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Immigration Update

Nov 14, 2022 | Immigration Updates

In this edition, find the latest news on the Department of Homeland Security’s list of countries eligible for H-2A and H-2B programs, the U.S. Customs and Border Protection’s discontinuation of passport entry stamps, the Department of State’s announcement of resumption of interviews for all immigrant visas in Havana, and more.

DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini

The Department of Homeland Security (DHS), in consultation with the Department of State, announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. Effective November 10, 2022, DHS added the Kingdom of Eswatini (formerly Swaziland) to the list. Each country’s designation is valid until November 9, 2023.

DHS said that U.S. Citizenship and Immigration Services (USCIS) may approve H-2A and H-2B petitions, including those pending as of the date of publication of the Federal Register notice on November 10, 2022, “for nationals of countries not on the lists on a case-by-case basis only if doing so is determined to be in the interest of the United States.”

DHS said the notice does not affect the status of H-2 beneficiaries who are currently in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, the notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved before the date of publication. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B.

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CBP Is Discontinuing Passport Entry Stamps, Transitioning to Online I-94 Arrival/Departure Records Only; Mistakes Are Common

U.S. Customs and Border Protection (CBP) has automated the I-94 process for most nonimmigrants arriving by air and sea. According to reports, this means that in many cases, foreign nationals no longer receive an entry stamp in their passports at ports of entry documenting their arrival.

Employers should advise their foreign national employees to check the accuracy of their I-94 Arrival/Departure Records on the U.S. Customs and Border Protection (CBP) website soon after they enter the United States, as errors are common. The site requires the name, date of birth, and passport number. The I-94, not the passport, visa, or prior approval notice, documents a nonimmigrant’s status, approved length of stay in the United States, and departure information.

In case of an I-94 error, there is an online CBP system for requesting corrections, but some practitioners report months-long delays and agency inaction. They recommend contacting the appropriate CBP office directly or sending a Deferred Inspections email instead to get I-94 records corrected.

Earlier this year, CBP also announced that it is issuing electronic I-94s at land ports of entry. For land arrivals, CBP is no longer issuing paper I-94s to nonimmigrants upon arrival except in limited circumstances and upon nonimmigrant request if feasible. Nonimmigrants can access Form I-94s online at the CBP website or via mobile application.

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State Dept. Announces Full Resumption of Interviews for All Immigrant Visa Categories in Havana in January 2023

The Department of State (DOS) announced on November 10, 2022, that the U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. The U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022. Immigrant visa applicants whose appointments were originally scheduled in Georgetown will complete case processing there.

Embassy Havana will process diversity visa cases for applicants who reside in Cuba beginning in January 2023. DOS noted that Havana will not be an option on the dropdown menu when diversity visa selectees pick an interview location on the DS-260 immigrant visa application form. They should continue to select Georgetown for the DV-2023 program year. DOS said that applicants who provide a residential address within Cuba on their DS-260s will have their cases automatically reassigned to Havana, unless they have already been scheduled at Georgetown.

Immigrant visa applicants scheduled for January 2023 appointments in Havana will begin receiving appointment notices on or after November 10, 2022.

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E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts

E-Verify recently reminded employers and program administrators that an E-Verify user’s access “must be promptly terminated upon separation from your organization.” A good practice, E-Verify said, is to review and update existing users whenever staffing changes occur and also on a regular basis.

User accounts should be deleted whenever a user is separated from the organization or the user’s role no longer requires access. Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding, E-Verify noted.

E-Verify also notified program administrators that their accounts are associated with their employers: “If you are hired by a new employer, you will need to create a new account. You are prohibited from using your old employer’s account to create cases for a new employer.”

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President Biden Accepts Resignation of CBP Commissioner

On November 12, 2022, President Joe Biden accepted the resignation of Chris Magnus, U.S. Customs and Border Protection Commissioner. He had initially refused to step down after Alejandro Mayorkas, Secretary of Homeland Security, reportedly told Mr. Magnus on November 9, 2022, that he must resign or he would be fired. Mr. Magnus’s duties and direct reports have been shifted to other people, an unnamed DHS official said.

Mr. Magnus was accused of unprofessional behavior by other officials working with him, an earlier report says. Several Republicans in the House of Representatives, who criticized his handling of border issues, then urged President Biden to call for Mr. Magnus’ resignation. Citing the earlier report, the letter also alleged that Mr. Magnus “fails to attend high-level meetings,” engages in “constant complaining about his fellow senior officials” in DHS, “was caught sleeping through some of the meetings he actually attended,” and “fails to actively participate during internal calls with Secretary Mayorkas regarding border and immigration issues.”

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President Biden Revokes Trump-Era Ban on Entry of Many Immigrants; State Dept. Instructs Exceptions to Nonimmigrant Ban

On February 24, 2021, President Biden revoked former President Trump’s proclamation issued in April 2020 that banned many immigrants from entering the United States. Biden Proclamation Revoking Immigrant Ban President Biden’s proclamation states that the Trump-era ban, whose stated purpose was to prevent entry by those who presented a risk to the U.S. labor market during the coronavirus outbreak, does not advance the interests of the United States. “To the contrary, it harms the United States” and “harms industries in the United States that utilize talent from around the world,” the new proclamation states. It also “harms individuals who were selected to receive the opportunity to apply for, and those who have likewise received” fiscal year 2020 diversity visas. The Biden proclamation orders the Departments of State, Labor, and Homeland Security to review any related regulations, orders, guidance, policies, or other agency actions and, as appropriate, issue revised guidance consistent with the new proclamation. DOS Instructions on Exceptions to Nonimmigrant Ban The new Biden proclamation did not lift a Trump-era ban on certain H-1B, H-2B, L-1, and J-1 temporary work visas, set to expire on March 31, 2021. It is unclear whether the Biden administration plans to revoke that ban […]

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