What's New in the World of US Immigration?

Redesign of Green Cards and Employment Authorization Documents (EADs)

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today new designs to improve security of Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents (EADs). USCIS will begin issuing the redesigned cards on Jan. 30, 2023.

The new Green Card and EAD designs contain state-of-the-art technology that continue to safeguard national security and improve service for our customers. Changes include:

  • improved detailed artwork; 
  • tactile printing that is better integrated with the artwork; 
  • enhanced optically variable ink; 
  • highly secure holographic images on the front and back of the cards; 
  • a layer-reveal feature with a partial window on the back photo box; 
  • and data fields displayed in different places than on previous versions.

"This redesign further demonstrates USCIS’ commitment to taking a proactive approach against the threat of secure document tampering, counterfeiting, and fraud,” said USCIS Director Ur M. Jaddou. “Consistent updates to secure documents, informed by our knowledge of the latest methods of bad actors and the innovation and ingenuity of our staff, ensure the continued integrity of secure documents issued by our agency.”

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Biden Administration Expands Legal Pathways with Parole Strategy but Deeply Erodes U.S. Commitment to Asylum Protection

Washington, DC – The American Immigration Lawyers Association (AILA) responded to the announcement from President Biden today expanding Title 42 and humanitarian parole programs for migrants from Nicaragua, Cuba, and Haiti. The program is modeled after the Venezuela Parole Program announced in October and provides a legal pathway for some migrants from these three countries, provided they fulfill the program’s requirements, including having a U.S. sponsor. However, the announcement includes several measures that severely restrict asylum access including expansion of the Title 42 ban on asylum seekers from these countries at the border and a new version of the third-country transit ban on asylum seekers will be forthcoming in a proposed rule.

AILA President Jeremy McKinney stated, “This announcement expands the creative use of legal pathways, such as parole, to manage increased migration at the Southern U.S. border from Venezuela, Nicaragua, Cuba, and Haiti. However, the unavoidable truth is that the Biden Administration is greatly eroding the United States’ commitment to protecting asylum seekers by the continued use of the Title 42 ban. Moreover, the administration indicated a new proposed rule that sounds like another Trump policy, the transit ban, which will block asylum by requiring people to first apply in countries that they traveled through. The new parole program should be implemented in addition to access to asylum at the southern border and not erode access to asylum.”

AILA Executive Director Benjamin Johnson added, “The expansion of parole is an important legal pathway authorized by Congress that President Biden is smart to utilize. However, this positive step is clouded by the administration’s expansion of Title 42, the transit ban, and expedited removal. These measures will inevitably deny legitimate asylum seekers access to a fair and meaningful opportunity to seek protection from persecution." AILA supports efforts to manage border migration efficiently and in an orderly manner, but speed can never be allowed to overtake fairness or humane treatment. Furthermore, these efforts are made in vain if the infrastructure and capacity needed to carry them out are lacking. Only Congress can provide the resources necessary to ensure that access to asylum is equitable and not just available to a small number of those who seek it.

AILA Doc. No. 23010504.

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AILA Practice Pointed on the New Public Charge Rule

Introduction

On September 9, 2022, the Department of Homeland Security (DHS) issued the final rule, pursuant to Immigration and Nationality Act (INA) §212(a)(4), with respect to the public charge ground of inadmissibility.2 The final rule is effective December 23, 2022, and will apply to lawful permanent resident applications postmarked (or electronically submitted) on or after this date.

The final rule amends 8 CFR Parts 103, 212, 213, and 245 and enshrines much of what had been established policy under legacy Immigration and Naturalization Service3 1999 Interim Field Guidance. However, there are several critical changes, discussed below, that may change the practice and adjudication of public charge issues.

The new rule provides definitional and procedural guidance to assist USCIS adjudicators in properly evaluating whether a person is likely to become a public charge and, importantly, expressly clarifies that it does not apply to nonimmigrants. As announced in the final rule, USCIS will issue a revised Form I-485, Application to Register Permanent Residence or Adjust Status, to collect additional information, including questions related to the public charge statutory factors and amended Policy Manual guidance.4 However, during a recent public stakeholder engagement on September 29, 2022, USCIS noted that the agency would require no new initial evidence in most cases,5 and that USCIS “will consider any evidence a noncitizen chooses to submit regarding the factor(s).”6

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Reminder: New I-485 Effective Tomorrow, December 23, 2022

The CIS Ombudsman’s Office issued a reminder that starting tomorrow, December 23, 2022, the new edition of Form I-485, Application to Register Permanent Residence or Adjust Status, must be used. As with most other historical form changes, in this instance there will be no grace period. The new edition collects certain information required by the new public charge rule, which also takes effect tomorrow, December 23, 2022. For more information on the new rule, see AILA’s practice pointer.

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Title 42 Extended Last Minute before Expiration in 2 Days

Supreme Court Chief Justice John Roberts on Monday has temporarily extended Title 42, which was scheduled to lift on Wednesday, in an emergency action following appeal by 19 states.

Justice Roberts' brief order did not discuss the merits of the case, but instead delays expiration in order to allow full consideration of the states' appeal in light fast approaching deadline for Title 42 to end.

Roberts ordered responses to his order to be filed by Tuesday.

The states had asked the Supreme Court to intervene and keep Title 42 in place -- contending that not doing so "will cause a crisis of unprecedented proportions at the border."

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New Version of I-485 - Public Charge Rule in Effect

USCIS has posted the following important notice regarding Form I-485:

If you file Form I-485, Application to Register Permanent Residence or Adjust Status, on or after Dec. 23, 2022, you must use the 12/23/22 edition of Form I-485 or we will reject your filing. If you file Form I-485 before Dec. 23, 2022, you must use the 07/15/22 edition of Form I-485 or we will reject your filing.

On Sept. 9, 2022, DHS published the Public Charge Ground of Inadmissibility final rule to provide clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. The new final rule will go into effect on Dec. 23, 2022, and requires collection of information in the new 12/23/2022 edition of Form I-485.

Preview versions of the new 12/23/2022 edition of Form I-485 and form instructions were published on Regulations.gov on Sept. 9, 2022. Preview versions of the new Form I-485 and form instructions were also published on uscis.gov on Nov. 23, 2022.

USCIS has published the final 12/23/22 edition of Form I-485 for applicants to prepare their applications in advance of Dec. 23, 2022. DO NOT file the 12/23/22 edition of Form I-485 before Dec. 23, 2022. USCIS will reject any Form I-485 with the edition date of 12/23/22 filed before Dec. 23, 2022.

What to Know About Sending Us Your Form
  • We will reject the 07/15/22 edition of Form I-485 if it is postmarked on or after Dec. 23, 2022.
  • We will reject the 12/23/22 edition of Form I-485 if it is postmarked on or before Dec. 22, 2022.

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What will become of visa holders after last week's massive tech layoffs?

Last week, tech giants Twitter and Facebook enacted massive layoffs totaling thousands of employees in the USA. These unanticipated layoffs have sent shockwaves through employees in the tech industry and their families, who now must scramble to secure new jobs, else face insecurity making house payments and putting food on the table. While layoffs are devastating for all employees and their families, US visa holders, many of whom have been in the United States for several years, suffer the additional hardship of losing status in the USA.

Elon Musk, who acquired Twitter just this year, terminated half of the company's 7,500 employees just one week after closing his blockbuster buyout.  This has left 700 visa dependent employees without a job. In similar fashion, Facebook’s parent company, Meta, laid off 11,000 employees, or nearly 15% of their total workforce, many hundred of which depend on their employment visas to stay in the USA.
Unanticipated and widespread layoffs such as those occurring at Twitter and Meta have serious consequences for these employees whose ability to stay in the country is determined by their employment status. 




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2022 Election Results - Immigration Recap

From Think Immigration, www.thinkimmigration.org

In this year’s midterm elections, immigration featured prominently in races across the country. With many elections still not decided, the most significant result so far is that Republicans are predicted to win the House thereby gaining the power to set the legislative agenda and conduct oversight over the Biden Administration.  Kevin McCarthy, the current House Minority Leader and presumptive Speaker has announced he’ll act on immigration before anything else. “The first thing you’ll see is a bill to control the border first,” he said noting that he will not advance other immigration reforms until the border is secure.  His Republican plan, the “Commitment to America” defines immigration through the lens of national security and border enforcement, which he characterizes as “millions of people who are just walking across, people on the terrorist watch list.” In October, McCarthy ruled out legislation that trades a path to citizenship for  recipients of the Deferred Action for Childhood Arrivals (DACA) program with increased border security, the kind of deal that has often been the starting point for negotiations.  

 An even more fierce immigration restrictionist, Jim Jordan (R-OH), will likely chair the House Judiciary Committee. Jordan has already signaled interest in conducting impeachment hearings against Homeland Security Secretary Ali Mayorkas, who is himself a Cuban immigrant.  Earlier this year, Jordan accused Mayorkas of supporting illegal immigration: “We have a Secretary of Homeland Security who is intentionally, deliberately, in a premeditated fashion…executing a plan to overwhelm our country with millions and millions of illegal migrants.” In addition to impeachment, Jordan will undoubtedly conduct oversight hearings that will disrupt the Biden Administration’s immigration initiatives.  


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Recent Steps to Protect Dreamers

On August 30, 2022, the Biden Administration issued a final regulation codifying the Deferred Action for Childhood Arrivals (DACA) program. (AILA had submitted comments on the September 28, 2021, proposed rule.) AILA welcomed the rule, but also called on Congress to pass legislation permanently protecting all Dreamers, not just those who qualify for DACA under these regulations. The final rule is effective Monday, October 31, 2022, and codifies the existing DACA program and policies with limited changes.

However, a district court in Texas had issued an injunction in July 2021 that prohibits DHS from granting initial DACA requests. As a result, DHS has not been adjudicating any initial DACA applications since that time. On October 5, the Fifth Circuit Court of Appeals remanded an appeal of that 2021 decision back to the district court for further review but kept in place the status quo - that current DACA recipients can renew, but new applications for DACA will not be processed. In remanding the case, the Fifth Circuit held that the 2012 creation of DACA by executive memo was not legal and ordered the district court to address the government's argument based on the new DACA regulation.

On October 14, Judge Hanen issued an order blocking the final regulation from going into effect while he deliberates and until he issues final decision in the case. The order also stated that DHS may continue to accept and grant DACA renewal applications, but that DHS continues to be enjoined from granting DACA status for any new applicants.


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AILA New Policy Recommendations on Immigration

AILA, or American Immigration Lawyers Association, is the preeminent national Immigration Lawyers Association. We, the member lawyers, actively work to propose policy initiatives to improve Immigration Processing, especially in the interest of family unity and priority workers, decrease in private detention, reduce backlogs, and more.

On October 4, 2022, AILA issued a policy brief providing an update on the status of ten recommendations we made in our June 2021 policy brief, as well as additional recommendations the agency can take to reduce both backlogs and delays. 

We made the following recommendations:  

  1. Rescind regional travel bans and replace them with science-based solutions.  
  2. Resume stateside processing of visa renewals. 
  3. Expand visa interview waiver eligibility. 
  4. Automatically extend visas that expired during the COVID-19 pandemic by 24 months. 
  5. Maximize staffing on immigrant visa processing at consular posts. 
  6. Revise regulations to allow virtual immigrant and nonimmigrant visa interviews. 
  7. Leverage U.S.-based consular officers to adjudicate visa applications. 
  8. Admit all U.S. lawful permanent residents (LPRs) returning to the United States from abroad without conducting an abandonment analysis.  
  9. Adopt a policy to automatically extend immigrant visas from 6 months to 18 months, in coordination with CBP. 
  10. Recapture and avoid the loss of unallocated visas. 

Thanks to advocacy from AILA and our members, over the last year, the Biden Administration has implemented multiple recommendations raised by AILA and statistics show that DOS is making headway. Issuance rates for immigrant and nonimmigrant visas have jumped substantially in the last year and the backlog of immigrant visa cases pending the scheduling of an interview has been reduced by 24%. 

These improvements underscore the need for the agency to continue implementing policies that will help it reduce inefficiencies, lessen delays, and address the remaining backlogs that formed during the COVID-19 pandemic.

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USCIS Extends Green Card Validity Extension to 24 Months for Green Card Renewals

US Citizenship and Immigration Services (USCIS) has just announced today that Permanent Resident Cards (Green Cards) will be extended for 24 months (as opposed to 12) after filing a proper I-90 extension. This is great news as USCIS processing times have recently climbed to over a year.

The change became effective September 26. The extensions are automatic after filing the I-90, which is the Application to Replace Permanent Resident Card.  Lawful permanent residents who properly file Form I-90 to renew an expiring or expired Green Card will receive this automatic extension.

Form I-90 receipt notices had previously provided a 12-month extension. This new 24 month extension is expressly listed on the face of the receipt notices. The original expired green card in conjunction with the original I-90 receipt notice can be used to evidence status, including employment and travel authorization; although for travel we also recommend obtaining a travel stamp at a local USCIS Office before departure for a smooth reentry into the USA.

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USCIS Announces that Employment-Based Visas will be used up by End of Sept. 2022

The US Citizenship and Immigration Services (USCIS) has announced that employment-based visas will most likely be used up in within the next month. The visa bulletin is a chart put out by the Department of State each month that provides the current wait times of each type of green card preference category (employment-based, family-based etc).

The September 2022 Visa Bulletin includes language in Section D foreshadowing the possible unavailability of employment-based green card numbers through September 30. Specifically, the Visa Bulletin states that the federal government anticipates that it will issue all remaining employment-based visas that are available for this fiscal year during the month of September.

But is there really an impact on clients? Not really. If this happens, USCIS can approve no further employment-based green card applications until the 2023 government fiscal year, which thankfully begins on October 1, 2022. 


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Biden Administration Moves to Shore Up DACA Protections but Congress Needs to Act

AILA Press Release: AILA Doc. No. 22082454

Washington, D.C.
- Today, the American Immigration Lawyers Association (AILA) and the American Immigration Council (The Council) welcomed newly published regulations that will offer more certainty for the Deferred Action for Childhood Arrivals (DACA) program and represent a positive step toward protecting some Dreamers. It has been more than 10 years since the creation of DACA which offered an opportunity for people brought to the U.S. as children who met certain criteria to apply for temporary protection from deportation.

AILA President Jeremy McKinney said, “A decade ago, we welcomed the announcement of DACA and the protections it offered Dreamers. Today, we are heartened by the efforts by the Biden Administration to preserve and protect the program itself which has been undermined by the Trump Administration and lawsuits from state governors who should know better. These regulations are essential, but laws are for lasting change. We need Congress to pass legislation permanently protecting all Dreamers—not just those who qualify for DACA under these regulations, but also the many others who have lived for years in legal limbo. That is the true solution here.”...

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More Busloads of Migrants Arrive in NY

NEW YORK — More bus loads of migrants reach the Port Authority Bus Terminal in Manhattan, sent by Texas Governor Abbott. Each bus arrival symbolizes the off-scenes battle between New York City government and Texas Officials. 

Texas Governor Greg Abbott began shipping busloads of migrants to democratic cities such as Washington, D.C. and NYC several weeks ago, in what has become a controversial and attention grabbing policy move, motivated by a desire to spread the financial hardship of the rising number of new migrants to "sanctuary cities."

The nonstop 30+ hour bus rides end in Times Square amidst rush hour traffic, letting off exhausted and famished riders. They are welcomed by crowds of charity workers, TV cameras and photographers: "Bienvenidos a todos a Nueva York". 

Some migrants consider New York their final destination, and are happy to have a direct means of arrival, while others claim they've been tricked into coming here by Texas officials. 

The influx of buses is testing New York's commitment to act as a "Safe Haven" for immigrants. Although they receive a cheerful welcome, the truth is that the city support system is increasingly stressed by the numbers of new migrants, and life after departing the bus is tough.  Many are taken in hand by several charity groups, and yet the large majority end up in NYC homeless shelters...

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Investigation reveals how government bureaucracy failed to stop family separations

Many recent news articles report that a recent investigation has uncovered how the Trump Administration was in fact aware that children would be separated from their families... and did nothing to stop it.

NPR offers an interesting 8 minute interview on the investigation and what it revealed, which you can access from the NPR webpage here.

A transcript of that interview is below for your convenience:

ARI SHAPIRO, HOST:

The Trump administration was known for immigration policies that were chaotic and extreme, yet even by that standard, family separation was in its own category. Kids as young as infants were removed from their parents at the border, more than 5,500 children total. Hundreds are still not reunited. Caitlin Dickerson chronicled those policies in real time, first for The New York Times and now for The Atlantic. And her latest cover story for the magazine is an exhaustive investigation into how the family separation policy came about. Caitlin, good to have you back on ALL THINGS CONSIDERED...

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ALERT: USCIS Extends COVID-19-related Flexibilities

USCIS has just issued the following notice, which is good news for our clients!

USCIS Extends COVID-19-related Flexibilities, Release Date : 07/25/2022

U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. Under these flexibilities, USCIS considers a response received within 60 calendar days after the due date set forth in the following requests or notices before taking any action, if the request or notice was issued between March 1, 2020, and Oct. 23, 2022...

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About 100,000 ‘Dreamers’ to graduate without chance of work permits

Around 100,000 undocumented immigrants will graduate high school in 2022 without a shot at work permits, the first time in a decade that a majority of so-called Dreamers will not be eligible. 

Most undocumented 2022 graduates have not been in the country long enough to be covered by Deferred Action for Childhood Arrivals (DACA), the Obama-era policy that was the focus of attacks and litigation during the Trump administration. Immigrants covered by DACA are known as Dreamers...

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FY2023 Cap-Subject H-1B Filing Season

The filing period for H-1B petitions selected for the FY2023 cap opened on April 1, 2022, and will run through June 30, 2022. AILA has received several reports of delays in receipt notice issuance for H-1B petitions filed with the Vermont Service Center, including some petitions filed in early April for which no receipt notice has been issued to date. We have reached out to USCIS about the delays and will update our practice alert as more information becomes available...

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Arizona follows Texas, begins busing migrants from southern border to DC

Arizona began busing migrants from the U.S.-Mexico border to Washington, D.C., this week, joining Texas in a protest over the Biden administration’s policies on immigration and border control.

The first bus arrived in the capital on Wednesday, loaded with 20 migrants who volunteered for the trip, according to the Arizona Daily Star.

Republican Gov. Doug Ducey’s communications director, C.J. Karamargin, told the local news outlet the state will bus as many migrants as needed. And however much the new busing program costs the state, Arizona will push the federal government to pick up the tab...

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Uniting for Ukraine

On April 21, 2022, the United States announced a key step toward fulfilling President Biden’s commitment to welcome Ukrainians fleeing Russia’s invasion. Uniting for Ukraine provides a pathway for Ukrainian citizens and their immediate family members who are outside the United States to come to the United States and stay temporarily in a two-year period of parole. Ukrainians participating in Uniting for Ukraine must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States.

The first step in the Uniting for Ukraine process is for the U.S.-based supporter to file a Form I-134, Declaration of Financial Support, with USCIS. The U.S. government will then vet the supporter to ensure that they are able to financially support the individual whom they agree to support. A supporter may be any individual who holds lawful status in the United States or is a parolee or beneficiary of deferred action or Deferred Enforced Departure (DED) who has passed security and background vetting and demonstrated sufficient financial resources to receive, maintain, and supports the individuals whom they commit to support for the duration of their stay in the United States...

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DHS Press Release: Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months

Release Date: March 3, 2022

WASHINGTON — The Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. 

“Russia’s premeditated and unprovoked attack on Ukraine has resulted in an ongoing war, senseless violence, and Ukrainians forced to seek refuge in other countries,” said Secretary Alejandro N. Mayorkas. “In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.”...

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Private prison business still booming a year after Biden’s executive order

In the year since President Joe Biden signed an executive order to stop the Justice Department from using private prisons, a multibillion-dollar private prison company has found an “opportunity” for new business in detaining and tracking immigrants because of the immigration court backlog that has only been made worse by the covid-19 pandemic, new documents reveal. 

 GEO Group detailed in a previously confidential document that “Border Inflow” creates an “opportunity for GEO” to increase its federal business — with a particular focus on its “electronic monitoring business” — in the wake of the executive order, which has already cost the company contracts worth roughly $125 million. 

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