September 2022

EB-5 Regional Center Program is Finally Back

The EB-5 Reform and Integrity Act of 2022 (“RIA”) was signed into law on March 15, 2022 to reauthorize the regional center program. In an unforeseen circumstance, USCIS prevented this from occurring by decertifying every previously approved EB-5 Regional Center and requiring them to refile for designation. In response to this, Klasko Immigration Law Firm co-counseled a lawsuit that prohibited USCIS from decertifying all regional centers. As a result of weeks of negotiation with USCIS, a Settlement Agreement was achieved. Read full the highlight of this Settlement Agreement, here.

Details:

• “EB-5 Regional Centers Achieve Settlement with USCIS to Restart the Regional Center Program,” Client Alert, Klasko Immigration Law Partners, Aug. 26, 2022, https://www.klaskolaw.com/news/client-alert-eb-5-regional-centers-achieve-settlement-with-uscis-to-restart-the-regional-center-program/

DHS Announces Final Rule to ‘Preserve and Fortify’ DACA Policy

The Department of Homeland Security (DHS) announced a final rule to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children. DACA allows beneficiaries an opportunity to receive a renewable, two-year work permit. DHS said that DACA has allowed more than 800,000 young people, dubbed “Dreamers,” to remain in the United States.

The rule, effective October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It continues the DACA policy announced in a 2012 memorandum from Janet Napolitano, then-Secretary of Homeland Security, that DACA recipients should not be a priority for removal. DHS received more than 16,000 comments during the public comment period. The final review codifies the existing DACA policy, with limited changes, and replaces the DACA policy guidance set forth in the 2012 Napolitano memorandum. The final rule:

• Maintains the existing threshold criteria for DACA;
• Retains the existing process for DACA requestors to seek work authorization; and
• Affirms the longstanding policy that DACA is not a form of lawful status but that DACA recipients, like other deferred action recipients, are considered “lawfully present” for certain purposes.

DHS noted that it may grant DACA renewal requests under the final rule but cannot grant initial DACA requests and related employment authorization due to a court injunction that remains in partial effect.

Advocates, including representatives from the American Immigration Lawyers Association and the American Immigration Council, hailed the Biden administration’s “positive step” but called for Congress to act also.

Details:

• Final rule (advance copy), DHS, https://public-inspection.federalregister.gov/2022-18401.pdf
• “DHS Issues Regulation to Preserve and Fortify DACA,” DHS news release, Aug. 24, 2022, https://www.dhs.gov/news/2022/08/24/dhs-issues-regulation-preserve-and-fortify-daca
• “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Napolitano memorandum), June 15, 2012, https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf
• Order of injunction, State of Texas v. United States, U.S. District Court for the Southern District of Texas, July 16, 2021, https://www.uscis.gov/sites/default/files/document/legal-docs/Texas%20II%20Dkt.%20576%20Injunction.pdf
• “Biden Administration Moves to Shore Up DACA Protections But Congress Needs to Act,” press release, American Immigration Lawyers Association, Aug. 24, 2022, https://www.aila.org/advo-media/press-releases/2022/daca-press-release  

USCIS Reaches FY 2023 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022, that it has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

USCIS said it has completed sending non-selection notifications to registrants’ online accounts. The status of such registrations will show as “Not Selected.” USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, are exempt from the FY 2023 H-1B cap. USCIS said it will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in additional H-1B positions.

Details:

• USCIS alert, Aug. 23, 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2023-h-1b-cap   

E-Verify Reports System Outages During Case Creation

E-Verify reported that it is experiencing intermittent system outages. As a result, “users may experience system timeouts and increased processing times when creating and submitting cases,” E-Verify said, adding that it is working to resolve the issue.

Employers must continue to complete and retain a Form I-9 for every person hired to work for pay in the United States within the required timeframes, E-Verify noted.

Details:

• E-Verify alert, https://www.e-verify.gov/about-e-verify/whats-new

Labor Dept. Reports FLAG System Issues

The Department of Labor announced on August 24, 2022, that the Foreign Labor Application Gateway (FLAG) system “continues to experience intermittent issues when creating certain application forms, appendices, or other decision documents through Adobe PDF.” DOL recommended that users “carefully review the Adobe PDF decision documents generated by the FLAG system for accuracy and completeness.”

DOL said users should contact the FLAG Technical Help Desk Team if any decision document appears incomplete or otherwise contains inaccuracies.

Details:

• Service Impact notice, FLAG, Aug. 24, 2022, https://flag.dol.gov/

DHS Proposes to Allow for Alternatives to Physical Document Examination for I-9 Verification

On August 18, 2022, the Department of Homeland Security (DHS) proposed a rule to allow for alternative document verification procedures for Form I-9, Employment Eligibility Verification. The proposed rule would create a framework under which the Secretary of Homeland Security could authorize alternative options for document examination procedures for some or all employers.

According to the notice of proposed rulemaking (NPRM), such procedures could be implemented as part of a pilot program; upon the Secretary’s determination that such procedures offer an equivalent level of security; or as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services under the Public Health Service Act, or a national emergency declared by the President under the National Emergencies Act.

The NPRM notes that in light of advances in technology and remote work arrangements, the Department of Homeland Security (DHS) is exploring alternative options, including making permanent some of the COVID-19 pandemic-related flexibilities to examine employees’ identity and employment authorization documents for the Form I–9. The rule would not create such alternatives but would instead formalize the authority of the DHS Secretary “to extend flexibilities, provide alternative options, or conduct a pilot program to further evaluate an alternative procedure option (in addition to the procedures set forth in regulations) for some or all employers, regardless of whether their employees physically report to work at a company location.” DHS said it would introduce any such alternative procedure in a future Federal Register notice.

Details:

• 87 Fed. Reg. 50786 (Aug. 18, 2022), https://www.govinfo.gov/content/pkg/FR-2022-08-18/pdf/2022-17737.pdf

Reports: Visa Delays and Unprecedented Wait Times Cause Problems for Workers, Employers

According to reports, visa delays, backlogs, and unprecedented wait times at U.S. embassies and consulates are causing disruptions for workers and companies, particularly those employing workers in temporary statuses who need to renew their visas outside the United States.

For example, excluding student and visitor visas, wait times for visas in Istanbul, Turkey, exceed 16 months; in New Delhi, India, wait times hover at nine months for the thousands of highly skilled temporary workers coming to the United States on H-1B and L-1 visas. Business visa processing in Chile can take up to three years.

The delays are thought to be at least partly the result of increased travel demand related to the COVID-19 pandemic, staffing issues at embassies and consulates, and a two-year shutdown of processing guestworker visas by the Trump administration. Some business groups and immigration attorneys advocate measures such as allowing remote interviews or permitting those with expiring visas to renew in the United States rather than requiring them to leave the country as a way of relieving backlogs. Reportedly, the Department of State (DOS) is considering such options. Meanwhile, DOS said it has doubled the hiring of consular staff in fiscal year (FY) 2022 over FY 2021, and noted that “[n]early all U.S. embassies and consulates have resumed full visa services.”

Details:

• “Visa Bottlenecks Are Creating Headaches for Employers, Workers,” Aug. 16, 2022, https://news.bloomberglaw.com/daily-labor-report/visa-bottlenecks-are-creating-headaches-for-employers-workers
• “U.S. Visa Processing Delays Called Worst Since 9/11,” Voice of America, Aug. 3, 2022, https://www.voanews.com/a/us-visa-processing-delays-called-worst-since-9-11-/6685941.html  

USCIS Clarifies Eligibility Determinations for L-1 Nonimmigrant Managers, Executives, and Specialized Knowledge Workers

On August 16, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a policy alert to clarify how the agency determines eligibility for L-1 nonimmigrants seeking classification as managers or executives (L-1A) and specialized knowledge workers (L-1B).

The update does not make changes to the existing policy or create a new policy. The update consolidates and updates guidance previously included in the Adjudicator’s Field Manual, Chapter 32, as well as related appendices and policy memoranda.

Details:

• USCIS Policy Alert (Aug. 16, 2022), https://bit.ly/3pB8Wy9
• Part L—Intracompany Transferees, USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-2-part-l

KLASKO NEWS

FIRM NEWS

Klasko Immigration Law Partners is holding its annual Fall Seminar on Tuesday, October 25^th at the Union League of Philadelphia. Save the Dates will be sent this week, so watch your inbox!

IN THE NEWS

H. Ronald Klasko │ William A. Stock
Partners Ron Klasko and Bill Stock have been listed in this year’s “Lawdragon 500 Leading Corporate Employment Lawyers” guide.

Alison Li
Law.com announced the welcome of Klasko’s new attorney Alison Li.

H. Ronald Klasko
EB5 Affiliate Network webinar on EB-5 Reform and Integrity Act, joined by Ron Klasko, was announced in EIN News and Asian News.

H. Ronald Klasko
Ron Klasko was quoted in PR Newswire and Bisnow for co-counseling EB-5 stakeholders and achieving a settlement agreement with USCIS.

RECENT SPEAKING ENGAGEMENTS

William A. Stock
On August 11^th, Partner Bill Stock was a discussion leader at the 2022 AILA Paralegals Virtual Conference on a panel entitled Navigating the Minefield of Dual Representation: Whose Questions Can Paralegals Answer Ethically? (Business and Family).

H. Ronald Klasko
On August 25^th, Partner Ron Klasko discussed the EB-5 Reform and Integrity Act of 2022 with Sam Silverman and Mike Schoenfeld from EB5 Affiliate Network.

UPCOMING SPEAKING ENGAGEMENTS

H. Ronald Klasko
Ron will be speaking on AILA Latin American and Caribbean Chapter (LACC) webinar titled “EB-5 Update with Ron Klasko and Tammy Fox-Iscoff” on the latest news affecting the EB-5 industry.

UPCOMING SPEAKING ENGAGEMENTS

H. Ronald Klasko │ William A. Stock
Partners, Ron Klasko and Bill Stock, have been listed in this year’s “Lawdragon 500 Leading Corporate Employment Lawyers” guide.

H. Ronald Klasko │ William A. Stock │ Elise A. Fialkowski
Ronald Klasko, Bill Stock, and Elise Fialkowski have been included in the 29th edition of The Best Lawyers in America© in the area of immigration law.

Michele G. Madera │ Karuna C. Simbeck │ Natalia Gouz │ Maria Mihaylova
Michele Madera, Karuna Simbeck, Natalia Gouz, and Maria Mihaylova have been recognized in the 2023 Edition of Best Lawyers: Ones to Watch for their outstanding professional excellence in immigration law.

ICYMI: RECENT BLOG POSTS AND ALERTS

Employers Beware: Prioritize I-9 Compliance Post-COVID
In this article, Carolina Regales addresses the importance of continuing to follow Form I-9 requirements after the post-pandemic world.

Client Alert: EB-5 Regional Centers Achieve Settlement with USCIS to Restart the Regional Center Program
Klasko co-counsels on a lawsuit that prevents USCIS from decertifying all regional centers and negotiates a Settlement Agreement. Read the highlights in this client alert.

Three KILP Partners Recognized in The Best Lawyers in America© 2023
Ronald Klasko, Bill Stock, and Elise Fialkowski have been included in the 29th edition of The Best Lawyers in America© in the area of immigration law.

Four KILP Attorneys Land on the 2023 Edition of Best Lawyers©: Ones to Watch
Michele Madera, Karuna Simbeck, Natalia Gouz, and Maria Mihaylova have been recognized in the 2023 Edition of Best Lawyers©: Ones to Watch for their outstanding professional excellence in immigration law.

FIRM FEATURE

Every month one Klasko employee is nominated for a Ronny Award. This month the Ronny Award went to Senior Tech Writer Alex Magalli. His nominator wrote:

“I would like to nominate Alexander Magalli for this month’s Ronnie. While an eccentric rabbit-lover, Alex has nevertheless been a wonderful support and mentor not just to myself but to the entire EB-1 team. His knowledge is boundless and his work ethic is second to none. He has helped me become a better writer, teammate, and employee, and he has selflessly given his time and attention to myself and others for no other reason than he is a dang good person. I’m thrilled to have him as our Senior Writer and hope to learn more from him in the months and years to come.”

Congratulations, Alex!

Stay Connected! Subscribe to our blog and follow us on Twitter, Facebook, Instagram, and LinkedIn.

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.