Immigration Updates - September 2024

DHS Implements 'Keeping Families Together' Parole-in-Place Program, Texas Files Complaint

On August 19, 2024, the Department of Homeland Security (DHS) announced a Federal Register notice to implement Keeping Families Together, a parole-in-place process for certain noncitizen spouses and stepchildren of U.S. citizens. DHS estimated that up to 500,000 noncitizen spouses and 50,000 noncitizen stepchildren of U.S. citizens may meet the eligibility criteria. "If granted parole, these noncitizen spouses and noncitizen stepchildren of U.S. citizens, if otherwise eligible, could apply for lawful permanent residence without leaving the country," DHS said. Texas filed a complaint almost immediately.

The process started on August 19, 2024. To apply, individuals must file Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, online after creating a myUSCIS account. The filing fee is $580. Fee waiver requests for Form I-131F will not be accepted, DHS said.

On August 23, 2024, the state of Texas, along with more than a dozen states, filed a complaint in the U.S. District Court for the Eastern District of Texas, Tyler Division, against the program, calling it "unlawful" and arguing that it "incentivizes illegal immigration and will irreparably harm the Plaintiff States." U.S. Citizenship and Immigration Services (USCIS) recently released a filing guide for the new parole process and frequently asked questions.

Court Preliminarily Approves Proposed Settlement in Garcia Perez v. USCIS

The U.S. District Court for the Western District of Washington granted preliminary approval of a proposed settlement agreement in Garcia Perez v. U.S. Citizenship and Immigration Services.

The case is a class action lawsuit involving the federal government's practices concerning Employment Authorization Documents for applicants for asylum or withholding of removal. Under the terms of the proposed settlement, class members are entitled to new procedures relating to the crediting of time toward eligibility for work authorization.

Details:

• USCIS notice (scroll to Aug. 5, 2024).

Annual Limits Reached in EB-3, EW, and EB-5 Unreserved Visa Categories

The Department of State (DOS) announced on August 16, 2024, that annual limits have been reached in the EB-3, EW, and EB-5 unreserved categories for this fiscal year. DOS noted that:

• The annual limit for EB-3 visas is 28.6 percent of the worldwide employment limit, of which not more than 10,000 may be made available in the EW category.
• The annual limit for EB-5 visas is 7.1 percent of the worldwide employment limit, of which 68 percent is available for unreserved visa categories (C5, T5, I5, R5, RU, NU). Additionally, unused EB-5 reserved visas from FY 2022 may be made available in the EB-5 unreserved categories for FY 2024.

Since all available EB-3, EW, and EB-5 unreserved visas for FY 2024 have been used, DOS noted that "embassies and consulates may not issue visas in these categories for the remainder of the fiscal year. The annual limits will reset with the start of the new fiscal year (FY 2025) on October 1, 2024. At that point, embassies and consulates may resume issuing immigrant visas in these categories to qualified applicants."

USCIS Releases Filing Guide Ahead of New Spousal Parole Program

U.S. Citizenship and Immigration Services (USCIS) has created a filing guide for the new "Keeping Families Together" spousal parole process that begins August 19, 2024. USCIS will reject any related filings received before that date.

Under the new process announced in June 2024, USCIS will consider, on a case-by-case basis, requests for certain noncitizen spouses of U.S. citizens who have been continuously physically present without admission or parole in the United States for 10 years or more, have no disqualifying criminal convictions, do not pose a threat to national security and public safety and pass vetting, are otherwise eligible to apply for adjustment of status, and merit a favorable exercise of discretion.

If paroled, USCIS said, these noncitizens "will generally be able to apply for lawful permanent residence without having to leave the United States and be processed by a U.S. consulate overseas." The Department of Homeland Security estimates that "500,000 noncitizen spouses of U.S. citizens could be eligible to access this process; on average, these noncitizens have resided in the United States for 23 years. Approximately 50,000 noncitizen children of these spouses are estimated to be eligible to seek parole under this process."

USCIS said additional information on the application process, required fee, and other key information will be detailed in a forthcoming Federal Register notice.

EOIR Relocates Houston Immigration Court

The Executive Office for Immigration Review (EOIR) announced on August 15, 2024, that the Houston-Smith Street Immigration Court is relocating and will be renamed the Houston-Jefferson Street Immigration Court. The court will suspend normal operations at the close of business on August 22, 2024, to prepare for relocation. The court will reopen at its new location on August 27, 2024.

On August 23 and 26, hearings will proceed at 1919 Smith Street, which EOIR said will be established as the court's annex effective August 27. Staff will remain on-site and available to accept filings, answer phone calls, and oversee court operations. EOIR said it will provide official advance notice to all parties whose cases are reassigned.

• The new location is: Houston-Jefferson Street Immigration Court
  500 Jefferson Street, Suite 300
  Houston, TX 77002

Visa Bulletin Reports on Availability of Employment-Based Visas in September

The Department of State's Visa Office has released the Visa Bulletin for September 2024. The bulletin notes that:

• There has been a steady increase in demand for employment-based visas. As a result, most employment-based preference category limits for fiscal year (FY) 2024 are expected to be reached during September, if not sooner. If at any time an annual limit is reached, the relevant preference category would become immediately "unavailable," and no further applications falling within that preference category would be approved through the end of the fiscal year.

• In September, the EB-3 final action dates for Rest of World, Mexico, and the Philippines, as well as the essential worker (EW) final action dates for Rest of World and Mexico, will retrogress. The bulletin says that the issuance totals in these categories are rapidly approaching the annual limit for FY 2024. "It is anticipated that the final action dates will advance in October 2024; however, date movement will depend on worldwide demand for EB-3 and EW visas and the estimated FY 2025 category limit," the bulletin states.

USCIS Completes Second Random Selection for Regular Cap From Previously Submitted FY 2025 H-1B Cap Registrations

U.S. Citizenship and Immigration Services (USCIS) announced on August 5, 2024, that it has completed its second random selection to reach the fiscal year (FY) 2025 H-1B regular cap numerical allocation.

As background, following its initial selections in March 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it would need to select additional registrations for unique beneficiaries to reach the FY 2025 regular cap numerical allocation.

USCIS said it did not conduct a second selection for the advanced degree exemption (master's cap) because "enough masters cap registrations had already been selected and sufficient petitions were received based on these registrations as projected to meet the master's cap numerical allocation."

USCIS said it selected 114,017 beneficiaries, resulting in 120,603 selected registrations in the initial selection for the FY 2025 H-1B cap. The agency selected 13,607 beneficiaries in the second selection for the FY 2025 H-1B regular cap, resulting in 14,534 selected registrations.

Details:

• USCIS notice (Aug. 5, 2024).
• FY 2025 H-1B Cap Registration Process Update, USCIS (Aug. 5, 2024).

DOS Releases FY 2025 Diversity Visa Results

The Department of State's Visa Bulletin for September includes results from the diversity visa (DV) lottery for fiscal year (FY) 2025 (October 1, 2024, to September 30, 2025). The Kentucky Consular Center in Williamsburg, Kentucky, has registered and notified the approximately 131,060 selectees who are eligible to participate. Entrants registered for the DV-2025 program were selected at random from 19,927,656 qualified entries received. The country with the most registrants selected is Algeria, with 5,526.

The bulletin notes that those selected "will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete all required steps." Many more were selected than can receive visas (55,000) to account for factors such as some selectees not completing their cases or being found ineligible for a visa.

Dates for the DV-2026 program registration period will be publicized in the coming months, the bulletin notes.

E-Verify Employers Should Not Create a Case for Re-Paroled Ukrainian Employees, USCIS Says; Additional Guidance Released

U.S. Citizenship and Immigration Services (USCIS) issued an update to its policy on Ukrainian employees with parole, stating that E-Verify employers should not create a case in E-Verify for re-paroled employees unless they are newly hired.

USCIS had announced previously that beginning February 27, 2024, certain Ukrainian citizens and their immediate family members displaced by the Russian invasion and paroled into the United States can request an extension of parole (re-parole) for up to two additional years.

USCIS said that parolees who are approved by USCIS for re-parole should print a copy of their electronic Form I-94, Arrival/Departure Record, from the CBP I-94 website. An unexpired Form I-94 that shows a class of admission of "UHP" and a most recent date of entry on or before September 30, 2024, is an acceptable document that temporarily shows identity and employment authorization for up to 90 days, USCIS said: "These employees should provide a printed Form I-94 if they are newly hired employees or during reverification on Form I-9."

USCIS also released a reminder with additional details about which Ukrainian parolees and immediate family members are employment-authorized incident to parole.

Details:

• E-Verify notice (Aug. 6, 2024).

USCIS Provides Fact Sheet on STEM Petition Trends in EB-2 and O-1A Categories

U.S. Citizenship and Immigration Services (USCIS) has provided a fact sheet on science, technology, engineering, and mathematics (STEM) petition trends in the EB-2 and O-1A categories in fiscal years 2018 to 2023. The fact sheet highlights data trends in these categories during fiscal years (FYs) 2022 and 2023 compared with fiscal years before a policy guidance change in January 2022. The trends include an increase in receipts of EB-2 petitions from FY 2022 to FY 2023 and increases in National Interest Waiver use and O-1A petition receipts, USCIS said.

In January 2022, USCIS updated its policy guidance to clarify how certain professionals in STEM fields can demonstrate eligibility for (a) the National Interest Waiver (NIW) in an employment-based immigrant status (EB-2), and (b) nonimmigrant status for individuals of extraordinary ability (O-1A).

OFLC Announces Upcoming Final Decommission of Permanent Online System

The Department of Labor's Office of Foreign Labor Certification (OFLC) alerted employers and other interested stakeholders that the legacy Permanent (PERM) Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024. The Foreign Labor Application Gateway (FLAG) System replaces the legacy Permanent Online System. OFLC said:

On December 1, 2024, the legacy Permanent Online System will no longer be accessible to account holders and the general public will be redirected to the FLAG System. Stakeholders who require documents from their Permanent Online System accounts are strongly encouraged to access and download those documents well in advance of December 1, 2024. Permanent Online System account holders who need to upload documents or request a specific case action on an application submitted in the Permanent Online System (e.g., request reconsideration, withdraw applications, etc.) should complete action in the system by November 30, 2024, at 7 PM EST.

Applications still pending in the Permanent Online System after November 30, 2024, will continue to be processed by OFLC. Starting December 1, 2024, stakeholders who need to submit a response to the Department, upload documents, or request a specific case action on an application that was submitted in the Permanent Online System must do so by email, sent to the PLC Help Desk at PLC.Help@dol.gov. Documents should be submitted as PDF attachments and named with the case number assigned and title of the attachment. After November 30, 2024, stakeholders with applications pending in the Permanent Online System will not be able to upload documents directly. Employers and their attorneys/agents should continue to check their email for correspondence and notifications related to these pending applications.

Details:

• OFLC notice (scroll to Aug. 7, 2024).

Colombia: An Emerging Haven for Foreign Retirees

In recent years, Colombia has emerged as an attractive destination for foreign retirees, consistently ranking high in various international listings. The country's appeal lies in its diverse climate, rich biodiversity, affordable cost of living, excellent culinary offerings, and vibrant cultural scene. Foreign retirees often highlight the warm and welcoming attitude of Colombians, which greatly facilitates their integration into local communities. Cities like Medellín, Cartagena, Santa Marta, and those in the coffee-growing region are particularly popular among this demographic.

Visa Options for Retirees

Colombia offers a specific migrant visa category for retirees, outlined in its current immigration regulations. This visa is available to foreigners with a steady monthly income from a pension granted by a government or private pension fund. The visa is valid for up to three years, can be renewed indefinitely, and allows multiple entries into the country. Retirees who have held this visa continuously for at least five years are eligible to apply for a permanent resident permit.

Requirements for the Retiree Visa

To obtain the retiree visa, applicants must provide:

1. Pension Certification: Proof of a monthly pension payment of at least $1,000 USD.
2. Police Clearance: A document confirming the applicant has no criminal record duly apostilled and sworn (translated).
3. Medical Certificate: This document can be issued from a doctor abroad and must come apostilled and sworn (translated if needed) or issued in Colombia.
4. International Medical Insurance: Confirmation of coverage within the national territory against all risks in case of accident, illness, maternity, disability, hospitalization, death, or repatriation, for the duration of stay in Colombia.

Colombia's unique blend of natural beauty, cultural richness, and welcoming atmosphere makes it an ideal retirement destination for some retirees. The retiree visa facilitates a smooth transition for foreigners looking to make Colombia their new home, offering benefits such as long-term stay options and the potential for permanent residence.

Digital Nomads in Colombia

The Ministry of Foreign Affairs issued Resolution 5477 on July 22, 2022, which established new provisions on types of visas, application processes, and issuance, among others. One of the main changes to the Colombian immigration regime introduced by Resolution 5477 is the inclusion of the Visitor Visa for Digital Nomads. Since October 21, 2022, the date on which the new immigration regime entered into force, foreigners, whether independently or labor-related, who wish to enter to provide remote work or teleworking services from Colombia through digital media and the internet exclusively for foreign companies, or to start a digital content or information technology venture of interest to the country, may request and obtain a Visitor Visa for Digital Nomads at a Colombian consulate abroad or directly at the Ministry of Foreign Affairs.

Among other requirements, the applicant must demonstrate through bank statements a minimum income equivalent to minimum monthly wages (approximately $1,220 USD) during the last three months, and health insurance with coverage in Colombia against all risks in case of accident, illness, maternity, disability, hospitalization, death, or repatriation, for the planned duration of stay in Colombia.

This multiple-entry visa is valid for up to two years. The authorized period of stay is the same time for which it is granted. It allows beneficiary visas for the spouse, permanent partner, and children of the holder. The holder of this visa may not work or carry out any paid activity with a natural or legal person in Colombia. According to Resolution 5477, this visa is apparently only applicable to those foreigners who are exempt from short-stay visas to enter Colombia, such as those listed in Resolution 5488 of 2022.

Similarly, nationals of countries that do not require a short-stay visa may enter without a visa and remain in Colombia with an entry and stay permit granted by Migración Colombia. With this permit, Digital Nomads can stay in the territory for up to 90 days (continuous or discontinuous), extendable for another 90 days as long as the activities they carry out do not generate payments from Colombian companies. Despite the above, it is not certain whether this type of activity can be carried out with a tourist permit (PT), integration and development permit (PID), or permit for other activities (POA), since those currently do not specifically allow this type of activity. Thus, authorization by the competent authorities must be obtained before carrying out digital nomad activities with the aforementioned permits. Possibly a new permit will be created that explicitly authorizes the execution of this type of activity.

United Kingdom: Right-to-Work Checks on BRPs Short-Dated to 31 December 2024

There is an ongoing Home Office transition to eVisas, which means that people with a physical immigration document such as a Biometric Residence Permit (BRP) must apply for an eVisa before the end of 2024. Anyone with a BRP having an expiration date of 31 December 2024 and whose UK visa is valid beyond that date will need to apply. BRP holders will need to register for a UK Visas and Immigration (UKVI) account. The eVisa is the online record of the immigration status contained in the UKVI account.

In relation to right-to-work checks on employees with a BRP short-dated to 31 December 2024, the new guidance confirms the following:

• Online check. Where an employer has carried out an online right-to-work check on a BRP, they will have seen the expiration date of the visa itself, rather than the short-dated 31 December 2024 BRP expiration date. In this situation, no immediate action is required. The usual repeat check can be made before the visa expires.
• Manual original document check. Before April 6, 2022, employers could carry out a manual right-to-work check on an original BRP. Where the employer has carried out such a check and recorded 31 December 2024 as the right-to-work expiration date, the guidance says that a "follow-up check"—an online right-to-work check — will be required before the end of the year.

Repeat Right-to-Work Checks Not Required on Employees With Pre-Settled Status

A 2023 High Court judgment covered issues relating to EU citizens who have applied for the EU Settlement Scheme for pre-settled status (when they have not yet lived in the UK for five years) or settled status (when they have been living in the UK for five years). The judgment established that, in accordance with the Withdrawal Agreement when the UK left the EU, pre-settled status holders do not lose their right to residency if they fail to make a settled status application before the expiration of their pre-settled status.

As a result of the judgment, the Home Office guidance on right-to-work checks was finally updated as follows:

• No right-to-work expiration date for holders of pre-settled status. Employees with pre-settled status are no longer considered to have an expiration date for their right to work.

No repeat right-to-work checks. Employers do not need to carry out a repeat right-to-work check on employees with pre-settled status. This puts them in the same position as employees with settled status and means employers only need to check the employee's right to work once—before the employment starts.

Italy Launches Digital Nomad Visa to Attract Remote Workers

Italy has officially launched a new visa designed specifically for digital nomads and remote workers, enhancing its appeal as a prime destination for remote workers. Announced in early 2024, the Digital Nomad Visa reflects Italy's growing commitment to attracting skilled professionals who can contribute to its economy while enjoying its rich cultural and historical landscape.

The Digital Nomad Visa aims to facilitate the relocation of remote workers who wish to live in Italy while continuing their professional activities for overseas employers. This initiative is part of Italy's broader strategy to boost its attractiveness as a hub for international talent, aligning with similar programs introduced by other countries in recent years.

To qualify for the visa, applicants must demonstrate a stable income from a remote job or freelance work that is not tied to an Italian employer. The visa requires proof of sufficient financial resources to support oneself during the stay in Italy, alongside valid health insurance coverage. Additionally, candidates must provide evidence of a clean criminal record and undergo a thorough vetting process to ensure compliance with Italian regulations.

The visa is available for up to two years, with the possibility of renewal. This offers remote workers the flexibility to immerse themselves in Italian life while maintaining their current professional engagements. The application process involves submitting documentation to Italian consulates or embassies and may require additional background checks and interviews.

One of the notable features of Italy's Digital Nomad Visa is its potential to attract not only technology professionals but also individuals from a variety of sectors, fostering a diverse international community. The visa's goal is to bolster Italy's local economy by encouraging spending in businesses and contributing to the cultural exchange.

This initiative is poised to enhance Italy's competitiveness in the global market for digital nomad visas, which has seen a rise in digital nomad visa programs since the pandemic. By offering a stable and welcoming environment for remote work, Italy is positioning itself as a leading destination for professionals seeking to balance their careers with a vibrant lifestyle.

The launch of the Digital Nomad Visa aligns with broader trends observed in the European Union and beyond (see our overview of programs in the APAC region), where countries are increasingly recognizing the benefits of attracting remote workers. As remote work continues to grow in popularity, Italy's new visa is expected to attract a significant number of applicants eager to experience life in one of Europe's most captivating countries. By offering an extended stay and a structured application process, Italy is set to become a key player in the competitive field of remote work visas, appealing to professionals from around the world who wish to combine their work with the charm and culture of Italy.

Details:

• Digital Nomad / Remote Work VISA on Italy's Consular Website

Klasko News

FIRM NEWS

Klasko partners Ron Klasko, Bill Stock, and Elise Fialkowski are recognized in the 31st edition of The Best Lawyers in America©. Klasko attorneys Anu Nair, Michele Madera, Karuna Simbeck, Maria Mihaylova, and Natalia Gouz were recognized in the 2025 Edition of Best Lawyers: Ones to Watch. Congratulations to them all!

RANKINGS/AWARDS

H. Ronald Klasko | William Stock | Elise Fialkowski
Ron Klasko, Bill Stock, and Elise Fialkowski were selected for the 31st edition of The Best Lawyers in America© in the area of immigration law. Congratulations to Ron, Bill, and Elise for this achievement.

Anu Nair | Michele Madera | Karuna Simbeck | Maria Mihaylova | Natalia Gouz
Anu Nair, Michele Madera, Karuna Simbeck, Maria Mihaylova, and Natalia Gouz have been recognized in the 2025 Edition of Best Lawyers: Ones to Watch for their outstanding professional excellence in immigration law. Congratulations to Natalia, Michele, Maria, Anu, and Karuna!

ICYMI: RECENT BLOG POSTS AND ALERTS

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FIRM FEATURE

Klasko Immigration Law Partners is celebrating its 20^th anniversary! Follow us @klaskoimmigrationlaw for continuous staff features of our honorary team.

To view the full article please click here.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.