January 2023

A Note from Ron Klasko

2022 might best be remembered as our return to the new normal. Our firm returned to the old normal in some ways, such as our successful in person seminar in October. However, we have adapted to the new normal, which includes being flexible in accommodating the needs of our terrific and dedicated staff of lawyers, paralegals, and administrative staff to work remotely where necessary. We have transitioned our workplace seamlessly to meet the needs of our clients, many of whom are also working remotely. What hasn’t changed is our unwavering commitment to responsiveness, client service, and the highest quality and most creative immigration law services to our valued clients.

We look forward to meeting the challenges of 2023 as a truly national law firm with lawyers and staff in 14 states. We are better positioned than ever to meet and exceed the needs of our clients nationally and internationally.

However, before we look too far ahead, I and my partners want to pause to reflect on our blessings and to wish our clients and our staff a joyous holiday season and new year.

~ Ron Klasko

Chief Justice Roberts Issues Temporary Stay of ‘Title 42’; Thousands Wait in Mexico

Chief Justice Roberts of the U.S. Supreme Court ordered a temporary stay of Title 42 on December 19, 2022, to allow the Supreme Court time to consider the issue. Justice Roberts’ order came after the Department of Homeland Security (DHS) issued an update on December 13, 2022, on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld by the D.C. Circuit Court of Appeals in a ruling on December 16, 2022.

Title 42 prevents many migrants from seeking asylum in the United States because of COVID-19 concerns and requires them to wait in Mexico. According to reports, thousands of migrants, many from Haiti, who wish to enter the United States are in camps in Mexico. Two Title 42 amendments failed that had slowed down the passage of the $1.7 trillion funding bill that Congress passed and President Biden signed on December 23, 2022. Reportedly, the Biden administration also may be considering humanitarian parole for some Haitians, Nicaraguans, and Cubans, as was provided for Venezuelans recently.

Details:

• “Chief Justice Roberts Briefly Halts Decision Banning Border Expulsions,” New York Times, Dec. 19, 2022. https://www.nytimes.com/2022/12/19/us/politics/title-42-scotus-immigration-asylum.html (subscription required)
• Arizona v. Mayorkas, order issued Dec. 19, 2022. https://www.supremecourt.gov/orders/courtorders/121922zr_g314.pdf
• Application for a stay, submitted to Chief Justice Roberts Dec. 19, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250328/20221219140309326_Title%2042%20-%20Emergency%20Application%20for%20Stay%20File%20Version.pdf
• Federal respondents’ opposition to application for a stay pending certiorari, Dec. 20, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250530/20221220190658873_22A544%20Govt%20opp%20to%20Ariz%20stay%20final%20corrected.pdf
• Reply of applicant Arizona, et al. filed, Dec. 21, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250553/20221221084240400_Title%2042%20-%20Emergency%20Stay%20Reply%20File%20Version%20Final%202.pdf
• “Senate Passes $1.7 Trillion Omnibus Spending Bill Without Title 42 Protections,” National Review, Dec. 22, 2022. https://www.nationalreview.com/news/senate-passes-1-7-trillion-omnibus-spending-bill-without-title-42-protections/
• “Thousands Wait in Tent Camps in Mexico for a Chance to Cross the Border,” NBC News, Dec. 22, 2022. https://www.nbcnews.com/news/latino/thousands-wait-tent-camps-mexico-chance-cross-border-rcna63026
• “U.S. Court Rejects Maintaining COVID-19 Asylum Restrictions,” Associated Press, Dec. 17, 2022. https://apnews.com/article/texas-donald-trump-immigration-missouri-amarillo-e6f9ce07b955bdc962118a798129f319

DHS Public Charge Ground of Inadmissibility Final Rule Effective December 23

On December 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule went into effect. The previously announced final rule “provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. This final rule restores the historical understanding of a ‘public charge’ that had been in place for decades before the previous administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination,” DHS said.

When making a public charge inadmissibility determination under the final rule, DHS said it will consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills”; a sufficient “Affidavit of Support Under Section 213A of the INA (when one is required)”; and prior or current receipt of “Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called ‘General Assistance’); or long-term institutionalization at government expense.”

For public charge inadmissibility determinations, DHS will not consider receipt of noncash benefits (for example, the Supplemental Nutrition Assistance Program, public housing, school lunch programs) other than long-term institutionalization at government expense.

Applicants must file the updated 12/23/22 edition of I-485, Application to Register Permanent Residence or Adjust Status. Earlier versions will be rejected, U.S. Citizenship and Immigration Services (USCIS) said.

Details:

• USCIS alert, Dec. 19, 2022. https://www.uscis.gov/newsroom/alerts/dhss-public-charge-final-rule-goes-into-effect-on-dec-23
• Public Charge Ground of Inadmissibility, DHS Final Rule, 87 Fed. Reg. 55472 (Sept. 9, 2022). https://www.govinfo.gov/content/pkg/FR-2022-09-09/pdf/2022-18867.pdf
• USCIS Policy Manual update, Part G—Public Charge Ground of Inadmissibility. https://www.uscis.gov/policy-manual/volume-8-part-g
• Updated Form I-485, Application to Register Permanent Residence or Adjust Status (12/23/22 edition). https://www.uscis.gov/i-485
• Public Charge Resources, USCIS. https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/public-charge-resources
• Clarifying the 2022 Public Charge Final Rule (infographic). https://www.uscis.gov/sites/default/files/document/flyers/PublicChargeFinalRule2022_Infographic_V4_508.pdf

E-Verify Restores Employers’ Ability to Upload Multiple Hiring Sites Simultaneously

E‑Verify has restored the ability of employers, employer agents, and corporate administrators to upload multiple hiring sites simultaneously. E-Verify said this feature increases efficiency for companies with multiple hiring sites by providing an alternative to manual entry and is available for all access methods when adding hiring sites.

An account may have an unlimited number of hiring sites, but no more than 1,000 hiring sites may be uploaded at a time. Users can add multiple hiring sites by uploading a CSV file during initial enrollment or within the company profile post-enrollment. Companies must upload a valid CSV file that follows the requirements listed on the “View CSV Guidelines” page. E‑Verify provides a CSV template and a link to the “View CSV Guidelines” page during the bulk upload process.

Questions may be emailed to E-Verify@uscis.dhs.gov.

Details:

• E-Verify notice. https://bit.ly/3VjhFm4

USCIS Provides List of Options for Nonimmigrant Workers Following Termination of Employment

On December 19, 2022, U.S. Citizenship and Immigration Services (USCIS) provided a compilation of options that may be available to nonimmigrant workers seeking to remain in the United States in a period of authorized stay following termination of employment.

The compilation includes details on:

• A discretionary 60-day grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.
• Portability to a new employer, allowing workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved. Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) can transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer (commonly known as “porting”).

Other options include change of status, change of status and employer, adjustment of status, period of authorized stay with a “compelling circumstances” employment authorization document, expedited adjudication criteria, and departure from the United States and seeking readmission in the same or another classification.

Details:

• USCIS alert, Dec. 19, 2022. https://www.uscis.gov/newsroom/alerts/options-for-nonimmigrant-workers-following-termination-of-employment

USCIS Seeks Comments on EB-5 Regional Center Forms for Investors

U.S. Citizenship and Immigration Services (USCIS) seeks comments until January 23, 2023, on two forms associated with the EB-5 Regional Center (RC) program.

USCIS explained that on March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act of 2022, which immediately repealed the former RC program statute. The law also reauthorized a “substantially reformed” RC program, effective May 14, 2022. USCIS said that although it will continue to provide similar services for the newly reformed RC program as it did under the former RC program, the newly authorized program “has a different legal framework and requirements from the previously authorized program.” Consequently, USCIS concluded that Form I-526, Immigrant Petition by Alien Entrepreneur, associated with the EB-5 program, would not gather sufficient information to adjudicate investor petitions under the new program.

Accordingly, USCIS split the former Form I-526, Immigrant Petition by Alien Entrepreneur, into two versions: Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. USCIS said the two separate forms were intended “to better streamline the adjudication process for Standalone Investors and Regional Center Investors; specifically, Form I-526 will be used by a Standalone Investor, and Form
I-526E will be used by an investor pooling their investment with one or more qualified immigrants” under the new RC program to petition for status as an immigrant to the United States. USCIS began accepting the new Forms I-526 and I-526E on July 12, 2022. USCIS said it will continue to adjudicate all Forms I-526 filed before March 15, 2022 (the date of enactment of the EB-5 Reform and Integrity Act of 2022), according to the applicable eligibility requirements at the time the petition was filed.

On June 24, 2022, in Behring v. Mayorkas, the U.S. District Court for the Northern District of California preliminarily enjoined USCIS from “treating as deauthorized the previously designated regional centers” including “processing new I-526 petitions from immigrants investing through previously authorized regional centers…just as the agency would do for a newly approved regional center.” On September 1, 2022, the U.S. District Court in Behring approved a settlement between the parties. Under the terms of the settlement, previously designated RCs did not lose their designations as a result of the EB-5 Reform and Integrity Act of 2022. USCIS said that as it is working to implement the settlement if it determines changes to the Forms
I-526 and I-526E are necessary, it will “pursue such changes through either this form revision process or other appropriate mechanism.”

Details:

• USCIS 30-day notice. 87 Fed. Reg. 78990 (Dec. 23, 2022). https://www.govinfo.gov/content/pkg/FR-2022-12-23/pdf/2022-27973.pdf
• I-526, Immigrant Petition by Standalone Investor. https://www.uscis.gov/i-526
• I-526E, Immigrant Petition by Regional Center Investor. https://www.uscis.gov/i-526e

Guangzhou Immigrant Visa Unit Closes Until Further Notice; Limited Services Announced at Other U.S. Embassies and Consulates in China

The Immigrant Visa Unit of the U.S. consulate in Guangzhou, China, announced that beginning December 19, 2022, it will be closed for regular visa services until further notice due to limited resources.  The unit will notify the public once it can resume normal immigrant visa (IV) operations and will communicate with IV applicants to reschedule their canceled appointments.

A web form is available at https://china.usembassy-china.org.cn/visas/immigrant-visas/immigrant-visa-unit-question/  to submit questions, although response times are expected to be delayed.

The U.S. Mission in China also announced that due to the surge of COVID-19 infections across China, the U.S. embassy in Beijing and the U.S. consulate in Shanghai are providing passport and emergency citizen services only. The U.S. consulates in Wuhan, Shenyang, and Guangzhou will only provide emergency consular services until further notice.

Details:

• “Alert: Update From U.S. Mission China Consular Services for December 15, 2022,” Dec. 16, 2022. https://china.usembassy-china.org.cn/alert-update-from-u-s-mission-china-consular-services-for-december-15-2022/
• “Alert: Reduction in Non-Emergency Consular Operations at U.S. Consulate Shenyang and U.S. Consulate Wuhan,” Dec. 13, 2022. https://china.usembassy-china.org.cn/alert-reduction-in-non-emergency-consular-operations-at-u-s-consulate-shenyang-and-u-s-consulate-wuhan/

USCIS Announces Trial for Naturalization Test Updates

The Department of Homeland Security announced that U.S. Citizenship and Immigration Services (USCIS) intends to conduct a trial for updates to the current naturalization test. The trial is tentatively scheduled for five months in 2023.

The purpose of the trial is to test a civics component with updated format and content and a newly developed English-speaking component “that could become standard.” The naturalization test has four components: reading, writing, civics, and the ability to speak English. Currently, the reading and writing portions of the naturalization test are standard.

In response to President Biden’s executive order 14012, which included a directive to review the naturalization process, USCIS subject-matter experts reviewed the naturalization test and recommended redesigning the speaking and civics portions to improve standards. The proposed revisions are also “consistent with the feedback that USCIS has received from multiple external stakeholder groups,” the agency said.

USCIS will conduct the trial with the help of volunteer community-based organizations (CBOs) that work with immigrant English-language learners and lawful permanent residents preparing for naturalization. USCIS will seek approximately 1,500 individuals enrolled in adult education classes to take the trial test. The agency will conduct national engagements for interested CBOs and will then publish a request for volunteer CBOs.

Details:

• “USCIS News Release, Dec. 14, 2022. https://www.uscis.gov/newsroom/news-releases/uscis-announces-trial-for-updates-to-the-naturalization-test

Green Cards Automatically Extended for Naturalization Applicants Who File on 12/12/22 or Later, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) said it is automatically extending the validity of Permanent Resident Cards (green cards) for lawful permanent residents (LPRs) who applied for naturalization on December 12, 2022, or later.

USCIS will update the language on Form N-400 receipt notices to extend green cards for up to 24 months for these applicants. The receipt notice can be presented with the expired green card as evidence of continued status as well as for identity and employment authorization under List A of Employment Eligibility Verification (Form I-9) if presented before the expiration of the 24-month extension period, the agency said.

LPRs who filed for naturalization before December 12, 2022, will not receive a Form N-400 receipt notice with the extension. If their green card expires, they must still file Form I-90 or receive an ADIT stamp in their passport to maintain valid evidence of their LPR status. LPRs who lose their green card still must file Form I-90, even if they have applied for naturalization and received the automatic extension under the updated policy. USCIS said this is because noncitizens must carry within their personal possession proof of registration, such as the green card and any evidence of extensions, “or may be subject to criminal prosecution under INA 264(e).” Applicants who require an ADIT stamp may request an appointment at a USCIS Field Office from the USCIS Contact Center.

Details:

• “USCIS Updates Policy to Automatically Extend Green Cards for Naturalization Applicants,” USCIS Alert, Dec. 9, 2022. https://www.uscis.gov/newsroom/alerts/uscis-updates-policy-to-automatically-extend-green-cards-for-naturalization-applicants
• “Extension of Permanent Resident Card for Naturalization Applicants,” USCIS Policy Alert, PA-2022-26, Dec. 9, 2022. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20221209-ExtendingPRC.pdf
• USCIS Policy Manual, https://www.uscis.gov/policy-manual

KLASKO NEWS

FIRM NEWS

We hope you all had a joyous holiday season! We can’t wait to see what 2023 will bring. Happy New year!

RECENT SPEAKING ENGAGEMENTS

Daniel B. Lundy
On December 14^th, Dan Lundy spoke in an Investment Migration Council webinar event titled Does the EB 5 Program makes more sense than ever for families seeking permanent U S residency?

UPCOMING SPEAKING ENGAGEMENTS

H. Ronald Klasko
On January 12^th, Ron Klasko will be speaking at the EB-5 & Global Immigration Expo in Miami on a panel entitled A World of Opportunities.

H. Ronald Klasko
On January 20^th, Ron Klasko will be speaking at the 2023 AILA Midwinter Conference in San Juan on a panel titled Common NIV Myths.

William A. Stock
On January 20^th, Bill Stock will be speaking at the 2023 AILA Midwinter Conference in San Juan on a panel titled Tackling Post-Pandemic Challenges.

ICYMI: RECENT BLOG POSTS AND ALERTS

What’s New in the EB-5 Immigrant Investor Program?
In this article, Vicki Li sheds light on what investors should be aware of now that the EB-5 Regional Center Program is settling into its new normalcy.

Developer Options Regarding Regional Center Sponsorship
In this blog, Ron Klasko discusses EB-5 options for developers regarding regional center sponsorships.

Podcast Episode 31: H-1B Layoff Information for Employees
This is a transcription of a podcast episode of Statutes of Liberty between Anu Nair, Bill Stock, and Maria Mihaylova as they discuss the potential impact of recent layoffs occurring in the different industries and how they affect H-1B employees.

Urgent Action Required for Previously Approved Regional Centers
Ron Klasko addresses what urgent actions must be made for previously approved regional centers and explains what two decisions you should make before December 29th.

FIRM FEATURE

Every month one Klasko employee is nominated for a Ronny Award. Last month the Ronny Award went to Ashley Kauffman. Her nominator wrote:

“I nominate Ashley Kaufmann, while having a chat about the Christmas holiday and the tradition that I have with my children regarding the Advent Calendar, I told her that the “Elves” also bring me my favorite candy, which is Lindt Peppermint Truffles. The next day I came to work to find Lindt Truffles on my desk with a note that said, “They did not have mint :(, but thank you for being so great (with a heart).” What an amazing and thoughtful thing to do. It made me very happy. I am glad that I get to work for Ashley, who is amazing and an asset to the Firm. Things like this will always stay with me.”

Congratulations, Ashley!

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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.