Immigration

President Donald Trump has swiftly signed several immigration-related executive orders and implemented other immigration initiatives since his inauguration.  These executive orders and policy changes have the stated intent to further the President’s policy objectives of deploying “the largest domestic deportation operation in American history” and targeting undocumented immigrants.  Their reach is vast and varied, including pausing refugee resettlement to those who had been vetted and approved; ending humanitarian parole that had temporarily allowed over 500,000 migrants from Cuba, Haiti, Venezuela and Nicaragua to enter and work in the U.S.; and launching efforts to find, apprehend and remove millions of unauthorized immigrants.  However, their impact extends beyond these groups and have significant implications in the workplace.  Employers need to prepare and establish practices and procedures to prepare for government raids, enforcement actions, regulatory changes and compliance challenges. 

Over the past several months, the Department of State (DOS) and Department of Homeland Security (DHS) have announced additional backlogs in the permanent residence (Green Card) quota system.  These additional backlogs have forced employers and their foreign national employees to adjust strategy in applying for permanent residence, and in maintaining lawful status and employment authorization in the U.S.

A number of attorneys and employers have reported issues in accessing the USCIS online H-1B cap registration system at https://my.uscis.gov/.  Most recently, a number of company representatives have been unable to access their cases, as the system is not accepting the employer’s unique passcode review and verify H-1B registrations.  The American Immigration Lawyers Association (AILA) has received a number of reports that H-1B Registrant, Attorney and Employer accounts are not functioning past the login section.

In August 2022, the U.S. State Department introduced a pilot program to allow eligible applicants to renew U.S. passports online. Over 25,000 applications were submitted within the first two weeks of the online system. Given its success, the State Department opened two additional rounds of online applications in September and November 2022. Although an exact date has not been announced, the State Department has stated that it intends to implement a permanent launch in the first quarter of 2023.

In anticipation of this new system, the State Department has established the eligibility criteria and process for renewing a U.S. passport online.

The U.S. State Department recently updated its visa reciprocity schedule for citizens of Mexico, and now provides two visa validity period options for TN visa applicants. Mexican citizens may request a 48-month TN visa validity period by paying a visa reciprocity fee of $382. Alternatively, they can request a 12-month TN visa validity period by paying a reciprocity fee of $104. This option also applies to TD visa applicants (the dependents of TN visa holders). The visa reciprocity fees are in addition to the $160 visa application fee (MRV fee). The visa reciprocity fee is only charged if the visa is approved. Below is a summary of the effect of the new four-year visa option. 

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have announced yet another extension to flexibility relating to in-person Form I-9 compliance. The policy, which was originally announced on March 19, 2020, was previously set to expire on October 31, 2022. With this new extension, the policy will remain in effect until July 31, 2023.

The Department of Homeland Security is seeking public comment on its proposed changes to I-9 document examination requirements, including one which would create a framework allowing DHS to pilot or implement permanent alternatives to in-person I-9 document examination requirements.

On December 15, 2021, USCIS and ICE announced they again extended flexibility relating to in-person Form I-9 compliance. This flexibility allows employers whose entire workforce is working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act. In addition, it applies to employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions.

The U.S. Department of Justice (“DOJ”) Office of Public Affairs issued a press release two days ago, October 19, 2021, announcing a settlement with Facebook involving their recruiting practices to qualify foreign nationals for permanent residence (green card) status in the U.S. This settlement involves a civil fine of $4.75 million payable to the U.S. government, plus an additional payment of up to $9.5 million to eligible victims. This settlement ends a lawsuit filed by DOJ against Facebook in December of 2020.

On Thursday, July 29, 2021, U.S. Citizenship and Immigration Services (USCIS) announced the results of a second H-1B cap lottery. The agency selected an additional number of H-1B registrations from the original submissions, which occurred during the registration period from March 9 to March 25, 2021.

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced they would again extend flexibility relating to in-person Form I-9 compliance.

U.S. Citizenship and Immigration Services (USCIS) will be suspending biometric screening requirements for H-4, L-2, E-1, E-2, and E-3 dependent visa holders for two years beginning May 17, 2021.

Although no official announcement was made, U.S. Customs and Border Protection (CBP) is now recommending that Canadian TN and L applicants schedule an appointment to present their applications when entering the United States at a Buffalo area border crossing.

On October 5, 2020, U.S. Citizenship and Immigration Services (“USCIS”) announced a 10 federal government working day period in which employers will need to take action within E-Verify on Tentative Non-confirmations (“TNCs”) by either referring the case to the Social Security Administration and/or the U.S. Department of Homeland Security (DHS) or closing the case.

On his first day in office, President Joseph Biden sought to end a series of discriminatory travel bans set forth by the previous administration. President Biden focused his initial presidential actions on returning to this country’s tolerant and welcoming principles and values, the traditional American sentiment laid out in the inscription on the Statue of Liberty itself.

On December 15, 2020, United States Citizenship and Immigration Services (USCIS) announced that it is still experiencing delays in issuing receipt notices for filed petitions and applications.