July 2024

President Announces New Measures for Spousal Work Authorization, DACA Recipients

On June 18, 2024, President Biden announced measures “to ensure that U.S. citizens with noncitizen spouses and children can keep their families together.” He said that:

• To be eligible, noncitizens must—as of June 17, 2024—have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements. On average, those who are eligible for this process have resided in the U.S. for 23 years.
• Those who are approved after the Department of Homeland Security’s case-by-case assessment of their application will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years. This will apply to all married couples who are eligible.
• This action will protect approximately half a million spouses of U.S. citizens, and approximately 50,000 noncitizen stepchildren under the age of 21 whose parents are married to U.S. citizens.

President Biden also announced measures to enable Deferred Action for Childhood Arrivals (DACA) recipients “and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.” He said the administration “is taking action to facilitate the employment visa process for those who have graduated from college and have a high-skilled job offer, including DACA recipients and other Dreamers.” The action will involve streamlining the so-called “D-3” waiver process, by which people can overcome their unlawful presence problem by applying for a waiver at a consular post.

According to reports, details are expected to be released over the summer, along with an application process. People cannot apply yet.

Details:

• What You Need to Know About President’s Biden New Immigration Actions, Klasko Immigration Law Partners,  LLP, Client Alert, June 20, 2024
• Fact Sheet: President Biden Announces New Actions to Keep Families Together (June 18, 2024).
• Easing the Nonimmigrant Visa Process for U.S. College Graduates, Department of State (June 18, 2024).
• Biden Is Offering Some Migrants a Pathway to Citizenship. Here’s How the Plan Will Work, Associated Press (June 18, 2024).

USCIS Extends Certain TPS Work Permits Through March 9, 2025

U.S. Citizenship and Immigration Services (USCIS) announced on June 20, 2024, that it is extending the work authorization of Temporary Protected Status (TPS) beneficiaries under the designations of El Salvador, Honduras, Nepal, Nicaragua, and Sudan through March 9, 2025.

USCIS will issue Form I-797, Notice of Action, to these TPS beneficiaries who are eligible to re-register for TPS or have a pending application to renew their Form I-766, Employment Authorization Document (EAD). The notice further extends the validity of their EAD through March 9, 2025.

USCIS said that employees may show their Form I-797, along with their TPS-based EAD (EAD with an A12 or C19 code), to any U.S. employer as proof of continued work authorization through March 9, 2025.

USCIS provided additional instructions for employers:

After a new employee has completed Form I-9, Employment Eligibility Verification, create a case in E-Verify for this employee. Enter the EAD document number you entered on Form I-9, as well as the automatically extended date of March 9, 2025. You must reverify these employees on Form I-9 before they start work on March 10, 2025.

Details:

• USCIS alert (June 20, 2024).

Coming Soon: Increased Login Security for E-Verify and SAVE

U.S. Citizenship and Immigration Services (USCIS) announced that login security will be enhanced for E-Verify and Systematic Alien Verification for Entitlements (SAVE) later this year when users will begin logging into E-Verify or SAVE using Login.gov. This change “will require users to enter more information than just a password through a process called multi-factor authentication,” USCIS said. For example, “along with the password, users may be asked to enter a code sent to their email or phone.” USCIS said that enhancing these processes will help prevent unauthorized account access and minimize risk due to human error, misplaced passwords, or lost devices.

DOS Rolls Out ‘Beta Release’ of Online Passport Renewal System

The Department of State (DOS) is testing a “beta release” of a system for U.S. citizens to renew their passports online. DOS said routine processing times for renewing a passport online are expected to be six to eight weeks (not including mailing). Expedited renewals are not available online.

DOS noted that applicants might not be able to start their applications on the days of their choice during the beta release period. The system will open for a limited time midday ET each day, “and will close once we reach our limit for the day.” If you can’t start your application, DOS said, “try again on another day.” Renewal by mail is still available also.

Details:

• DOS announcement (June 12, 2024).

EB-3 Category Retrogresses for July, Other Updates: Visa Bulletin

The Department of State’s Visa Bulletin for July includes the following information about retrogression in the EB-3 immigrant visa preference category and an alert about a new law’s impact on special immigrant visas:

RETROGRESSION IN THE EMPLOYMENT-BASED THIRD (EB-3) PREFERENCE CATEGORY

As readers were informed was possible in Item D of the June 2024 Visa Bulletin, it has become necessary to retrogress the worldwide EB-3 final action date (including Mexico and Philippines) effective in July. Given the continued high demand and number use in this category, it will likely be necessary to either further retrogress the final action date or make the category “Unavailable” in August. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

U.S. GOVERNMENT EMPLOYEE SPECIAL IMMIGRANT VISAS (SIVs)

The National Defense Authorization Act (NDAA) for Fiscal Year 2024, signed into law on December 22, 2023, may affect certain current and former employees of the U.S. Government abroad applying for SIVs or adjustment of status, as described in section 101(a)(27)(D) of the INA. This does not affect certain Iraqis and Afghans applying for SQ and SI SIVs. Applicants should contact the consular section at which they filed their Form DS‑1884 for further information on the impact of that law on their case.

Details:

• Warning: July Retrogression Expected, Klasko Immigration Law Partners, LLP, Client Alert, May 10, 2024
• Visa Bulletin for July 2024.

OFLC Seeks Info on Availability of Qualified Workers and Ways to Contact Them

The Department of Labor’s Office of Foreign Labor Certification (OFLC) seeks input by August 13, 2024, on the annual determination of Labor Supply States (LSS) to enhance U.S. worker recruitment. OFLC explained that LSS are “additional states in which an employer’s job order will be circulated and, if appropriate, where additional positive recruitment may be required of the employer.”

To decide regarding labor supply and the positive recruitment needed to reach qualified workers within a state, OFLC requests information on the availability of qualified workers and the “appropriate, effective methods of contacting those workers.” Information sought includes but is not limited to:

• The type of qualified workers available (e.g., tomato harvest workers);
• The state and geographic area(s) within the state where the workers may be located (e.g., city, county, regional non-metropolitan area);
• The methods for apprising the workers of a job opportunity (e.g., local newspaper or periodical, posting with a particular community organization engaged with those workers); and/or
• Most current information for the person(s) or entity (e.g., worker union, community-based organization) to be contacted for assistance in circulating the job opportunity to those workers.

OFLC said that all “previously determined LSS requirements will remain in full effect unless the OFLC Administrator receives information indicating that a previous LSS is no longer a source for qualified workers.”

Details:

• OFLC announcement (scroll to June 14, 2024).

Class Certified for Visa Applicants Refused Visas Under Presidential Proclamation

The Department of State (DOS) disseminated a notice that the U.S. District Court for the Northern District of California has certified a class in the consolidated cases Emami v. Mayorkas and Pars Equality Center v. Blinken to allow certain visa applicants who were refused visas under Presidential Proclamation 9645 to receive a one-time, non-transferable fee credit to submit a new visa application and for eligible class members to get a prioritized visa appointment.

Certain nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen who were denied a visa between December 8, 2017, and January 20, 2021, and did not receive a waiver under that proclamation may be eligible for relief, DOS said.

Details:

• Visa Reconsideration and Fee Waiver for Applicants Impacted by Presidential Proclamation 9645, Klasko Immigration Law Partners, LLP, Client Alert, May 20, 2024
• DOS notice (also available in Arabic and Farsi) (June 13, 2024).

New USCIS Policy Guidance Interprets Confidentiality Protections as Ending at Naturalization

U.S. Citizenship and Immigration Services (USCIS) has issued guidance that interprets certain confidentiality protections as ending at naturalization.

USCIS said it made this change because “the previous practice of maintaining 8 U.S.C. 1367 protections beyond naturalization created burdens for some naturalized U.S. citizens. This policy will result in naturalized citizens having full access to USCIS electronic benefit processing and critical customer service tools that are available to other U.S. citizens.”

Details:

• Customer Service and Interpretation of 8 U.S.C. 1367 Confidentiality Protections for U.S. Citizens, USCIS Policy Alert PA-2024-15 (June 12, 2024).

President Suspends and Limits Entry Into the United States of Certain Noncitizens, With Exceptions

Subject to certain exceptions, as of June 5, 2024, President Biden has “suspended and limited” entry into the United States of certain noncitizens across the southern border. In related remarks accompanying a Presidential Proclamation, President Biden said, “Migrants will be restricted from receiving asylum at our southern border unless they seek it after entering through an established lawful process.”

Exceptions include lawful permanent residents, noncitizen nationals of the United States, noncitizens with valid visas or other lawful permission to enter, noncitizens traveling under the Visa Waiver Program, unaccompanied children, and others, as set forth in the Presidential Proclamation.

The order will be lifted “14 calendar days after the [Secretary of Homeland Security] makes a factual determination that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters” of unauthorized noncitizens at the border, with some exceptions. The suspension and limitation on entry applies “on the calendar day immediately after the Secretary has made a factual determination that there has been a 7-consecutive-calendar-day average of 2,500 encounters or more,” a threshold that has been met.

Lee Gelernt, a spokesperson for the American Civil Liberties Union (ACLU), said the ACLU plans to sue. “A ban on asylum is illegal just as it was when Trump unsuccessfully tried it,” he said.

Details:

• Presidential Proclamation (June 4, 2024).
• Remarks by President Biden on Securing Our Border (June 4, 2024).
• Biden Signs Executive Action Drastically Tightening Border, NBC News (June 4, 2024).
• “Securing the Border,” interim final rule, Departments of Homeland Security and Justice, 89 Fed. Reg. 48710 (June 7, 2024).

E-Verify+ Trial Launched; Users Should Check Their Bookmarks, USCIS Said

U.S. Citizenship and Immigration Services (USCIS) announced the launch of the E-Verify+ trial. E-Verify+ integrates the Form I-9 and E-Verify employment eligibility verification processes.

USCIS said that the trial puts the agency “one step closer to bringing E-Verify+ to you.” The trial will include live testing with E-Verify users to assess the user experience. Their feedback will be considered for incorporation in the product when it is released for wider use, USCIS said.

USCIS also noted that E-Verify users should check their bookmarks. Effective June 25, 2024, the E-Verify account log-in page will only be accessible through everify.uscis.gov. Users should review their bookmarks to ensure that they are using the current URL without a dash, USCIS said.

Details:

• E-Verify+ trial announcement (May 29, 2024).

France

A new law to control immigration entered into force on January 26, 2024. France also announced procedures related to the Olympic Games in Paris and other cities this summer, and France is on notice for failure to transpose a European Union directive relating to the European Blue Card.

The new law’s legislative journey and the media debate around it have been very intense over several months. Important measures like massive regularization of undocumented workers in short-staffed professions have finally been rejected by the Senate.

The legislative process has been lively: after the adoption by the Senate of a text presenting several setbacks for foreigners’ rights, a motion for prior rejection was adopted by the National Assembly. Finally, Deputies from the majority, the right wing, and the far-right wing agreed on the final text, including several measures already identified as unconstitutional.

The Constitutional Council, in its decision of January 25, censored 35 articles of the law. The Constitutional Council has deemed the following measures unconstitutional:

• Migration quotas. The law planned the establishment of “quotas” to cap for the next three years the number of foreigners admitted to the country. Because this measure was considered unconstitutional by the Constitutional Council, quotas will not be implemented.

• Family reunification. The conditions for family reunification will remain the same. The extension of the duration of residence in France for more than 24 months has been deemed unconstitutional as well as the other new measures regarding family reunification.

With regard to aspects relating more to private life, the following measures deemed unconstitutional have been excluded:

• Tightening of the conditions to be met by a foreigner married to a French national to be issued with a temporary residence permit bearing the title “private and family life” for a period of one year;
• Tightening of the conditions for issuing a residence permit for reasons of study; and
• Full right issuance of a long-stay visa to British nationals who own a secondary home in France.

Legislative Changes

Measures under this new law that directly impact professional immigration include:

Talent Passport Residence Permits

“Talent Passport” residence permits change their name to “Talent” residence permits, in a simplification effort.

The following three Talent Passport residence permits all merge into a single “Talent—Qualified employee” residence permit: (1) Talent—Passport Qualified employee, (2) Talent Passport employee of an innovative company, and (3) Talent Passport intra-company. This simplification does not modify the initial conditions required for each status, but the minimum salary thresholds could change since the article refers to “a salary threshold set by decree in the Council of State,” which has not yet been published.

The following three Talent Passport residence permits will all merge into a single “Talent—Project Bearer” residence permit: (1) Talent Passport—Business Creation, (2) Talent Passport innovative economic project, and (3) Talent Passport economic investment.

The new law also creates a “Talent—medical and pharmacy professions” residence permit for doctors, midwives, dental surgeons, and pharmacists.

Regularization of Undocumented Workers in Short-Staffed Professions

The law gives prefects discretion to regularize an undocumented worker who has lived in France for at least three years; worked at least 12 months, consecutive or not, over the last 24 months; and has a job in a short-staffed profession in a specific area. This will allow the issuance of a residence permit bearing the title “temporary worker” or “employee” for a period of one year. The worker can apply without the employer’s approval.

Olympic Games 2024

The Olympic Games will take place in Paris and other cities (Marseille, Toulouse, Lille) from July 26 to August 11, 2024. The Paralympic Games will take place from August 28 to September 8, 2024.

Among measures for foreigners is the possibility for foreign students to participate in private security activities. The work time performed in these activities will not be considered in the calculation of the ancillary work time allowed for foreign students, which is 60 percent of the annual work time (i.e., around 964 hours per year).

Also, according to the French Ministry and consulates in the United States, a simplified process has been implemented for travelers for whom an accreditation request is submitted to the Olympic or Paralympic Committee, such as members of the Olympic and Paralympic Committees, athletes, accompanying persons, media, and official guests.

They can appear in any visa center to apply for a visa without an appointment; a time slot is dedicated to them every morning. They only need to provide their passport, proof of accreditation, and photos. Fingerprinting takes place as well. There are no visa fees to be paid and no visa form to be filled out before submission of the application.

Absence of Transposition of EU Blue Card Directive

On January 25, 2024, the European Commission announced the adoption of a set of decisions concerning delays in the transposition of European Union (EU) Directives. France is on notice for failure to transpose the directive of October 20, 2021, relating to the European Blue Card.

States had until November 18, 2023 to adapt their internal laws to EU Directives. In France, the law of January 26, 2024 (which includes several articles related to the work of foreigners) did not include any modification of the Foreigners Code (CESEDA) for European Blue Card status.

French authorities had two months to respond and complete the transposition. Failing this, the Commission could issue a reasoned opinion and, in the absence of a response, bring the matter before the EU Court of Justice. As of May 26, 2024, there was no update regarding the transposition of the EU Blue Card Directive into French law, and the Commission had not yet issued its opinion.

The Foreigners Code (CESEDA) includes several provisions relating to the multi-year “talent, European blue card” residence card, but those are not in line with the Directive: the possibility for the foreigner to present an employment contract or a job offer of at least six months (currently 12 months); duration of the residence permit set at a minimum of 24 months (currently one year); and possible mobility to another Member State after 12 months of legal residence in the first Member State (instead of 18).

United Kingdom

There are changes to travel to the European Union for British citizens starting this October, and the Migration Advisory Committee has reported that the Graduate visa route should stay.

Changes to Travel to the EU for British Citizens Starting This October

The European Union’s (EU) Entry/Exit System (EES) is a new digital border system that had been intended to start in 2022. Reports suggest that it will now to start on October 6, 2024. The EES official website says the start date is “TBC,” but the media reports that it will start on October 6 subject to member states confirming they are ready.

The EES will apply to British citizens and other non-EU citizens (such as U.S., Canadian, and Australian nationals) who do not require a prior visitor visa to travel to Europe as well as to holders of short-stay visas. It will apply when they travel to the EU (except from Cyprus and Ireland where manual passport border checks will continue), the European Economic Area (EEA) (Norway, Liechtenstein, and Iceland), and Switzerland. There will be two main implications when the EES starts in October for those affected:

• Photo and fingerprints. A digital photo and fingerprints must be provided at the port when a traveler arrives in the EU/EEA/Switzerland for the first time. Travelers need not be alarmed by this but should expect a delay when passing through immigration control. Once the photo and fingerprints have been provided, on future trips the traveler should have a quicker and easier journey because automated “self-service systems” at border control areas will mean manual passport stamping is no longer required; and
• Electronic monitoring. The EES will electronically monitor whether the traveler stays more than 90 days in any 180-day period within the EU/EEA/Switzerland area. Once implemented, travelers in the European area will need to be more wary than ever about overstaying the 90 days. Where the maximum stay is exceeded, this can lead to entry bans for the whole of the EU/EEA/Switzerland. Equally, when making a journey, it is expected that border control officers will have information about the number of permitted days remaining for each traveler, who will only be allowed entry for the remaining days.

The European Travel Information and Authorisation System

The EES is separate from the upcoming European Travel Information and Authorisation System (ETIAS), which is expected to start in mid-2025 (the exact start date is unknown). It will apply to non-EU/EEA/Swiss nationals who are able to enter the EU visa-free—including British citizens. The ETIAS will mean that affected travelers will need to apply for pre-travel authorization, in much the same way as required by the U.S. Electronic System for Travel Authorization and the UK’s Electronic Travel Authorisation scheme.

Government’s Independent Advisory Body Reports That Graduate Visa Route Should Stay

The Migration Advisory Committee (MAC) has for many years advised the government on UK immigration policy. On March 11, 2024, the government asked the MAC to review the Graduate visa route, including in terms of “[a]ny evidence of abuse of the route including the route not being fit for purpose.”

The MAC has now released its report and said, “After reviewing the evidence, our conclusion is clear. The Graduate route has broadly achieved, and continues to achieve, the objectives set by this government. We therefore recommend that the route remains in place in its current form.”

This is good news for students and employers. The Graduate route provides a two-year work visa for those who complete a bachelor’s or master’s degree at a United Kingdom university, or a three-year visa if they complete a PhD. It serves as a useful “bridge” for employers to recruit graduates and then consider whether they will sponsor them under the Skilled Worker route. That said, it remains to be seen whether the government will follow the advice of the MAC or follow through on restricting the route by, for example, limiting the visa to six months and perhaps making it only for graduates in certain subjects, if not deleting it altogether.

Switzerland

There have been developments toward easier access to the Swiss labor market for certain professions.

Efforts to provide easier access to the Swiss labor market for certain professions include the default for non-European Union (EU)/European Free Trade Association (EFTA) nationals: a Swiss labor market test requirement.

By giving priority to the domestic labor market, the aim is to increase local workers’ chances of finding a job and to limit the entry of new foreign workers to meet the requirements of the labor market. With its two-tier structure, the system works in favor of domestic workers and workers from EU/EFTA states who can invoke the Agreement on the Free Movement of Persons between the EU/EFTA countries and Switzerland and are entitled to admission to the Swiss labor market.

In addition to Swiss nationals, domestic persons include those who are foreign nationals seeking employment who already live in Switzerland and are authorized to take up gainful employment. The admission of third-country nationals is therefore only possible if, in addition to the domestic and local labor force, there are no suitable workers from the EU/EFTA area for the Swiss labor market.

Occupations With a Pronounced Shortage of Skilled Labor

Within the last year, the following possible exemptions from the labor market test requirement have been added for consideration by labor market and migration authorities:

In occupations that are demonstrably affected by a pronounced structural shortage of skilled labor, it can be assumed that the domestic potential has been exhausted. If the demand for skilled labor in a particular occupation exceeds the supply under the given working conditions, a shortage of skilled labor can be assumed. However, skills shortages are not absolute, but they can vary in severity. The focus is on structural imbalances, which—in contrast to cyclical fluctuations between supply and demand for skilled labor—exist over a longer period of time.

These are often skilled workers who are not, or only insufficiently, available in the EU/EFTA area. For applications for residence for employment in occupations that are demonstrably affected by a pronounced shortage of skilled labor, the legally stipulated provision of proof of priority in enforcement can be facilitated.

In such cases, the authorities responsible for the preliminary labor market decision may refrain from demanding concrete search efforts. By plausibly demonstrating in an application that there is an occupation shortage in the specific case, the applicant company can fulfill the obligation to provide evidence. In this case, the competent cantonal authority can make the judgment that the domestic potential has been exhausted and that the priority principle is therefore fulfilled.

Taking into account the State Secretariat for Economic Affairs (SECO) indicators and empirical values from the State Secretariat for Migration (SEM), the following occupational fields may fall under the facilitation of enforcement of the obligation to provide evidence:

• Executives (management positions) in research and development; health care; education; information and communication technology; management consultancy; finance and insurance; the mechanical, electrical, and metal industry; and the production of chemical and pharmaceutical products and food products;
• Business administration specialists in management and organizational analysis;
• Engineering professionals (process and production engineers; civil engineers; engineers in electrical engineering, electronics, and telecommunications), natural scientists, mathematicians and engineers and specialists in information and communication technology (IT engineers, system analysts, software developers, application programmers, database and network specialists);
• Certain healthcare professionals: Medical specialists, medical assistants, physiotherapists, qualified nurses (with specialization), other medical specialization, other medical-technical specialists (e.g., medical-technical radiology assistants); and
• University and college teachers.

If the facts of the case are critical, or if the competent cantonal authority sees a reason to do so, it can request suitable special evidence (e.g., advertisement of the vacant position on the public unemployment system site or in the EU/EFTA area or reference to the skilled labor situation in the EU/EFTA area). The reasons for this could include the cantonal labor market situation, regional economic priorities, or macroeconomic interests.

• The above is not a blanket exemption from the labor market test requirement but gives authorities discretion to grant work permit approvals without labor market testing for these types of employment. Individual case evaluation thus remains as vital as ever.

Klasko News

RECENT SPEAKING ENGAGEMENTS

William Stock
Bill Stock spoke at the 2024 AILA Annual Conference in Chicago on the panel entitled Breaking the Limited Mindset: Utilizing Technology for Your Practice and Meeting Ethical Obligations and Leveraging Technology to Add EB-5 to Your Practice.

Elise Fialkowski
Elise Fialkowski spoke at the 2024 AILA Annual Conference in Chicago on a panel entitled When You Aren’t Extraordinary Enough! How to Stop Worrying and Love the National Interest Waiver.

Andrew Zeltner
Drew Zeltner spoke at the 2024 AILA Annual Conference in Chicago on the panel entitled Permanent Residence: Non-Physicians Health-Care Workers.

Timothy D’Arduini
Tim D’Arduini spoke at the 2024 AILA Annual Conference in Chicago on the panel entitled Overview of the L-1 Intracompany Transferee Visa.

Brian Green
Brian Green spoke at the 2024 AILA Annual Conference in Chicago on a panel entitled Challenging Immigration Denials and Delays in Federal District Court.

ICYMI: RECENT BLOG POSTS AND ALERTS

Frequent I-956F Issues for Regional Centers and Project Developers
In this blog, Alison Li highlights some of the broad I-956F issues encountered in USCIS adjudications during the past two years.

What You Need to Know About President Biden’s New Immigration Actions
In this client alert, Tim D’Arduini, Ryan Patterson, and Chloe Du alerted that on June 18, 2024, President Biden announced an executive action that will expand eligibility for certain relatives of U.S. citizens to seek green cards from inside the United States.

Canada is Implementing New Immigration Strategies to Reduce the Number of Temporary Residents by 2027
In this blog, Sarah Holler and Elise Fialkowski explain why Canada is implementing new immigration limitations on certain non-graduate international student visas and asylum seekers.

Preparing for Pennsylvania J-1 Waivers
In this client alert, Romina Gomez informs healthcare institutes that Pennsylvania has updated the website with information for J-1 waivers for the upcoming year.

Visa Retrogression: Stalled Green Card Dreams or An Opportunity to Reset?
In this article, Carolina Regales explains the expected retrogression in the upcoming July visa bulletin for employment-based preference categories.

FIRM FEATURE

Klasko attorneys join together for an evening dinner after the AILA Annual Conference event in Chicago, IL.

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.