U.S. Immigration Updates - October 2023 Monthly Review

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.

SOURCES: USCIS alert (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."

SOURCE: USCIS alert (Oct. 26, 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 also, allowing for a 60-day public comment period. USCIS received two comments.

SOURCE: USCIS notice (E-Verify NextGen), 88 Fed. Reg. 73610 (Oct. 26, 2023).

State Department Plans 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.

SOURCE: US Office of Management and Budget, Office of Information and Regulatory Affairs: Pending EO 12866 Regulatory Review (reginfo.gov)

Department of Homeland Security Plan 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 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.

SOURCE: USCIS notice of proposed rulemaking (advance copy), 88 Fed. Reg. 72870 (Oct. 23, 2023).

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.

SOURCE: USCIS notice of USCIS Policy Alert, PA-2023-29 (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."

SOURCE: USCIS Newsroom: Oct. 11, 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.

To use the E-COA tool, individuals need a USCIS online account, and must enter their last name, date of birth, and new physical and mailing addresses. Individuals are also encouraged to include information about their pending application, petition, or request.

Changing your address with the U.S. Postal Service (USPS) will not change your address with USCIS. Please update your information with both USCIS and USPS. Address changes made through E-COA will not affect Freedom of Information Act (FOIA) or Privacy Act (PA) requests. If you need to change your address for a FOIA or PA request, please email FOIAPAQuestions@uscis.dhs.gov.

SOURCE: USCIS Newsroom: Oct. 12, 2023.

State Department Restores Previous Version of Regulation Governing Public Change 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 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.

SOURCE: DOS news release (Oct. 6, 2023)

State Department Announces U.S. Passport Processing Times, Tips

The Department of State (DOS) announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks. Processing times do not include mailing time.

DOS said that between October 2022 and September 2023, DOS issued more than 24 million passport books and cards, the most in U.S. history. DOS encourages applicants to check the status of their passport application and sign up for updates via email.

DOS also released the following tips for U.S. passport applicants:

1. If you're renewing your application, submit your most recent passport with your application. Sign and date Form DS-82.
2. Complete all sections of your form including entering your correct Social Security number. Do not leave anything blank. If you're applying for the first time or with your child under age 16, wait to sign the form until you are instructed to do so. If you're renewing by mail, sign and date the form on your own.
3. Closely follow the passport photo requirements.
4. Provide evidence of U.S. citizenship.
5. If your current name is not the same as the name on your most recent passport, include your name change document (such as marriage certificate, divorce decree, or court order).

SOURCE: Important Updates on Passport Processing (state.gov)

Biometric Services Fee Exempted for All Form I-539 Applicants

U.S. Citizenship and Immigration Services (USCIS) announced on September 25, 2023, that it is exempting the biometric services fee for Form I-539, Application to Extend/Change Nonimmigrant Status. Beginning October 1, 2023, applicants do not need to pay the $85 biometric services fee.

Certain filers who filed before October 1 will still be scheduled for, and should attend, an ASC appointment. In most cases, after October 1, applicants will not be scheduled to attend a biometric services appointment. However, if USCIS determines that biometrics are required, the applicant will receive a notice with information about appearing for their biometric services appointment, the agency noted.

USCIS warned:

If you mistakenly submit the biometric services fee and the payment is submitted separately from the Form I-539 fee, we will return the biometric services fee and accept the Form I-539. If you mistakenly submit the biometric services fee and the payment is combined with a paper-based Form I-539 filing fee, this is considered an incorrect filing and we will reject the Form I-539. If you mistakenly authorize a credit card payment that combines the biometric services fee with the Form I-539 application fee, we will accept the application, and only charge the application fee.

USCIS said the biometric services fee exemption will apply to all applicants filing on or after October 1, 2023, including those applicants filing Form I-539 requesting an extension of stay in, or change of status to, H-4, L-2, or E nonimmigrant for whom USCIS had previously suspended the biometrics requirement through September 30, 2023.

SOURCE: USCIS alert (Sept. 27, 2023)

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