DOS Announces Pilot Stateside Visa Renewal Program for Certain H-1B Applicants Begins
January 29
DOS announced a pilot program to permit stateside visa renewal for qualified H-1B nonimmigrant visa applicants who meet certain requirements. For starters, the H-1B visa must have previously been issued at a consular office in Canada or India during specific periods. The pilot program also lasts only for a very specific, finite period: 1/29/24 to 4/1/24. The announcement includes a number of other conditions and limitations on whom within this class of applicants can apply. For example, the applicant must be eligible
for an in-person interview waiver, must not have a “clearance received” annotation on their visa stamp, and must have previously submitted ten fingerprints to the State Department. The announcement makes clear that H-4 dependents are not eligible for stateside visa renewals.
The resumption of even limited visa renewals in the United States is welcome news. Until 2004, the Department of State routinely renewed nonimmigrant visas for all classifications but that was discontinued in the wake of 9/11 legislation that, in this circumstance, required that U.S. visas include biometric identifiers. Because the State Department did not possess the capacity to collect fingerprints in the U.S., all but diplomatic nonimmigrant visas were required to be processed abroad at embassies or consulates. We hope this program is extended after the pilot period and is extended to other nonimmigrant visa holders.
What Biden’s Executive Order on Artificial Intelligence Means for Foreign Workers
On October 30, 2023, President Biden issued an Executive Order (EO) addressing the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The order signals that the administration understands the inevitability of AI and is committed to fostering a safe and productive industry. As part of the Executive Order, the President addressed the role that highly skilled immigrant workers play in the future of AI.
In section 5 of the EO, the President provided several directives that aim to retain and attract foreign talent by decreasing immigration hurdles for AI experts, such as decreasing processing times and increasing the availability of visa appointments. The directives also place an emphasis on adjusting existing policies to allow current visa holders working in the field of AI to remain in the United States without interruption.
The EO specifically mentions the J-1, F-1 (specifically STEM students), O-1A, EB-1/EB-2, and H-1B visa categories, but only provides general recommendations for improvement and does not create any specific new paths to or opportunities for immigration. Depending on how USCIS responds to the EO, those working in AI could find it much easier to renew, transfer, or maintain their status. For example, workers and employers in the field of AI could find it much easier to obtain a National Interest Waiver or make a showing that an expert in AI possesses extraordinary ability.
Record Numbers of Migrants Apprehended at the Southern Border
According to U.S. Customs and Border Protection, and continuing a recent trend, there were 233,740 migrants apprehended along the U.S. southern border in November. This represents a 1 percent increase from October’s record-breaking apprehensions and marked the highest ever number of border crossings recorded for the month of November. Among these apprehensions, there were 204,000 “unique” (or new) encounters and 35 percent (approximately 68,000) were from Cuba and Nicaragua. The number of unique encounters alone is nearly two times the total number of encounters from the previous year at 174,845. The drastic increase in unauthorized entries and apprehensions has increased immigration court backlogs to record levels and has placed immense political pressure on the Biden Administration. According to recent polling data, the President’s approval rating on immigration has dropped eight points from last month to a dismal 38 percent.
Biden Administration Resumes Construction of Border Wall
On October 5, 2023, the Department of Homeland Security (DHS) released a Notice of Determination titled, “Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, As Amended.” In the Notice, DHS Secretary Mayorkas declared that reconstruction of the border wall along the international land border in Starr County, Texas, would begin expeditiously. In fact, the current Administration waived 26 federal laws in South Texas to allow for the reconstruction. This generally departs from the Biden Administration’s prior policy on the border wall. The South Texas region is of grave concern to DHS, as it is a region known for its heavy migration traffic. In August 2023 alone, the U.S. Border Patrol encountered 245,000 undocumented entries. DHS is attempting to slow unauthorized migration, noting that “[t]here is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States.”
Settlement Agreement Reached for Trump-Era Separated Families
On October 16, 2023, the United States reached a settlement in a class action lawsuit filed in 2018 on behalf of parents and children separated at the U.S.-Mexico border. Under the proposed court settlement, the federal government would be barred for eight years from implementing “zero tolerance” immigration policies which previously separated thousands of parents from children. In 2018, the lead plaintiff filed a complaint in the Southern District of California, asserting she had been unlawfully separated from her child. The American Civil Liberties Union (ACLU) later filed an amended complaint adding class action claims, stating the separation of families was a violation of the asylum statute and a violation of substantive and procedural due process. The district court subsequently certified a class of separated parents and issued a preliminary injunction prohibiting future family separations, except
in certain specified circumstances. The court also required the reunification of families previously separated.
The settlement also provides for continued family reunification and certain support services for separated families, including housing assistance for up to a year, certain medical coverage designed to address some of the trauma associated with the separations, and access to legal services. The proposed settlement would allow authorization for parents and separated children to come to the United States under humanitarian parole for three years. The settlement does not involve the payment of monetary damages. Those who believe they are class members may submit claims of class membership to the Family Reunification Task
Force through the together.gov website. The proposed settlement agreement is subject to final approval by the district court after notice to the class and an opportunity to object.
USCIS Changes Procedure for Filing for Asylum After Termination of Immigration Court Proceedings
On October 16, 2023, U.S. Citizenship and Immigration Services (USCIS) issued new instructions for asylum applications submitted after court dismissal or termination of an applicant’s removal proceedings. If a respondent’s removal proceedings are dismissed or terminated and they choose to apply (or re-apply) for asylum with USCIS, they must file a new paper Form I-589, Application for Asylum and Withholding of Removal, with the USCIS Lockbox that has jurisdiction over their place of residence.
Applicants who already had a pending asylum application in immigration court should include updated information regarding their biographic details and asylum claim in their new application. In addition, USCIS recommends that an asylum applicant include (1) proof that the immigration court dismissed or terminated an applicant’s removal proceedings (such as the Immigration Judge’s Order of Dismissal) and (2) proof that the applicant had a pending I-589 application when the court dismissed or terminated their
removal proceedings (such as the I-589 receipt notice). If an applicant can demonstrate he or she had a pending I-589 while in immigration court proceedings, USCIS will preserve the applicant’s original I-589 receipt date. USCIS will then use the original filing date to determine the one-year filing deadline, employment authorization eligibility based on the pending asylum application, eligibility for child dependent applicants, and asylum interview scheduling priority.
Note: If an applicant originally filed an I-589 Application for Asylum with USCIS and the Asylum Office referred the asylum application to immigration court, where it remained pending until the removal proceedings were dismissed, USCIS will accept the form with the intent to issue the applicant a new discretionary Notice to Appear (NTA). With the issuance of a new NTA, an applicant will be sent back to immigration court proceedings if USCIS had originally referred their asylum case to court. On the one hand, the benefits for re-applying for asylum are clear. After dismissal, a foreign national is no longer in court proceedings and is no longer in immediate risk of removal from the United States. The dismissal and new asylum application allows the foreign national more time to remain in the United States, safe from the harm they fear upon return to their home country. In addition, adjudicating one’s asylum claim with USCIS’s Asylum Office represents a less adversarial setting than immigration court. With USCIS, applicants present their case to an asylum officer in an interview setting, whereas in immigration court, applicants present their claim to a judge and government attorney, where they are subject to a higher level of scrutiny and interrogation. Lastly, reapplying for asylum allows a foreign national to obtain or renew work authorization in the United States.
However, for some asylum applicants, re-applying for asylum after dismissal may be risky, as they can end up right back in immigration court proceedings. This is especially true in the case of those whose asylum applications were originally referred to immigration court. Therefore, for those with a strong asylum claim, it may be more beneficial to go forward with their claim in court, rather than delaying the process. While Asylum Offices have a statutory duty to schedule an asylum interview within 45 days of the initial filing, asylum applicants are currently waiting years to be scheduled for an asylum interview. The decision as to whether to have immigration proceedings dismissed and applying for asylum is not one that should be taken lightly. Therefore, if you are considering applying for asylum, whether in or out of immigration proceedings, it is important to consult with a qualified immigration attorney to assess your asylum claim and review your legal options to determine what works best in your case.
Alien Smuggling: A Pitfall on the Pathway to Lawful Permanent Residence
Alien smuggling is a ground of inadmissibility that is often overlooked when applying for admission, seeking adjustment of status, or applying for a provisional waiver. U.S. immigration law (INA §212(a)(6) (E)) states “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” One might first think that this ground of inadmissibility applies only to professional smugglers or “coyotes,” but it would be a mistake to apply such a narrow interpretation. The alien smuggling ground of inadmissibility can be triggered in various manners and applies to a broad range of conduct. This can include those crossing the border with family, helping plan a trip for someone to enter the United States unlawfully, and sending money to assist an individual entering unlawfully. A mother who crosses the border illegally with her child has committed alien smuggling, as has an individual who gives a person money knowing that it will be used to enter the U.S. unlawfully. In some circumstances, alien smuggling can include aiding a person shortly after they have unlawfully crossed the border. The assistance provided must have been provided with knowledge that the person was entering unlawfully to constitute alien smuggling. A waiver of this ground of inadmissibility is available in limited circumstances. The individual seeking the waiver must be a lawful permanent resident returning after temporary foreign travel or an individual seeking immigrant status via an immediate relative petition or a family-based first-, second-, or third-preference petition. The waiver is not available to family-based fourth preference or employment based immigrant visa applicants. One must have only smuggled their spouse, parent, son, or daughter to qualify for the waiver.
As such, an uncle who smuggled his nephew would not be eligible for such a waiver. The waiver can be granted for humanitarian reasons, to assure family unity, or when it is in the public interest. Many times, an individual will not realize that they are subject to this ground of inadmissibility until questioned by an immigration or consular officer. Not being aware of such could have especially dire consequences for those seeking a provisional waiver. If an immigrant visa applicant is granted a provisional waiver, departs the country to complete consular processing, and is then found to be subject to the alien smuggling ground of inadmissibility, their provisional waiver will be cancelled, and they will need to remain outside the United States until they can obtain a waiver for such. If they are not eligible for the smuggling waiver, they will remain permanently inadmissible.
Family Reunification for Ecuadorians
Recently, DHS announced a Family Reunification Parole Process for Ecuador . This parole process applies to certain Ecuadorian nationals who are beneficiaries of an approved I-130 petition. To apply for this process, the petitioner of an approved I-130 must first receive an invitation from the Department of State. The petitioner can then file an application to be a supporter for the I-130 beneficiary and qualifying family members. USCIS states that individuals will be considered on a case-by-case basis with humanitarian and significant public benefit reasons in mind. Individuals can be paroled for up to three years under this process and can request employment authorization.
News in Brief
- Immigration Court Backlog Tops Three Million: As of December 18, 2023, the immigration court backlog has topped three million despite hiring more immigration judges and accelerating more case closures. Currently, the average caseload per immigration judge is 4,500.
- U.S. Customs and Border Protection (CBP) Issues Record Level Notices to Appear: 280,000 in the first 10 months of FY 2023 and nearly 45,000 in July 2023 alone.
- Additional H-2B Visas for FY2024: On November 17, 2023, USCIS and the Department of Labor published a temporary rule making available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2024, on top of the statutory cap of 66,000 H-2B visas that are available each fiscal year.