I am writing this just after the recent midterm election. We still don’t know the exact outcome as far as the makeup of each House of Congress. But it does appear the Democrats will retain control of the Senate and are likely to barely lose control of the House. What this means for immigration in the next Congress is not clear.
First, the politics on immigration may actually have improved as a result of Tuesday’s vote. Many people were expecting Republicans to have a substantial improvement in their numbers in both Houses of Congress and in state races. Instead, they lost ground in the Senate, only picked up a handful of House seats (largely due to gerrymandering), lost a number of key governors’ races, and didn’t manage to flip a single state legislature. This all happened with a weak economy and a President lagging in his approval rating.
One of the issues Republicans campaigned hard on was immigration. More specifically, that they were the get tough on immigration party. This didn’t deliver in the way they hoped and may not only have garnered them more votes but actually cost them, particularly with Latino and Asian voters as well as younger voters from all demographic categories.
In 2012, after the GOP was in a similar position, the Republican National Committee issued a report calling on the party to embrace immigration reform in order to appeal to more voters. That was ignored and their positions actually stiffened.
Has the GOP learned its lesson this time? We’re already seeing a backlash against President Trump who was the force in the GOP that pushed for a wall and more immigration enforcement. Whether this means we’ll see actual shifts from the GOP leadership on issues like DACA and expanding green card numbers remains to be seen.
We also don’t know how committees will be made up and whether the filibuster in the Senate will continue. The ease with which an immigration bill can move through either House will be determined by who is chairing committees and how many votes are required. A lot of that may be impacted by negotiations over how a virtually evenly divided House is run and whether Democrats will be able to convince 50 of their Senators to vote to kill the filibuster.
We also may see a Senate that has an easier time approving appointees and judges as a result of the election.
And finally, we now start the 2024 presidential campaign season. This may seem early, but we’re probably going to see President Trump announce his campaign in the next few days and we are already hearing that President Biden is interested in seeking reelection. Immigration will presumably be on the agenda and President Biden may make moves soon to try and improve his standing with his base on these issues.
So, a lot to think about.
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
Question: My Employment Authorization Document is set to expire soon. How do I know if it will qualify to be extended automatically?
DHS allows for automatic extensions of certain EADs in order to help prevent gaps in employment authorizations for non-U.S. workers. Many applicants qualify for an automatic extension of their expiring EAD while their application for a new, unexpired EAD is pending. In order to qualify for the automatic extension:
- The applicant must have already been issued an EAD card in the past and must now be timely filing to renew their application for work authorization, i.e. prior to the expiration of their existing EAD.
- The renewal application must be based on the same category as the prior/existing EAD.
- The category listed on the existing EAD must be a category recognized by USCIS as eligible for an automatic extension. For a list of categories eligible for an automatic extension see the USCIS’s website at: https://www.uscis.gov/eadautoextend#:~:text=Effective%20May%204%2C%202022%2C%20DHS,employment%20authorization%20and%2For%20EAD.
- The renewal application must be pending.
Prior to May 4, 2022, the qualified applicants would receive an 180-day extension period from the expiration date on their EAD. However, effective May 4, 2022, DHS published a temporary final rule which increased the extension period to 540 days. The temporary increase is available to applicants who filed their Form I-765 renewal application either:
- Before May 4, 2022, and their 180-day automatic extension has since expired.
- Before May 4, 2022, and their 180-day automatic extension has not yet expired, OR
- Between May 4, 2022, and October 26, 2023.
Question: I am a healthcare worker, and my EAD expires in 30 days or less, is it possible to have my renewal application expedited?
Yes. Effective December 28, 2021, healthcare workers who have a pending EAD renewal application that expires in less than 30 days or has already expired are eligible to request expedited processing of their EAD renewal application.
To view the instructions for requesting expedited processing for healthcare workers, and to determine whether you are a qualifying healthcare worker, follow this link, and click on the drop-down menu at the top of the page that says “ALERT: If you are a healthcare worker or a childcare worker.”
In the News From ABIL
The Department of Labor’s Office of Foreign Labor Certification and the Department of Homeland Security, including U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, released guidance related to the effects of Hurricane Ian.
Lawful permanent residents who properly file Form I-90, Application to Replace Permanent Resident Card, to renew an expiring or expired green card may receive this extension.
The draft guidance pertains to the Office of Foreign Labor Certification’s assessment of the temporary or seasonal nature of an employer’s need for agricultural labor or services during review of the Form ETA-9142A, H-2A Application for Temporary Employment Certification.
The Department of Homeland Security is extending TPS for Burma (Myanmar) for an additional 18 months, from November 26, 2022, through May 25, 2024. DHS also redesignated Burma for TPS for the same reason, granting eligibility to Burmese nationals (and individuals having no nationality who last habitually resided in Burma) residing in the United States as of September 25, 2022.
The waiver, which was effective until September 30, 2022, has been extended to March 31, 2023.
Starting October 1, 2022, construction and extraction occupations are prohibited under the CW-1 program, except for long-term workers. USCIS said it continues to accept CW-1 petitions other than those seeking approval under the Disaster Recovery Workforce Act.
According to reports, President Biden plans to take executive action to protect Deferred Action for Childhood Arrivals (DACA) “Dreamers” from removal if the Fifth Circuit Court of Appeals rules against DACA, which appears imminent.
The conversation included discussion of processing times; backlog reduction efforts; customer service; funding and congressional appropriations; the Ombudsman’s 2022 Annual Report to Congress; recommendations on USCIS’s fee-for-service funding model; and types of assistance the Ombudsman’s office provides to the public.
According to reports, U.S. Citizenship and Immigration Services (USCIS) has told some practitioners that their ability to grant multiple satisfactory departure requests ended in April, but the agency has acknowledged that their public website has not yet been updated.
E-Verify employer agents can once again create and submit client enrollments.
This article discusses the Artist visa for foreigners coming to perform artistic activities in Peru.
According to unofficial reports, by the end of September, Canada may drop its COVID-19 vaccine requirement for travelers entering Canada from the United States via the Detroit-Windsor border. Canada may also end COVID-19 for airport arrivals and no longer require filling out the ArriveCan app.
The court decision requires U.S. Citizenship and Immigration Services to process all initial employment authorization document applications from asylum applicants within 30 days.
DOJ said that during its investigation, the agency learned about dozens of “facially discriminatory advertisements employers posted on Georgia Tech’s job recruiting platform as well as other platforms operated by colleges across the United States.”
USCIS will soon provide guidance and instructions for Calixto class members who may be eligible to apply for military naturalization.
Congress passed the “Bridging the Gap for New Americans Act” (S. 3157) to require the Department of Labor to submit to Congress a study on the factors affecting employment opportunities for certain individuals with professional credentials obtained in a non-U.S. country, specifically individuals who are lawfully present noncitizens or naturalized U.S. citizens. The study will include policy recommendations for better enabling such individuals to obtain skill-appropriate employment in the United States.
Plaintiffs argue that U.S. Citizenship and Immigration Services’ and the Department of State’s requirement that a visa must be available at both the time of filing and of approval of the application is wrong.
This premium processing expansion only applies to certain previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver.
U.S. Citizenship and Immigration Services announced that it has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2023.
One witness urged Congress to pass two pending bills: the Conrad State 30 and Physician Access Reauthorization Act, S. 1810 (H.R. 3541), and the Healthcare Workforce Resilience Act, S. 1024 (H.R. 2255).
The Department of State’s Visa Bulletin for October 2022 includes several updates, including retrogressions in the China-mainland born EB-5 unreserved categories and in the India employment second preference (E2) final action and application filing dates.
DHS “will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”
U.S. Citizenship and Immigration Services is releasing revised editions of Form I-589, Application for Asylum and for Withholding of Removal, and Form I-765, Application for Employment Authorization.
The Department of Homeland Security has taken several actions to provide relief for Venezuelans in the United States.
U.S. Citizenship and Immigration Services released updated fiscal year 2023 frequently asked questions on employment-based adjustment of status.
The Department of Labor’s Employment and Training Administration is requesting comments by October 11, 2022, on proposed revisions to the ETA-9141 and ETA-9165 forms.
The Executive Office for Immigration Review announced several immigration court developments.
The current 594,000 Deferred Action for Childhood Arrival (DACA) recipients can maintain status while the lower court considers the effect of a DACA final rule issued by the Biden administration. New applications continue to be blocked.
The court held that authorizing foreign students to engage in limited periods of employment for practical training as their schools recommend according to the terms set out in the rule is a valid exercise of the Department of Homeland Security’s authority.
The Department of Labor announced the impending publication of a final rule to amend H-2A temporary labor certification regulations to strengthen agricultural worker protections and to update the H-2A application and temporary labor certification and prevailing wage determination processes.
The Department of State’s Visa Bulletin for November 2022 includes information on the extension of the religious workers category until December 15, 2022, and visa availability in the employment second category.
President Biden issued a determination that up to 125,000 refugee admissions for fiscal year 2023 “is justified by humanitarian concerns or is otherwise in the national interest.” The announcement includes regional allocations.
The Department of Homeland Security will publish a Federal Register notice to announce the new I-9 form when it becomes available. U.S. Immigration and Customs Enforcement announced an extension until July 31, 2023, of the Form I-9 flexibilities first announced in March 2020.
The H-2B supplemental includes an allocation of 20,000 visas for workers from Haiti, Honduras, Guatemala, and El Salvador. The remaining 44,716 supplemental visas will be available for returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.
Among other things, the new process will bring up to 24,000 qualifying Venezuelans into the United States and provide them with work authorization. Those who cross the border between ports of entry without authorization will be ineligible.
After consideration of comments received in response to the proposed rule, the Department separated the proposals into two rulemaking activities. This first rule encompasses all of the proposed rule except the adverse effect wage rate (AEWR) methodology. The second will address changes to the AEWR methodology.
U.S. Citizenship and Immigration Services issued policy guidance related to an EB-5 rule that a federal court vacated on June 22, 2021.
The rule removes a maximum 90-day period of stay for certain representatives of foreign information media from China and allows the Secretary of Homeland Security to determine the maximum period of stay, up to one year.
Until further notice, U.S. Customs and Border Protection has directed all flights to the United States carrying persons who have recently traveled from, or were otherwise present within, Uganda to arrive at one of five U.S. airports implementing enhanced public health measures.
U.S. Citizenship and Immigration Services began implementing a new process for Venezuelans on October 18, 2022. As announced previously, the fully online process will allow individuals to be considered on a case-by-case for “advance authorization to travel to the United States and seek a temporary period of parole for up to two years” if they meet certain conditions.
The 18-month designation will be effective on the publication date of the forthcoming Federal Register notice, which will provide instructions for applying for TPS and work authorization.
U.S. Citizenship and Immigration Services will consider certain CW-1 petitions seeking an extension of status for temporary workers present in the Commonwealth of the Northern Mariana Islands to be filed on time, even if USCIS receives them after the worker’s current period of CW-1 petition validity expires.
Several large U.S. corporations have launched an advertising campaign to protect the Deferred Action for Childhood Arrivals program, whose more than 600,000 beneficiaries are called “Dreamers.”
The revisions to Form N-648 eliminate questions and language that no longer have practical utility or were redundant.
A coalition of students and legal scholars has proposed that the 10 University of California campuses hire undocumented students. They are challenging federal immigration laws that prohibit the hiring of undocumented persons by U.S. employers, based on a new legal interpretation by constitutional and immigration scholars that argues that these laws do not apply to states.
The agency expects to reach pre-pandemic processing levels this year.
Under the flexibilities, U.S. Citizenship and Immigration Services considers a response received within 60 calendar days after the due date set forth in certain requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and January 24, 2023.
Among other things, the FAQ notes that unless a specific exemption applies, employers and their authorized attorneys or agents must submit H-2A job orders using the electronic method designated by the Office of Foreign Labor Certification Administrator.
U.S. Citizenship and Immigration Services no longer requires petitioners to submit duplicate copies of the Form I-129 Petition for a Nonimmigrant Worker, or of the supporting documentation, unless the agency specifically asks for it.
U.S. Citizenship and Immigration Services clarified its policy on implementing the requirement that Commonwealth of the Northern Mariana Islands (CNMI) workers leave the United States for at least 30 days after two renewals of their CNMI-Only Transitional Worker (CW-1) visa classification.
The Executive Office for Immigration Review announced the appointment of 32 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New York, Tennessee, Texas, and Virginia.
IMMPact Litigation Update
Siskind Susser is one of four firms in the US partnering in mass, high impact immigration litigation efforts. We’ve been co-counsel on nearly 30 of these law suits and have a number of wins that have led to real change in immigration law.
One case we’re currently working on is Shumilina v. Jaddou. The case was filed on behalf of nearly 150 Ukrainians who entered under the Uniting for Ukraine program this year. Under a bill passed by Congress in May, they are entitled to the automatic right to work in the US. Instead, USCIS is making people apply for a $410 employment authorization document that is taking 8+ months to approve.
We sued in Chicago and filed as a class action suit. The government has been in settlement talks with us, though we cannot report any success yet. However, we do believe the government agrees now with our legal position and are optimistic we will not only get USCIS to allow people to work with just the I-94 card they received the day they entered the US, but we will get a substantial portion of their fees returned.
For more information on the case, see our press release at https://t.co/qgqaDnCIve.
State Department Visa Bulletin
To view the November 2022 Visa Bulletin from the State Department, click here.