eligible registrations, which was much larger than in previous years, “has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.
The Department of Labor posted an “unofficial watermarked preview copy” of Form ETA-9089 “to allow stakeholders to become familiar with changes to the form.”
The Departments of Homeland Security and State announced new measures “to further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants.”
On April 22, 2023, the U.S. Embassy in Khartoum suspended its operations, and DOS ordered the departure of U.S. direct-hire employees and their dependents due to the continued threat from armed conflict in Sudan.
U.S. Customs and Border Protection issued a 30-day notice requesting comments by May 30, 2023, on revisions to its information collection for its “Trusted Traveler” programs.
State Department Visa Bulletin
To view the May 2023 Visa Bulletin from the State Department: click here.