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Immigration Update

Feb 6, 2023 | Immigration Updates

In this edition, find the latest news about U.S. Citizenship and Immigration Services’ (USCIS’s) clarification of physical presence guidance for asylees and refugees applying for adjustment of status, U.S. Customs and Border Protection’s (CBP’s) proposal to require additional passenger air travel documents, and certain asylum becoming eligible to apply for work authorization online.

USCIS Clarifies Physical Presence Guidance for Asylees and Refugees Applying for Adjustment of Status

U.S. Citizenship and Immigration Services (USCIS) has clarified that an asylee or refugee must have been physically present in the United States for one year when USCIS adjudicates the Form I-485, Application to Register Permanent Residence or Adjust Status, rather than when the adjustment of status application is filed. This applies to all Form I-485 and Form N-400, Application for Naturalization, applications that were pending on February 2, 2023, and those filed on or after that date.

The guidance update also clarifies that asylee and refugee adjustment of status applicants previously admitted in J-1 or J-2 nonimmigrant status and otherwise subject to the two-year foreign residence requirement under Immigration and Nationality Act (INA) § 212(e) do not need to meet that two-year requirement (or obtain a waiver) to adjust their status under INA § 209.

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CBP Proposes Additional Passenger Travel Document Requirements for Air Carriers

U.S. Customs and Border Protection (CBP) proposes to amend its regulations to incorporate additional commercial air carrier requirements that would enable CBP to determine, before an aircraft’s departure from the United States or from a foreign port or place, whether each passenger is traveling with valid, authentic travel documents before the passenger boards the aircraft. The proposed regulations would also require commercial air carriers to transmit additional data elements through CBP’s Advance Passenger Information System (APIS) for all commercial aircraft passengers arriving, or intending to arrive, in the United States, “to support border operations and national security and safety.”

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Certain Asylum Applicants Can Now Apply for Work Authorization Online

Applicants for employment authorization under category (c)(8), Pending Asylum and Withholding of Removal Applicants and Applicants for Pending Asylum under the ABC Settlement Agreement, can now file Form I-765, Application for Work Authorization, online.

To apply for an Employment Authorization Document (EAD) based on a pending asylum application under the (c)(8) eligibility category, the applicant may file Form I-765 150 days after filing the asylum application. The filing date is the date U.S. Citizenship and Immigration Services (USCIS) receives a properly filed Form I-589, Application for Asylum and Withholding of Removal. The date can be found on the receipt notice.

To file the Form I-765 online, an applicant must first create a USCIS online account. There is no cost to create an account.

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Corporate & Counsel Interlude: Employer Impact Statement on Parole and DACA/Dreamer Executive Order

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