On this edition, find the most recent news on employee options following termination of employment, the H-2B Nonimmigrant Visa availability increase, the 2023 H-2A hourly opposed effect wage rates and more!
USCIS Provides List of Options for Nonimmigrant Staff Following Termination of Employment
On December 19, 2022, U.S. Citizenship and Immigration Services (USCIS) provided a compilation of options that could be available to nonimmigrant staff looking for to stay in america in a period of authorized stay following termination of employment.
The compilation includes details on:
- A discretionary 60-day grace period that permits staff in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be regarded as having maintained status following the cessation of employment for as much as 60 consecutive calendar days or until the top of the authorized validity period, whichever is shorter.
- Portability to a latest employer, allowing staff currently in H-1B status to start working for a latest employer as soon because the employer properly files a latest H-1B petition with USCIS, without waiting for the petition to be approved. Also, a employee with an adjustment of status application (Form I-485) that has been pending for at the least 180 days with an underlying valid immigrant visa petition (Form I-140) has the flexibility to transfer the underlying immigrant visa petition to a latest offer of employment in the identical or similar occupational classification with the identical or a latest employer (commonly often called “porting”).
Other options include change of status, change of status and employer, adjustment of status, period of authorized stick with a “compelling circumstances” employment authorization document, expedited adjudication criteria, and departure from america and looking for readmission in the identical or one other classification.
Details:
USCIS Increases H-2B Nonimmigrant Visa Availability
In a short lived final rule published on December 15, 2022, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has increased the overall variety of noncitizens who may receive an H-2B nonimmigrant visa by as much as 64,716 for fiscal 12 months (FY) 2023. To “assist U.S. businesses that need staff to start work on different start dates,” the Departments of Homeland Security (DHS) and Labor (DOL) will distribute the supplemental visas in several allocations, including two separate allocations within the second half of FY 2023.
Of the overall 64,716 visas made available, 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, or Haiti. All 64,716 visas can be found only to “those businesses which can be suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a latest attestation form.” Along with making the extra 64,716 visas available under the FY 2023 time-limited authority, DHS is exercising its general H–2B regulatory authority to offer temporary portability flexibility again by allowing H–2B staff who’re already in america to start work immediately after an H–2B petition (supported by a legitimate temporary labor certification) is received by U.S. Citizenship and Immigration Services (USCIS) and before it’s approved.
DHS is not going to accept any H-2B petitions under provisions related to the FY 2023 supplemental numerical allocations after September 15, 2023, and is not going to approve any such H-2B petitions after September 30, 2023. Provisions related to portability are only available to petitioners and H-2B nonimmigrant staff starting work by January 24, 2024.
USCIS previously announced that petitioners requesting additional H-2B staff under the rule must file their petitions on the California Service Center. This transformation doesn’t affect the filing locations for petitions filed under the everlasting H-2B regulations, whether or not they are cap-subject or cap-exempt. USCIS also announced that it’s temporarily suspending premium processing for H-2B supplemental cap petitions until January 3, 2023. Premium processing stays available for all other H-2B petitions.
DHS and DOL are accepting written public comments on the temporary final rule and related latest information collection (Form ETA-9142B-CAA-7) by February 13, 2023. Instructions on submitting comments are included within the temporary final rule.
Details:
- Temporary final rule, DOL/DHS, 87 Fed. Reg. 76816 (Dec. 15, 2022). https://bit.ly/3WtMRQz
- “DHS and DOL Announce Availability of Additional H-2B Visas for Fiscal Yr 2023,” USCIS News Release, Dec. 12, 2022. https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-fiscal-year-2023
- “USCIS Broadcasts Essential Filing Information for Upcoming FY 2023 H-2B Supplemental Cap Petitions,” USCIS Alert, Dec. 8, 2022. https://bit.ly/3URJt0u
- “DHS to Complement H-2B Cap With Nearly 65,000 Additional Visas for Fiscal Yr 2023,” USCIS Alert, Oct. 12, 2022. https://bit.ly/3FQFu09
OFLC Publishes Latest 2023 H-2A Hourly Opposed Effect Wage Rates for Non-Range Occupations and for Herding or Production of Livestock on the Range
In two notices, the Department of Labor’s Employment and Training Administration (ETA) announced the brand new Opposed Effect Wage Rates (AEWRs) under the H-2A program for (1) agricultural labor or services aside from the herding or production of livestock on the range, and (2) occupations involving herding or production of livestock on the range.
Details:
Chief Justice Roberts Issues Temporary Stay of ‘Title 42’; Hundreds Wait in Mexico
Chief Justice Roberts of the U.S. Supreme Court ordered a short lived stay of Title 42 on December 19, 2022, to permit the Supreme Court time to think about the problem. Justice Roberts’ order got here after the Department of Homeland Security (DHS) issued an update on December 13, 2022, on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld by the D.C. Circuit Court of Appeals in a ruling on December 16, 2022.
Title 42 prevents many migrants from looking for asylum in america due to COVID-19 concerns and requires them to attend in Mexico. In response to reports, hundreds of migrants, many from Haiti, who want to enter america are in camps in Mexico. Two Title 42 amendments failed that had slowed down passage of the $1.7 trillion funding bill that Congress passed and President Biden signed on December 23, 2022. Reportedly, the Biden administration also could also be considering humanitarian parole for some Haitians, Nicaraguans, and Cubans, as was provided for Venezuelans recently.
Details:
- “Chief Justice Roberts Briefly Halts Decision Banning Border Expulsions,” Latest York Times, Dec. 19, 2022. https://www.nytimes.com/2022/12/19/us/politics/title-42-scotus-immigration-asylum.html (subscription required)
- Arizona v. Mayorkas, order issued Dec. 19, 2022. https://www.supremecourt.gov/orders/courtorders/121922zr_g314.pdf
- Application for a stay, submitted to Chief Justice Roberts Dec. 19, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250328/20221219140309326_Title%2042%20-%20Emergency%20Application%20for%20Stay%20File%20Version.pdf
- Federal respondents’ opposition to application for a stay pending certiorari, Dec. 20, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250530/20221220190658873_22A544%20Govt%20opp%20to%20Ariz%20stay%20final%20corrected.pdf
- Reply of applicant Arizona, et al. filed, Dec. 21, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250553/20221221084240400_Title%2042%20-%20Emergency%20Stay%20Reply%20File%20Version%20Final%202.pdf
- “Senate Passes $1.7 Trillion Omnibus Spending Bill Without Title 42 Protections,” National Review, Dec. 22, 2022. https://www.nationalreview.com/news/senate-passes-1-7-trillion-omnibus-spending-bill-without-title-42-protections/
- “Hundreds Wait in Tent Camps in Mexico for a Probability to Cross the Border,” NBC News, Dec. 22, 2022. https://www.nbcnews.com/news/latino/thousands-wait-tent-camps-mexico-chance-cross-border-rcna63026
- “U.S. Court Rejects Maintaining COVID-19 Asylum Restrictions,” Associated Press, Dec. 17, 2022. https://apnews.com/article/texas-donald-trump-immigration-missouri-amarillo-e6f9ce07b955bdc962118a798129f319
DHS Public Charge Ground of Inadmissibility Final Rule Effective December 23
On December 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule went into effect. The previously announced final rule “provides clarity and consistency for noncitizens on how DHS will administer the general public charge ground of inadmissibility. This final rule restores the historical understanding of a ‘public charge’ that had been in place for a long time before the previous administration began to think about supplemental public health advantages akin to Medicaid and dietary assistance as a part of the general public charge inadmissibility determination,” DHS said.
When making a public charge inadmissibility determination under the ultimate rule, DHS said it should consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills”; a sufficient “Affidavit of Support Under Section 213A of the INA (when one is required)”; and prior or current receipt of “Supplemental Security Income (SSI); money assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local money profit programs for income maintenance (often called ‘General Assistance’); or long-term institutionalization at government expense.”
For public charge inadmissibility determinations, DHS is not going to consider receipt of noncash advantages (for instance, the Supplemental Nutrition Assistance Program, public housing, school lunch programs) aside from long-term institutionalization at government expense.
Applicants must file the updated 12/23/22 edition of I-485, Application to Register Everlasting Residence or Adjust Status. Earlier versions might be rejected, U.S. Citizenship and Immigration Services (USCIS) said.
Details:
On this edition, find the most recent news on employee options following termination of employment, the H-2B Nonimmigrant Visa availability increase, the 2023 H-2A hourly opposed effect wage rates and more!
USCIS Provides List of Options for Nonimmigrant Staff Following Termination of Employment
On December 19, 2022, U.S. Citizenship and Immigration Services (USCIS) provided a compilation of options that could be available to nonimmigrant staff looking for to stay in america in a period of authorized stay following termination of employment.
The compilation includes details on:
- A discretionary 60-day grace period that permits staff in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be regarded as having maintained status following the cessation of employment for as much as 60 consecutive calendar days or until the top of the authorized validity period, whichever is shorter.
- Portability to a latest employer, allowing staff currently in H-1B status to start working for a latest employer as soon because the employer properly files a latest H-1B petition with USCIS, without waiting for the petition to be approved. Also, a employee with an adjustment of status application (Form I-485) that has been pending for at the least 180 days with an underlying valid immigrant visa petition (Form I-140) has the flexibility to transfer the underlying immigrant visa petition to a latest offer of employment in the identical or similar occupational classification with the identical or a latest employer (commonly often called “porting”).
Other options include change of status, change of status and employer, adjustment of status, period of authorized stick with a “compelling circumstances” employment authorization document, expedited adjudication criteria, and departure from america and looking for readmission in the identical or one other classification.
Details:
USCIS Increases H-2B Nonimmigrant Visa Availability
In a short lived final rule published on December 15, 2022, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has increased the overall variety of noncitizens who may receive an H-2B nonimmigrant visa by as much as 64,716 for fiscal 12 months (FY) 2023. To “assist U.S. businesses that need staff to start work on different start dates,” the Departments of Homeland Security (DHS) and Labor (DOL) will distribute the supplemental visas in several allocations, including two separate allocations within the second half of FY 2023.
Of the overall 64,716 visas made available, 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, or Haiti. All 64,716 visas can be found only to “those businesses which can be suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a latest attestation form.” Along with making the extra 64,716 visas available under the FY 2023 time-limited authority, DHS is exercising its general H–2B regulatory authority to offer temporary portability flexibility again by allowing H–2B staff who’re already in america to start work immediately after an H–2B petition (supported by a legitimate temporary labor certification) is received by U.S. Citizenship and Immigration Services (USCIS) and before it’s approved.
DHS is not going to accept any H-2B petitions under provisions related to the FY 2023 supplemental numerical allocations after September 15, 2023, and is not going to approve any such H-2B petitions after September 30, 2023. Provisions related to portability are only available to petitioners and H-2B nonimmigrant staff starting work by January 24, 2024.
USCIS previously announced that petitioners requesting additional H-2B staff under the rule must file their petitions on the California Service Center. This transformation doesn’t affect the filing locations for petitions filed under the everlasting H-2B regulations, whether or not they are cap-subject or cap-exempt. USCIS also announced that it’s temporarily suspending premium processing for H-2B supplemental cap petitions until January 3, 2023. Premium processing stays available for all other H-2B petitions.
DHS and DOL are accepting written public comments on the temporary final rule and related latest information collection (Form ETA-9142B-CAA-7) by February 13, 2023. Instructions on submitting comments are included within the temporary final rule.
Details:
- Temporary final rule, DOL/DHS, 87 Fed. Reg. 76816 (Dec. 15, 2022). https://bit.ly/3WtMRQz
- “DHS and DOL Announce Availability of Additional H-2B Visas for Fiscal Yr 2023,” USCIS News Release, Dec. 12, 2022. https://www.uscis.gov/newsroom/news-releases/dhs-and-dol-announce-availability-of-additional-h-2b-visas-for-fiscal-year-2023
- “USCIS Broadcasts Essential Filing Information for Upcoming FY 2023 H-2B Supplemental Cap Petitions,” USCIS Alert, Dec. 8, 2022. https://bit.ly/3URJt0u
- “DHS to Complement H-2B Cap With Nearly 65,000 Additional Visas for Fiscal Yr 2023,” USCIS Alert, Oct. 12, 2022. https://bit.ly/3FQFu09
OFLC Publishes Latest 2023 H-2A Hourly Opposed Effect Wage Rates for Non-Range Occupations and for Herding or Production of Livestock on the Range
In two notices, the Department of Labor’s Employment and Training Administration (ETA) announced the brand new Opposed Effect Wage Rates (AEWRs) under the H-2A program for (1) agricultural labor or services aside from the herding or production of livestock on the range, and (2) occupations involving herding or production of livestock on the range.
Details:
Chief Justice Roberts Issues Temporary Stay of ‘Title 42’; Hundreds Wait in Mexico
Chief Justice Roberts of the U.S. Supreme Court ordered a short lived stay of Title 42 on December 19, 2022, to permit the Supreme Court time to think about the problem. Justice Roberts’ order got here after the Department of Homeland Security (DHS) issued an update on December 13, 2022, on southwest border security and preparedness in anticipation of a court-ordered lifting of Title 42 by December 21, 2022, which was upheld by the D.C. Circuit Court of Appeals in a ruling on December 16, 2022.
Title 42 prevents many migrants from looking for asylum in america due to COVID-19 concerns and requires them to attend in Mexico. In response to reports, hundreds of migrants, many from Haiti, who want to enter america are in camps in Mexico. Two Title 42 amendments failed that had slowed down passage of the $1.7 trillion funding bill that Congress passed and President Biden signed on December 23, 2022. Reportedly, the Biden administration also could also be considering humanitarian parole for some Haitians, Nicaraguans, and Cubans, as was provided for Venezuelans recently.
Details:
- “Chief Justice Roberts Briefly Halts Decision Banning Border Expulsions,” Latest York Times, Dec. 19, 2022. https://www.nytimes.com/2022/12/19/us/politics/title-42-scotus-immigration-asylum.html (subscription required)
- Arizona v. Mayorkas, order issued Dec. 19, 2022. https://www.supremecourt.gov/orders/courtorders/121922zr_g314.pdf
- Application for a stay, submitted to Chief Justice Roberts Dec. 19, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250328/20221219140309326_Title%2042%20-%20Emergency%20Application%20for%20Stay%20File%20Version.pdf
- Federal respondents’ opposition to application for a stay pending certiorari, Dec. 20, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250530/20221220190658873_22A544%20Govt%20opp%20to%20Ariz%20stay%20final%20corrected.pdf
- Reply of applicant Arizona, et al. filed, Dec. 21, 2022. https://www.supremecourt.gov/DocketPDF/22/22A544/250553/20221221084240400_Title%2042%20-%20Emergency%20Stay%20Reply%20File%20Version%20Final%202.pdf
- “Senate Passes $1.7 Trillion Omnibus Spending Bill Without Title 42 Protections,” National Review, Dec. 22, 2022. https://www.nationalreview.com/news/senate-passes-1-7-trillion-omnibus-spending-bill-without-title-42-protections/
- “Hundreds Wait in Tent Camps in Mexico for a Probability to Cross the Border,” NBC News, Dec. 22, 2022. https://www.nbcnews.com/news/latino/thousands-wait-tent-camps-mexico-chance-cross-border-rcna63026
- “U.S. Court Rejects Maintaining COVID-19 Asylum Restrictions,” Associated Press, Dec. 17, 2022. https://apnews.com/article/texas-donald-trump-immigration-missouri-amarillo-e6f9ce07b955bdc962118a798129f319
DHS Public Charge Ground of Inadmissibility Final Rule Effective December 23
On December 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule went into effect. The previously announced final rule “provides clarity and consistency for noncitizens on how DHS will administer the general public charge ground of inadmissibility. This final rule restores the historical understanding of a ‘public charge’ that had been in place for a long time before the previous administration began to think about supplemental public health advantages akin to Medicaid and dietary assistance as a part of the general public charge inadmissibility determination,” DHS said.
When making a public charge inadmissibility determination under the ultimate rule, DHS said it should consider an applicant’s “age; health; family status; assets, resources, and financial status; education and skills”; a sufficient “Affidavit of Support Under Section 213A of the INA (when one is required)”; and prior or current receipt of “Supplemental Security Income (SSI); money assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local money profit programs for income maintenance (often called ‘General Assistance’); or long-term institutionalization at government expense.”
For public charge inadmissibility determinations, DHS is not going to consider receipt of noncash advantages (for instance, the Supplemental Nutrition Assistance Program, public housing, school lunch programs) aside from long-term institutionalization at government expense.
Applicants must file the updated 12/23/22 edition of I-485, Application to Register Everlasting Residence or Adjust Status. Earlier versions might be rejected, U.S. Citizenship and Immigration Services (USCIS) said.
Details:
