November 2023

Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension

U.S. Citizenship and Immigration Services (USCIS) announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents (EADs) while their renewal applications are pending. As of October 27, 2023, those who are eligible “will receive 180-day extensions in accordance with existing regulations, including those who have applied for or have received Temporary Protected Status or asylum,” USCIS said.

The agency noted that in May 2022, it announced a temporary final rule (TFR) that increased the automatic extension period for EADs available to certain EAD renewal applicants from up to 180 days to up to 540 days. This new change is not retroactive, USCIS said; “all previous up to 540-day automatic extensions will remain in place.”

USCIS said it is determining whether there is a need for a new regulatory action similar to the May 2022 TFR.

As announced in the 2022 TFR, automatic extensions of employment authorization and EAD validity will be the original up to 180-day period for eligible applicants who timely file a Form I-765 renewal application on or after October 27, 2023. For those who received an increased automatic extension period under the TFR, the increased automatic extension will end when they receive a final decision on their renewal application or when the up to 540-day period expires (counted from the expiration date of the employment authorization and/or their EAD), whichever comes earlier.

USCIS also recently published a Policy Manual update increasing the maximum EAD validity period to five years for initial and renewal applications approved on or after September 27, 2023, for the following categories:

• Certain noncitizens who are employment-authorized incident to status or circumstance, including those admitted as refugees, paroled as refugees, or granted asylum, and recipients of withholding of removal; and
• Certain noncitizens who must apply for employment authorization, including applicants for asylum and withholding of removal, adjustment of status, and suspension of deportation or cancellation of removal.

Details:

• USCIS alert (Oct. 27, 2023).
• USCIS Automatic Employment Authorization Document Extension page (updated Oct. 27, 2023).

USCIS Updates Guidance on EB-5 Regional Center Program

U.S. Citizenship and Immigration Services (USCIS) announced on October 26, 2023, that it is “updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.”

USCIS said the update incorporates changes from the EB-5 Reform and Integrity Act of 2022 into the Policy Manual, building on an initial update that incorporated such changes on October 6, 2022.

Among other things, USCIS reorganized Part G, Volume 6, updated the chapter on adjudication of investor petitions for classification, and added new content on regional center designations and obligations, project applications, and direct and third-party promoters, including registration. USCIS said further updates to EB-5 guidance in the Policy Manual are forthcoming and will include revisions to Chapter 5, Removal of Conditions.

USCIS said the new guidance “is effective immediately and is controlling, and supersedes any related prior guidance.”

Details:

• USCIS alert (Oct. 26, 2023).

USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants

Effective October 24, 2023, U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance regarding the 2-year foreign residence requirement for the J nonimmigrant exchange visitor classification.

The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates. The update includes the ground and clarifies employment requirements.

Specifically, the update:

• Clarifies that USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.
• Explains that a travel day, where a fraction of the day is spent in the country of nationality or last residence, counts toward satisfaction of the 2-year foreign residence requirement.
• Provides that USCIS considers situations in which it is impossible for the benefit requestor to satisfy the 2-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in this situation.
• Clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement.

Feedback on this update can be emailed to USCIS at policyfeedback@uscis.dhs.gov.

Details:

• USCIS alert (Oct. 24, 2023).
• USCIS Policy Alert, PA-2023-30 (Oct. 24, 2023).

USCIS Allows Additional 30 Days for Comments on E-Verify NextGen and Revisions to E-Verify

U.S. Citizenship and Immigration Services (USCIS) is allowing 30 additional days for public comments on several information collection notices related to E-Verify.

USCIS is allowing until November 27, 2023, for public comments on E-Verify NextGen. The information collection notice was previously published in June, allowing for a 60-day public comment period. USCIS received six comments in connection with the 60-day notice.

E-Verify NextGen, I–9NG, “was developed as a demonstration project to further integrate the Form I-9, Employment Eligibility Verification, process with the E-Verify electronic employment eligibility confirmation process to create a more secure and less burdensome employment eligibility verification process overall for employees and employers,” USCIS said.

USCIS is allowing until November 24, 2023, for public comments on proposed revisions to the E-Verify program. That notice was previously published in June, allowing for a 60-day public comment period. USCIS received two comments.

Details:

• USCIS notice (E-Verify NextGen), 88 Fed. Reg. 73610 (Oct. 26, 2023).
• USCIS notice (E-Verify), 88 Fed. Reg. 73351 (Oct. 25, 2023).

Reminder to Employers: Use the New I-9 Form as of November 1

The Citizenship and Immigration Services (CIS) Ombudsman reminded employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.

The updated Form I-9 reflects the option for eligible employers to verify employment eligibility remotely. The CIS Ombudsman said the revised edition is available now, and starting November 1, all previous versions will no longer be accepted. “If you do not use the 8/01/23 edition of Form I-9, you may be subject to penalties,” the CIS Ombudsman warned.

State Dept. Intends to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Applicants

The Department of State (DOS) intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants beginning with a pilot program in early 2024 and has sent its proposal to the Office of Management and Budget for review. Currently, the State Department can only process visa applications at its embassies and consular posts abroad and does not offer a stateside option for visa issuance.

Although full details have not yet been released, according to reports, in its initial phase the stateside visa renewal program is expected to be limited to H-1B principal visa applicants (not dependents). There will be additional eligibility requirements for participation (for example, the applicant must be renewing a visa issued within a limited number of years before the renewal submission), and the program will be voluntary—applicants will still have the option of obtaining visas abroad through regular processing.

The pilot program is expected to be limited to nationals of countries whose visas are not subject to reciprocity fees. India will be eligible for participation in the pilot program, as there is no applicable reciprocity fee. These fees vary in amount and are meant to equalize the cost of a visa for each country’s nationals with the fees charged by that country to U.S. nationals seeking comparable visas. Because the fees vary and must be refunded if a visa cannot be issued, including them in the pilot program could have delayed the rollout.

The program is intended to help reduce consular delays, which were exacerbated by the COVID-19 pandemic and have continued in certain locations. The pilot program will test the operational capacity of the stateside renewal program. Availability is expected to be capped at 20,000 applicants. If successful, the program will expand to other employment-based visa categories following its initial launch, although full implementation is likely to take some time.

DHS Plans to Amend H-1B Regulations Governing Specialty Occupation Workers

The Department of Homeland Security (DHS) plans to amend its H-1B regulations “governing H–1B specialty occupation workers to modernize and improve the efficiency of the H–1B program, add benefits and flexibilities, and improve integrity measures.” The notice of proposed rulemaking (NPRM), expected to be published in the Federal Register on October 23, 2023, would also “narrowly impact other nonimmigrant classifications, including H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.” A 60-day public comment period starts following the publication of the NPRM in the Federal Register.

Below is a non-exhaustive summary of highlights. DHS proposes to:

• Revise the regulatory definition and criteria for a “specialty occupation” and clarify that a position may allow a range of degrees if they have a direct relationship to the duties of the position;
• Clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment;
• Codify and clarify that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts;
• Require evidence of maintenance of status to be included with the petition if a beneficiary is seeking an extension or amendment of stay;
• Change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity;
• Provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B;
• Clarify the requirements regarding the requested employment start date on H–1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year;
• Select H-1B cap registrations by unique beneficiary rather than by registration;
• Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary;
• Clarify that beneficiary-owners may be eligible for H-1B status while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity; and
• Clarify that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.

Details:

• USCIS notice of proposed rulemaking (advance copy), 88 Fed. Reg. 72870 (Oct. 23, 2023).
• USCIS news release (Oct. 20, 2023).

Visa-Free Travel to the United States Is Now Available for Israelis

On October 19, 2023, the Department of Homeland Security (DHS) announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program (VWP). Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s (CBP) Electronic System for Travel Authorization (ESTA).

This authorization allows eligible Israelis to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa. Israeli citizens and nationals with valid B-1/B-2 visas may continue to use them for business and tourist travel to the United States, DHS said.

DHS explained that eligible Israeli citizens and nationals must have a biometrically enabled passport book. Travelers who possess non-biometric, temporary, or emergency travel documents, or travel documents from a non-VWP designated country, are not eligible for travel under the VWP and may instead apply for a U.S. visa. ESTA applications may take up to 72 hours to process. The ESTA application will be available in English now and in other languages by November 1, 2023, DHS said.

Details:

• DHS announcement (Oct. 19, 2023).
• CBP announcement (Oct. 19, 2023).
• ESTA Application, U.S. Customs and Border Protection.
• U.S. Visa Waiver Program.

USCIS Clarifies Guidance on L-1 Petitions for Intracompany Transferees Filed by Sole Proprietorships and on Blanket L Petitions

On October 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner.

The USCIS guidance further clarifies that an L-1 petition where the owner and beneficiary are the same constitutes an impermissible self-petition. The update also clarifies guidance regarding blanket L petitions, noting that the failure to timely file an extension of the blanket petition does not trigger the three-year waiting period before another blanket petition may be filed.

Details:

• USCIS Policy Alert, PA-2023-29 (Oct. 20, 2023).
• USCIS announcement (Oct. 20, 2023).

USCIS Provides Guidance on Interpretation of EB-5 Program Changes

U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.

USCIS said that because of the changes made by the RIA, investors filing petitions for classification “no longer need to sustain their investment throughout their conditional residence, which may be many years in the future and dependent on factors outside the investor’s control such as visa availability.” Instead, USCIS said:

[The Immigration and Nationality Act (INA)] now requires only that the investment must be expected to remain invested for at least two years, provided job creation requirements have been met. Although the statute does not explicitly specify when the two-year period under INA § 203(b)(5)(A)(i) begins, we interpret the start date as the date the requisite amount of qualifying investment is made. In other words, we will use the date the investment was contributed to the new commercial enterprise and placed at risk in accordance with applicable requirements, including being made available to the job-creating entity. If invested more than two years before filing the I-526 or I-526E petition, the investment should generally still be maintained at the time the I-526 or I-526E is properly filed so we can appropriately evaluate eligibility.

Because the statute does not explicitly specify whether it applies only to post-RIA investors or also to pre-RIA investors, USCIS said it interprets INA § 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center. USCIS “will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.” USCIS also said it “will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If needed, we may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.”

Details:

• USCIS alert (Oct. 11, 2023).

DHS Announces Relief for Cameroonian F-1 Nonimmigrant Students

The Department of Homeland Security (DHS) is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Cameroon, regardless of country of birth (or individuals having no nationality who last habitually resided in Cameroon), and who are experiencing severe economic hardship as a direct result of the current armed conflict and humanitarian crisis in Cameroon.

Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status. DHS said it will deem such an F-1 nonimmigrant student granted employment authorization to be engaged in a “full course of study” for the duration of the employment authorization if the nonimmigrant student satisfies the minimum course load requirement.

Details:

• DHS notice, 88 Fed. Reg. 69939 (Oct. 10, 2023).

USCIS Launches New Online Change-of-Address Tool

U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.

USCIS said that with E-COA, most individuals with a USCIS online account can update their mailing and physical addresses with USCIS for pending applications, petitions, or requests in a single place, eliminating the need to update the address in multiple places; fill out a paper AR-11, Alien’s Change of Address Card; call the Contact Center; or visit a USCIS Field or Asylum Office. E-COA will automate address changes for almost all form types. The exceptions are listed at uscis.gov/addresschange.

DOS Restores Previous Version of Regulation Governing Public Charge Grounds of Visa Ineligibility

The Department of State (DOS) announced on October 6, 2023, that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.

On October 11, 2019, DOS published an interim final rule (IFR) that substantially revised the regulations governing the grounds. The IFR was enjoined by the District Court for the Southern District of New York on July 29, 2020, DOS explained. Since that time, the agency has used Foreign Affairs Manual (FAM) guidance that was in place before the publication of the IFR.

“The IFR was intended to align with the standards then applied by the U.S. Department of Homeland Security (DHS) to determine inadmissibility on public charge grounds. In 2022, DHS published a new Final Rule. As such, the IFR no longer meets the policy aim of consistency with DHS standards. In reverting to regulatory text that was in place prior to the publication of the IFR, the Department is again more closely aligned with the current DHS standards,” DOS explained.

Details:

• DOS news release (Oct. 6, 2023).

Klasko News

IN THE NEWS

William A. Stock
Bill Stock was quoted in the Hindustan Times, NewMobile, and Bloomberg Law on the DHS proposed changes in the H-1B lottery.

Daniel B. Lundy
Dan Lundy’s article on the EB-5 investment period clarification was published by Law360.

William A. Stock
Bill Stock is quoted in this Law360 article on the recent executive order that makes the eligibility to hire foreign AI experts more accessible.

RECENT SPEAKING ENGAGEMENTS

H. Ronald Klasko | Alison Li
On October 4, Ron and Alison spoke at this EB5AN event on the Regional Center Compliance Update on Form I-956g FY 2023.

H. Ronald Klasko
Ron Klasko spoke in this EB5AN event on the EB-5 investment timeframes and terminated regional centers.

Andrew J. Zeltner
On October 31, Partner Drew Zeltner spoke at The LeadingAge PA Fall Finance Conference in Lancaster, PA.

UPCOMING SPEAKING ENGAGEMENTS

H. Ronald Klasko | Daniel B. Lundy
Partners Ron Klasko and Dan Lundy will be speaking at The 2nd Annual Advanced EB-5 Industry Conference on November 9 in Miami, FL.

H. Ronald Klasko
On December 1^st, Ron Klasko will be a speaker at the ILCA 2nd Annual Immigration Policy and Advocacy WebCLE on a panel titled Foreign Investment Incentives and Hurdles.

ICYMI: RECENT BLOG POSTS AND ALERTS

U.S. State Dept.: H-1B Stateside Visa Renewal Pilot Program Coming in 2024
In this client alert, Allie Dempsey covers that the U.S. State Department has submitted notice to the Federal Register of its intention to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants.

EB-5 Investments: A Two-Year Sustainment Period? Not So Fast
In this blog, Dan Lundy breaks down the long-awaited guidance released by the USCIS on October 11, clarifying the EB-5 investment period.

FAQ: I-9 Alternative Procedure for Remote Employment Verification
In this blog, Grace Waweru and Karuna Simbeck answer frequently asked questions about the new I-9 alternative procedure for remote employment verification.

The Future Of DACA Remains Touch And Go
In this article, Ari Ratush covers a recent ruling issued by a Texas federal court district judge declaring that DACA is illegal and explains what this means for current and prospective DACA recipients

FIRM FEATURE

Last month, we had a spooky time during our Klasko Halloween party. Visit our Instagram to see pictures. (@klaskoimmigrationlaw)

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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.