Immigration Update

May 31, 2022 | Immigration Updates

In this edition, find the latest news on the June Visa Bulletin, TPS designation process for Afghans, an investor lawsuit against DHS, and more.

June Visa Bulletin Includes Updates on ‘Other Workers,’ China, Diversity Visa Availability

The Department of State’s Visa Bulletin for June 2022 includes the following information:

D. Establishment of Employment Third Preference “Other Workers” (EW) Final Action Date

High number use in the Employment Third Preference “Other Workers” (EW) category has necessitated the establishment of a worldwide final action date in June to hold number use within the maximum allowed under the FY-2022 annual limit. All countries are subject to a final action date of 08MAY19 except for China-mainland born, which is subject to a 01JUN12 final action date and India, which is subject to a 15JAN12 final action date.

E. Establishment of C5 and T5 Final Action Date and Application Filing Date for China-Mainland Born

It has become necessary to establish a final action date and application filing date for C5 and T5 China-mainland born because sufficient demand has materialized as readers were cautioned was a possibility in Item D of the May 2022 Visa Bulletin. China-mainland born C5 and T5 applicants are subject to a 22NOV15 final action date and an application filing date of 15DEC15.

F. Availability of Diversity Visas (DV)

Most regions have been set to “Current” for June 2022 in an effort to maximize number use during the DV-2022 program year. However, rank cut-offs could be re-established for any region or country in future months to keep number use within the applicable annual limits.

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DHS Announces TPS Designation, Registration Process for Afghans

The Department of Homeland Security has provided information on how to register for temporary protected status (TPS) under Afghanistan’s 18-month designation. The registration period began on May 20, 2022, and runs through November 20, 2023. USCIS estimates 72,500 individuals currently in the United States may be eligible for TPS under the designation of Afghanistan.

To be eligible for TPS under this designation, individuals must demonstrate their continuous residence in the United States since March 15, 2022, and continuous physical presence in the United States since May 20, 2022. Afghan nationals currently not residing in the United States or who arrived in the United States after March 15, 2022, are not eligible for TPS under this designation.

DHS said that through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis for humanitarian reasons for a period of two years and received work authorization. These individuals may also be eligible for TPS.

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Investors File Lawsuit Against DHS To Stop EB-5 Regional Center Decertifications

A group of investment and capital firms filed a lawsuit on May 24, 2022, against the Department of Homeland Security, arguing that when U.S. Citizenship and Immigration Services (USCIS) decertified existing EB-5 regional centers, it violated the Administrative Procedure Act and misinterpreted the EB-5 Reform and Integrity Act of 2022, which was signed into law following a lapse in authorization for the EB-5 Regional Center Program. Plaintiffs say that by categorically decertifying more than 600 existing EB-5 regional centers and requiring them to recertify, USCIS “eviscerated” the program and determined that a wholly new regional center program was created rather than following congressional intent to reauthorize the program with a few changes and allow existing regional centers to continue their work.

Alleging that USCIS’s action was “unlawful for a host of reasons,” plaintiffs said the agency’s action meant that “all existing regional centers, which already have billions of dollars in invested capital, ongoing development projects, and investors awaiting adjudication of their visa petitions, must effectively pause all revenue-generating operations (while still maintaining regulatory obligations to existing investors) indefinitely until USCIS approves their new applications. At current processing rates, it will take well over a decade for more than 600 programs to become redesignated.”

Plaintiffs are represented by H. Ronald Klasko and Daniel B. Lundy, of Klasko Immigration Law Partners LLP, and Paul W. Hughes, Andrew A. Lyons-Berg, and Alex C. Boota, of McDermott Will & Emery LLP.

This is the second lawsuit challenging USCIS’s claim that all regional centers must be redesignated. A preliminary injunction hearing in Behring Regional Center LLC v. Mayorkas, No. 3-22-cv-02487-VC (N.D. Cal.), will be held June 2.

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Additional 35,000 H-2B Visas Available for Second Half of Fiscal Year

The Departments of Homeland Security (DHS) and Labor (DOL) announced a temporary final rule making available an additional 35,000 H-2B temporary nonagricultural worker visas during the second half of fiscal year (FY) 2022. The visas are for U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022.

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers. The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022.

In support of the temporary final rule, the Office of Foreign Labor Certification (OFLC) posted a new Form ETA-9142-B-CAA-6 and accompanying instructions. The TFR requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. This attestation must be submitted to U.S. Citizenship and Immigration Services along with Form I-129 in support of an H-2B application subject to the H-2B cap by September 30, 2022.

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DOL Issues Guidance on Employment of H-2B Workers in Unapproved Job Classifications

The Department of Labor’s Wage and Hour Division (WHD) released a bulletin to the field regarding employment of H-2B workers in unapproved job classifications (i.e., a job classification not listed on the Application for Temporary Employment Certification (TEC), Form ETA-9142B). The memo notes that such employment violates the requirement that employers may not place H-2B workers in positions not listed on the TEC application.

The memo provides information on the “harms inflicted on the U.S. and H-2B workforce” by such employment and provides “guidance on the sanctions and remedies” that the WHD may implement.

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