October 2023 U.S. Immigration Alert

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

1. Government Shutdown Avoided – For Now

On September 30, 2023, Congress passed a stopgap bill to keep the government running for another 45 days. For more information on potential impacts if the government were to shutdown, please see our legal alert--Potential Government Shutdown: Immigration Consequences for Employers and their Foreign Employees—here.

2. U.S. Citizenship and Immigration Services (USCIS) Exempts the Form I-539, Application to Extend/Change Nonimmigrant Status, Biometric Services Fee for All Applicants

On September 25, 2023, USCIS announced the exemption of the $85 biometric services fee for all I-539 applications as of October 1, 2023. Applicants do not need to pay the $85 biometric services fee if their I-539 application is postmarked October 1, 2023 or later. USCIS noted that most applicants who file their I-539 applications on or after October 1 will not be scheduled to attend a biometric services appointment. However, if USCIS issues a biometric services appointment notice, applicants should attend their scheduled appointment on time. If applicants submit the biometric service fees by mistake, USCIS will return the fees. It is important to note that USCIS will reject the entire I-539 filing if an applicant combines the I-539 filling fee with the biometric service fee, unless the payment is made by a credit card, in which case USCIS will accept the I-539 filing and only charge the filing fee for the I-539 application.

3. USCIS Extends Validity Period for Certain Employment Authorization Documentation

USCIS issued policy guidance to extend validity periods for certain Employment Authorization Documents (EADs, Form I-766):

• For individuals who were admitted as refugees, granted asylum, and granted withholding of deportation or removal, the maximum validity period for initial and renewal EADs will be extended from 2 years to 5 years.
• For individuals who have pending applications for asylum or withholding of removal and pending applications for adjustment of status under Section 245 of the INA, the maximum validity period for initial and renewal EADs will be extended from 2 years to 5 years.
• For individuals who have pending applications for suspension of deportation or cancellation of removal, the maximum validity period for initial and renewal EADs will be extended from 1 year to 5 years.
• For individuals who were paroled as refugees, the maximum validity period for initial and renewal EADs will be extended from 1 year to the end date of the authorized parole period, not to exceed 5 years.

4. The 540-Day Automatic Extension Rule Ends on October 26, 2023

On May 3, 2022, USCIS announced a Temporary Final Rule (TFR) increasing the automatic extension period for certain Employment Authorization Documents (EADs) renewal applications to up to 540 days. The TFR will end on October 26, 2023. Eligible applicants should file before October 26, 2023 to receive the 540-day extension. Eligible applicants who file their EAD renewal applications after this date will receive an automatic 180-day extension on their work authorization.   

5. Israel is Designated Under the Visa Waiver Program (VWP)

Effective November 30, 2023, Israel joins the list of approved countries whose eligible nationals can travel to the U.S. without obtaining a non-immigrant visa for business or pleasure under the VWP.  Entrants under the VWP are generally permitted to stay in the U.S. for up to 90 days.  Eligible individuals cannot work in the U.S. and must obtain ESTA before attempting admission to the U.S.  More information about the VWP can be found here.

6. The Student and Exchange Visitor Program (SEVP) Removes Wet Signature Requirement

On September 18, 2023, SEVP updated the Form I-983, Training Plan for STEM OPT Students, to remove language requiring wet signatures. SEVP now accepts physical signatures or electronic signatures in the following formats:

• Electronic signatures produced by software programs or applications.
• Electronically reproduced copy of a wet signature.

Additionally, SEVP noted that students no longer need to present Form I-983 to their designated school official (DSO). They may send electronically via email or through a secure platform.

7. U.S. District Court Rules Deferred Action for Childhood Arrivals (DACA) Program Unlawful

On September 13, 2023, the U.S. District Court for the Southern District of Texas again found the Deferred Action for Childhood Arrivals (DACA) Final Rule unlawful. USCIS issued an update stating that:

• Current grants of DACA and DACA Employment Authorization Documents (EADs) remain valid until they expire, unless otherwise terminated.
• USCIS will continue to process DACA and DACA EAD renewal applications.
• For initial DACA and DACA EAD applications, USCIS will accept, but not process and adjudicate them.

This decision will likely be appealed to the Fifth Circuit and ultimately reach the Supreme Court.

8. Extension and Redesignation of Venezuela for Temporary Protected Status (TPS)

On September 20, 2023, Secretary of Homeland Security Alejandro N. Mayorkas announced the extension and redesignation of Venezuela for Temporary Protected Status (TPS) for 18 months. Venezuelan nationals who arrived in the United States after July 31, 2023 are not eligible for TPS. Eligible individuals who do not currently have TPS may submit an I-821 Application from October 3, 2023 through April 2, 2025. Applicants may file their I-765 applications together with their I-821 application, or separately at a later date.

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