For the first time in more than 28 years of publication of Siskind’s Immigration Bulletin, we took a hiatus a few months ago. The summer is ending and so is our time off. We’re also going to be making a few changes in our publication.
First, our new attorney Robby Rubin will be joining me in editing the publication along with our new team member, Olivia Lester. We will start each issue with the Opener article as we have for these many years where I can give quick thoughts about what’s going on in the world of immigration.
We will also be publishing a monthly post on what’s happening with our IMMPact mass federal lawsuits initiative. We have filed 25 cases since the start of the pandemic and some of those cases have already had a substantial impact on immigration law. Robby will be writing our Ask Visalaw column. Olivia will write a post on goings on at Siskind Susser and we will also be publishing the usual stories on immigration law with our content partners at the Alliance of Business Immigration Lawyers (ABIL).
As for what’s going on in immigration law, we’re watching the DACA program really closely at the moment. A court in Texas has ruled the program as being illegally promulgated because it was done without rulemaking and the Biden Administration has responded by issuing a final rule implementing DACA. The 5th Circuit Court of Appeals is set to decide soon on DACA and may send the case back to the District Court to decide again in light of the new rule. It could also kill or uphold DACA on its own. And whoever loses will surely appeal to the US Supreme Court.
The end of DACA would throw the matter to Congress to fix and Congress has failed for twenty years to pass a DREAM Act bill which would deal with this issue. But the end of DACA might change the politics and force a quick decision since the program is very popular with the public. We may see a change in Congress after the November election. If the Democrats retained control of the House and increased their numbers by two in the Senate, the politics surrounding immigration would change dramatically. A DREAM Act and potentially a lot of other immigration bills would suddenly be in a better position to pass. If the Democrats lost the House or failed to increase their numbers in the Senate, we would likely see a continuing stalemate on most immigration issues.
We’re likely going to end this Congress with just two important immigration bills passed. One is a bill that made major changes to the EB-5 immigrant investor program. That included raising the investment threshold to participate in the program (now $800,000 instead of $500,000 for targeted investments and $1,050,000 for all others instead of the previous $1,000,000). And I-526s can be filed concurrently with I-485 adjustment of status applications. These changes should bring some new certainty to those considering the program.
The second bill that most people is one that most people never knew was related to immigration is the Ukraine Supplemental Appropriations Act. There is a provision in the bill that says that Ukrainians who entered the US after February 24, 2022 are to receive all the same benefits as refugees. USCIS (and the media, to be fair) largely ignored this provision and many thought the language was just limited to federal welfare programs. But “benefits” is not defined in the legislation and the section of the bill says that the normal green card benefit refugees get was not included. Logically, this means that other immigration benefits were meant to stay on the table or Congress could simply have said that all immigration benefits were being left out and not just green cards.
This becomes very important because Ukraine parolees – nearly 100,000 of them who are here – are entitled to automatic employment authorization just like refugees. USCIS is making these people file an I-765 application and pay $410 and then wait the average of eight months to get the work card. I’m proud to say that our firm and our IMMPact Litigation partner firms at Kuck Baxter in Atlanta, Joseph and Hall in Denver and Wasden, Bless and Fourney in DC sued on behalf of 180 Ukrainians to force USCIS to change their policy. We are hoping for a result soon on this.
Ask Visa Law
by Robby Rubin
Question: If I have been retaining the supporting documentation for my employee’s I-9’s but want to switch from paper to electronic storage, am I required to continue retaining the supporting documentation along with the I-9s?
Generally speaking, retaining the supporting documents is voluntary. However, once an employer makes a practice out of retaining supporting documents for its employees it must continue to do so for all employees, or risk being in violation of the anti-discrimination rules promulgated by the Immigration Reform and Control Act.
Employers who use E-Verify, however, are required to retain supporting documents if the employee presents a Permanent Resident Card, U.S. passport or passport card, or Employment Authorization Document and keep them stored with that employee’s Form I-9.
Additionally, an employer who wishes to convert from paper to electronic storage of their employee’s Form I-9 may do so using an electronic Form I-9 software.
Employers should be careful to maintain consistency in how they do (or do not) retain their employee’s supporting documentation. Either option can be acceptable, as long as the practice is maintained consistently.
Question: What is the difference between a job that is a one-time occurrence, a seasonal need, a peakload need, and an intermittent need?
Petitioner-employers have the burden to establish that the labor they are requesting is temporary in nature. According to the regulations, the temporary employment must either address an employer’s seasonal, peakload, or intermittent need, for which the maximum period of employment allowed under the visa will be one year. The regulations also allow for temporary employment to be classified as a “one-time occurrence,” for which the maximum period of employment allowed under the visa will be three years.
In order for employers to prove that their need for employment is a “one-time occurrence” they need to establish that that they have not employed workers to perform the requested labor in the past and will not need workers to perform that labor in the future OR (2) that they have what is otherwise a permanent employment situation, but a temporary event has created a need for a temporary worker.
Seasonal need involves labor that is associated with a season of the year, or by an event or pattern that is recurring in nature. Peakload need covers scenarios where an employer is seeking to supplement regular or permanent staff due to a seasonal or short-term demand. To establish peakload need, a petitioner-employer must prove that the employees hired to assist the peakload need will not become a full-time part of the employer’s regular operations. Lastly, a petitioner-employer can establish an intermittent need by demonstrating that in the past it hasn’t employed full-time or permanent workers to perform the services in need, but intermittently needs temporary workers to perform the services or labor for short periods.
In The News From ABIL
The overall employment-based annual limit for immigrant visas in FY 2022 is approximately twice as high as usual, primarily due to consular closures abroad during the COVID-19 pandemic. U.S. Citizenship and Immigration Services said it is “dedicated to ensuring we use as many available employment-based visas as possible in FY 2022,” which ends on September 30, 2022.
The Department of Homeland Security is providing employment authorization, including procedures for obtaining related documentation, for covered individuals effective June 27, 2022, through June 30, 2024.
For both special immigrant and R-1 nonimmigrant religious worker petitions, the update clarifies the circumstances under which certain related petitioners may meet compensation requirements even if the attesting employer will not directly compensate the religious worker.
U.S. Citizenship and Immigration Services is resuming operations under the Cuban Family Reunification Parole program, beginning with pending applications.
The Department of Labor’s (DOL) Office of Foreign Labor Certification was awarded a $7.2 million investment from the DOL’s Technology Modernization Fund.
There is a new regime for visa procedures and processing.
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.
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).
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.
IMMPact Litigation Update
Siskind Susser is one of three firms that comprise IMMPact Litigation which has a mission to sue to challenge illegal and unreasonable immigration practices at the various government agencies that manage the US immigration. With our partners at Kuck Baxter in Atlanta and Joseph and Hall in Denver, we have now taken on more than 25 mass federal cases suing US Citizenship and Immigration Services, the US Department of State and the US Department of Labor.
In this new column, I’ll talk about cases IMMPact is working on. This month, it’s Shulimina v. Jaddou, a suit filed on behalf of more than 150 Ukrainians in the US.
It’s not necessary to provide background on the war in Ukraine and the turmoil caused by that conflict. Millions of Ukrainians have fled the country and the US has been accepting many via a program USCIS created called Uniting for Ukraine. Those individuals have been entering under a status called “humanitarian parole.”
Humanitarian parole applicants can seek authorization to work by filing a Form I-765 and paying a $410 filing fee. Unfortunately, in addition to the expensive fee, the application processing times have been extremely long – expected to be eight months or more.
On May 22, 2022, President Biden signed H.R.7691, the Additional Ukraine Supplemental Appropriations Act of 2022. The legislation contains a provision stating that all Ukrainians paroled into the US after February 24, 2022 and up until September 30, 2023 will be eligible for all benefits available to refugees admitted to the US under Section 207 of the Immigration and Nationality Act. This includes resettlement assistance, entitlement programs and “other benefits.” The question of whether this section includes immigration benefits was essentially resolved by a provision in the bill that says benefits does not include entitlement to a green card, something refugees can get after a year. By addressing green cards, it is clear Congress considered immigration benefits as a type of benefit addressed by the law and therefore other immigration benefits available to refugees are on the table.
Refugees do receive a key benefit in addition to green card eligibility. They get automatic work authorization after entering the US and if they do decide to seek an employment authorization document (which some do because it serves as an identification document), the I-765 is waived.
IMMPact sued USCIS in September in the US District Court in Chicago on behalf of 150+ Ukrainian parolees. The suit is asking a judge to determine that automatic work authorization applies and was effective immediately after the law was signed. Furthermore, we’re seeking a refund of the $410 filing fee for all people who filed I-765s after the law passed.
The case is now pending in front of a judge in Chicago. USCIS successfully requested a three week delay by arguing the issue wasn’t “urgent”. IMMPact opposed, but a decision by the judge was issued within a day of the request so the opposition wasn’t considered.
USCIS has still not publicly addressed the issue raised in the suit.
State Department Visa Bulletin
To view the October 2022 Visa Bulletin from the State Department, click here.