U.S. Immigration Updates – May 2023 Monthly Review

Department of State Delays Consular Fee Rule Effective Date

The Department of State (DOS) is delaying until June 17, 2023, the effective date of its rule raising consular fees for most nonimmigrant visas and special visas, published on March 28, 2023. DOS said this was to "provide for a 60-day delay in the effective date after receipt of the final rule in the Congress."

Under the final rule, most consular service fees will be raised, although the fee increases are smaller than those proposed in the notice of proposed rulemaking due to revised projections for fiscal year (FY) 20222024 demand, DOS said.

Below are the adjustments that DOS will implement under the final rule:

• The application processing fee for non-petition-based nonimmigrant visas (NIVs) (except the E category) will increase from $160 to $185.
• The application processing fee for H, L, O, P, Q, and R category NIVs will increase from $190 to $205.
• The processing fee for Border Crossing Cards for Mexican citizens aged 15 and over will increase from $160 to $185.
• The fee for E category NIVs will increase from $205 to $315.
• The fee for the exchange visitor waiver of two-year residency requirement will stay at $120, instead of the proposed $510.

SOURCE: ABIL Immigration Insider, May 28, 2023, and https://www.govinfo.gov/content/pkg/FR-2023-05-26/pdf/2023-11420.pdf

OFLC Announces ETA 9089 Case Submission for PERM in FLAG, Requires New Application Form/Process as of June 1

On May 26, 2023, the Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) announced Form ETA 9089 case submission for PERM in the Foreign Labor Application Gateway (FLAG), and related technical guidance.

OFLC had previously announced a delay to the date on which it would transition PERM submission and processing to FLAG and concurrently implement the revised Form ETA 9089 (now June 1, 2023). In response to stakeholder requests, OFLC used the delay to work with DOL's Office of the Chief Information Officer to provide filers the option to link prevailing wage determinations to a PERM application where users no longer have access to the FLAG account from which the prevailing wage request was submitted. Information and guidance on how to use this option is in the addendum to the Form ETA 9089 User Guide on the PERM program page on FLAG.

OFLC noted that filers have been able to use FLAG's case creation functionality in the PERM module since April 24, 2023. OFLC has received and reviewed numerous help desk inquiries about filing the revised version of Form ETA 9089. OFLC reminded users that it does not provide case-specific guidance on filing procedures and said it "strongly encourages all applicants to review the PERM regulations, the frequently asked questions (FAQs), and the Instructions to the Form ETA 9089 for general guidance. OFLC will continue to review received Help Desk inquiries and will provide additional guidance in the form of new FAQs."

OFLC said one question has been so common that OFLC believes it should be addressed before full deployment of the PERM module in FLAG "to prevent confusion when filers try to submit PERM applications":

SOURCE: ABIL Immigration Insider, May 28, 2023, and https://www.dol.gov/agencies/eta/foreign-labor

Florida Law Imposes Restrictions, New Requirements for Employers

The state of Florida just enacted FL 1718, effective July 1, 2023. The legislation specifies that certain driver licenses and permits issued by other states exclusively to "unauthorized immigrants" are not valid in Florida; requires certain hospitals to collect patient immigration status information on admission or registration forms; and requires the Department of Economic Opportunity to enter an order and require repayment of economic development incentives if the department finds or is notified that an employer has knowingly employed an unauthorized person without verifying the employment eligibility of such person, among other provisions.

The new law includes many provisions related to employers. For example, it:

• Requires an employer to verify a new employee's employment eligibility within 3 business days after the first day the new employee begins working for pay;
• Requires public agencies to use the E-Verify system to verify a new employee's employment eligibility;
• Requires private employers with more than 25 employees to use the E-Verify system to verify a new employee's employment eligibility;
• Requires employers to certify use of the E-Verify system on unemployment compensation or reemployment assistance system returns;
• Requires employers to use a certain form if the E-Verify system is unavailable;
• Requires employers to retain specified documentation for a certain number of years;
• Prohibits an employer from continuing to employ an unauthorized noncitizen after obtaining knowledge that a person is or has become unauthorized, with an exception;
• Authorizes specified persons or entities to request, and requires an employer to provide, copies of specified documentation;
• Requires a public agency to require in any contract that a contractor or subcontractor register with and use the E-Verify system;
• Prohibits a public agency, contractor, or subcontractor from entering into a contract unless each party to the contract registers with and uses the E-Verify system; and
• Requires the Florida Department of Economic Opportunity to impose fines against employers under certain circumstances.

SOURCE: ABIL Immigration Insider, May 28, 2023, and https://m.flsenate.gov/Session/Bill/2023/1718/BillText/er/PDF

New Comprehensive Immigration Bill to be Introduced in US House

Florida Republican Rep. Maria Elvira Salazar and Texas Democrat Rep. Veronica Escobar have teamed up on a sprawling immigration bill that aims to revamp asylum processing, slash visa backlogs and provide a path to legal status for millions of undocumented immigrants.

The nearly 500-page bill, set to be announced Tuesday, represents a rare bipartisan effort on immigration, a topic that has become a political wedge issue and source of stalemate in Congress for decades. And it includes proposals that incorporate elements from earlier, narrower bipartisan immigration bills.

The proposed legislation would create a path to citizenship for undocumented immigrants who came to the country as children, known as Dreamers. It would also establish a program to allow other undocumented immigrants to live and work in the country legally if they pay restitution.

The measure would overhaul how asylum claims are processed at the border and invest more money into border security infrastructure and technology.

The proposed bill takes aim at the work visa and green card systems.

It would raise the limit on certain types of green cards for citizens of each country from 7 percent of the total available to 15 percent, to try to alleviate backlogs that have kept citizens from India and China waiting years for a green card to become available. It would also make more green cards available by exempting the green card applicant's minor children and spouses from the cap.

The bill would codify a program to provide work permits to the spouses of certain high-skilled visa holders and prevent the children of visa holders from "aging out" of their parents' application due to processing delays.

It would also earmark millions of dollars to speed up visa processing, including more than $2.5 billion to U.S. Citizenship and Immigration Services' operations and support account. Additionally, the bill would create a new position for an immigration agency coordinator to make recommendations to improve processing across USCIS and the departments of State and Labor.

SOURCE: Suzanne Monyak, "Salazar, Escobar to propose comprehensive immigration bill." Roll Call, May 23, 2023: https://rollcall.com/2023/05/23/salazar-escobar-to-propose-comprehensive-immigration-bill/

June 2023 Visa Bulletin Reports India Employment-Based Retrogressions

The Department of State's (DOS) Visa Bulletin for June 2023 reports a retrogression for the India EB-5 category and a likely retrogression soon for the India EB-3 category:

Steady number use and high demand in the EB-3 category for India will most likely necessitate retrogression of the EB-3 final action date for India as early as next month to hold number use within the maximum allowed under the FY 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

As DOS informed readers in Item F of the May 2023 Visa Bulletin, it has become necessary to retrogress the EB-5 final action date for India effective in June. India's number use in the family and employment preference categories for FY 2023 is subject to prorating under INA § 202(e). Number use has been consistently robust throughout the fiscal year in the family and employment preference categories, and it has been determined that India is approaching its prorated limit for EB-5 numbers. Thus, applicants from India are subject to a final action date of 01APR17. This situation will be continually monitored, and any necessary adjustments will be made accordingly.

SOURCES: ABIL Immigration Insider, May 14, 2023; and https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-june-2023.html

OFLC Postpones Date for Submitting revised PERM and CW-1 Forms in FLAG

The Department of Labor's Office of Foreign Labor Certification (OFLC) is postponing to June 1, 2023, the date for filers to begin submitting the new, revised applications for permanent employment certification and CW-1 applications for temporary employment certification in the Foreign Labor Application Gateway (FLAG) system. Applicants should continue to use the current PERM and CW-1 forms until June 1, OFLC said.

OFLC said it will no longer accept any new applications submitted via the legacy PERM Online System after May 31, 2023, at 6:59 pm ET. OFLC will no longer accept the previous version of Form ETA-9089 or Forms ETA-9141C/9142C, and their related forms, after May 31, 2023, either electronically or submitted by mail.

SOURCES: ABIL Immigration Insider, May 14, 2023; and https://www.dol.gov/agencies/eta/foreign-labor

CBP No Longer Requires Proof of Vaccination for Air Travelers

U.S. Customs and Border Patrol's (CBP) Carrier Liaison Program announced on May 11, 2023, that under a Presidential Proclamation, the COVID-19 vaccination requirement for noncitizen nonimmigrant air travelers was terminated as of May 12, 2023.

The rescission took effect for flights departing to the United States from a foreign country on or after 12:01 am ET on May 12, 2023. Noncitizen nonimmigrant air passengers no longer must show proof of being fully vaccinated with an accepted COVID-19 vaccine to board a flight to the United States, CBP said.

SOURCES: ABIL Immigration Insider, May 14, 2023; and https://www.whitehouse.gov/briefing-room/presidential-actions/2023/05/09/a-proclamation-on-revoking-the-air-travel-covid-19-vaccination-requirement/

ICE Extends Form I-9 Requirement Flexibility

U.S. Immigration and Customs Enforcement (ICE) announced on May 4, 2023, that employers will have 30 days to comply with Form I-9, Employment Authorization Verification, requirements after the COVID-19 flexibilities sunset on July 31, 2023. ICE is encouraging employers to plan ahead to complete all required physical inspections of identity and employment eligibility documents by August 30, 2023.

SOURCES: ABIL Immigration Insider, May 7, 2023; and https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply

COVID-19 Vaccine Requirements Ending for International Travelers to the United States

As of May 12, 2023, COVID-19 vaccines will no longer be required for international travelers entering the United States via air, land ports of entry, and ferry terminals. The Biden administration said the rescission of these travel restrictions were in alignment with the end of the Public Health Emergency scheduled for May 11, 2023.

SOURCES: ABIL Immigration Insider, May 7, 2023; and https://bit.ly/3B3YqVT

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