June 2023 U.S. Immigration Alert

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1.  Submission Deadline for FY2024 H-1B Cap Petitions

Employers should be reminded that the deadline to file a cap-subject petition for selected H-1B registrations is June 30, 2023. The Department of Labor (DOL) generally reviews Labor Condition Applications (LCAs) within seven (7) days. Thus, to ensure a timely filing of the H-1B petitions, LCAs must be submitted no later than June 21, 2023.

2.  I-9 Flexibilities Are Winding Down

U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced the official sunset date for COVID-19 related Form I-9 physical inspection flexibilities is July 31, 2023. Additionally, ICE advised that employers have 30 days, or until August 30, 2023, to complete an in-person verification of all employees that were virtually verified since March 2020.

Thus, employers should carefully – and quickly – create a project plan to perform an in-person verification of Form I-9 for employees that submitted their documents electronically during the COVID-19 pandemic. There are significant considerations in completing in-person verifications, which are outlined in the aforementioned article, and employers should discuss how to proceed with their immigration counsel.

3.  Case Submission for the Form ETA 9089 for PERM in Foreign Labor Application Gateway (FLAG) Starts on June 1, 2023

Starting June 1, 2023, the Office of Foreign Labor Certification (OFLC) must accept applications for permanent employment certification and CW-1 applications for temporary employment certification via the FLAG system. OFLC stopped accepting applications in the legacy PERM Online system on May 31, 2023. Applications by mail with a postmark date on or before May 31, 2023 will be accepted if prepared in the legacy system. OFLC noted that for users who have pending applications in the legacy PERM Online System, they can still upload responsive documents to an Audit request or request for information, withdraw applications, request reconsideration or appeal, and use the Help Desk Inquiry system as normal.

The new Form ETA 9089 in FLAG includes not only a new format, but also several new questions for employers to answer. For example, employers must now specify the number of employees on the employer’s payroll in the geographic area of intended employment for the offered position, as well as answer if the employer offers bonuses, fringe benefits, subsidized housing or meals, or any other benefits associated with the job opportunity. Due to these new questions and the complexity of the revised Form ETA 9089, employers should work closely with their immigration counsel to understand these new questions and how to properly answer them.

4.  U.S. Department of State (DOS) Delays Visa Fees Increase for Certain Visa Categories until June 17, 2023

In March 2023, DOS published a final rule regarding increases to certain visa application processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over.  The new fees were slated to take effect on May 30, 2023. On May 26, 2023, DOS announced that the following changes will become effective as of June 17, 2023.

• The application processing fee for non-petition based nonimmigrant visa applications (except E category) will be raised from $160 to $185 (15.6% increase).
• The application processing fee for H, L, O, P, Q, and R categories will be raised from $190 to $205 (7.9% increase).
• The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185 (15.6 % increase).
• The fee for E category visa applications will be raised from $205 to $315 (53.7% increase).

5.  DOS Adopts New Technology for Administrative Processing

DOS announced that it implemented new technology and enhanced coordination to reduce the number of visa applications that require administrative processing on security grounds. According to DOS, since October 2022, most cases that would have previously required additional administrative processing were resolved without any additional processes and delays. 

6.  COVID-19 Vaccination Requirement Updates

As of May 12, 2023, nonimmigrants entering the U.S. no longer need to be vaccinated against COVID-19. However, applicants filing an Adjustment of Status application or an immigrant visa at a U.S. Consulate/Embassy abroad must continue to be vaccinated against COVID-19, consistent with the CDC’s guidance:

• The applicant must receive one dose of the COVID-19 vaccine if a dose is due at the time of the exam according to current CDC guidance. Additional doses are no longer required. Applicants do not have to postpone completion of the exam to complete the primary series of the COVID-19 vaccine.
• Applicants who have completed any approved primary COVID-19 series prior to the exam require no additional COVID-19 doses for immigration. Those who have not should receive a bivalent vaccine.
• Applicants who have received one or more doses but have not completed the primary series and are not yet due for the next dose in the series at the time of the exam should use the “Insufficient time interval between doses” blanket waiver.
• Additional doses recommended for older age groups, health conditions or immunocompromised are not required for completion of this exam.

7.  DHS and Department of Justice (DOJ) Publish the Circumvention of Lawful Pathways Rule

 As the COVID-19 Public Health Emergency has expired, the CDC lifted its Title 42 Order, on May 16, 2023. DHS and DOJ subsequently published a final rule (the “Circumvention of Lawful Pathways Rule”), which introduces a rebuttable presumption of asylum ineligibility for certain noncitizens who do not avail themselves of a lawful, safe, and orderly pathway to the United States by seeking asylum or other protection in a country through which they travel. The rule applies to noncitizens who “enter the United States from Mexico at the southwest land border or adjacent coastal borders without documents sufficient for lawful admission” from May 11, 2023 to May 11, 2025. This rule clarifies that the lawful pathways condition on eligibility shall apply to “any asylum application” that is filed by a covered noncitizen “regardless of when the application is filed and adjudicated.” This Final Rule is in its 30-day comment period. Individuals can submit comments on or before June 15, 2023 (EST) at the end of that day. Comments can be submitted here.

8.  USCIS Updates Review Process for the Parole Programs for Cubans, Haitians, Nicaraguans, and Venezuelans

Due to the humanitarian crises in Cuba, Haiti, Nicaragua, and Venezuela, USCIS is granting advance parole for up to 30,000 noncitizens of these countries each month to come to the United States. According to USCIS, it is updating its review process because the number of applications is significantly higher than the available 30,000 travel authorizations. Under the new review process, which went into effect on May 17, 2023, USCIS will select approximately half of the monthly quota randomly, regardless of filing date, out of the pending Form I-134As; and it will review the other half of the monthly total under the first-in, first-out method.

Seyfarth will offer more details and insights once more information is available.  Please contact the author or your Seyfarth attorney if you have any questions.