Immigration Update

Aug 30, 2023 | Immigration Updates

In this edition, find the latest news on the USCIS policy guidance, OFLC round 4 FAQs, USCIS’ new online appointment request form, and more!

USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement

U.S. Citizenship and Immigration Services (USCIS) announced on August 24, 2023, that it is updating the USCIS Policy Manual to clarify how it will apply the extraordinary circumstances exception to the “sought to acquire” requirement under the Child Status Protection Act (CSPA) in light of a February 14, 2023, policy change updating when an immigrant visa becomes available for the purpose of calculating an applicant’s CSPA age.

USCIS explained that the CSPA protects certain beneficiaries from losing their eligibility for immigrant visas and adjustment of status because they age during the immigration process and no longer qualify as a child for immigration purposes. To benefit from the CSPA, noncitizens must seek to acquire lawful permanent resident status within 1 year of when an immigrant visa becomes available, USCIS noted. The update:

  • Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;
  • Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
  • Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

USCIS explained that under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, USCIS said, they may not be able to meet the one-year “sought to acquire” requirement. “However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances,” USCIS noted.

USCIS said it welcomes feedback on this guidance and will consider any comments received in future updates. Comments can be submitted via the Policy Manual Feedback page.

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OFLC Issues Round 4 FAQs for H-1B, H-1B1, and E-3 Programs; Rescinds COVID-19 FAQs

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued Round 4 of its frequently asked questions (FAQs) related to the Labor Condition Application (LCA/ETA Form 9035/9035E) for the H-1B, H-1B1 and E-3 visa programs.

Also, as of August 24, 2023, OFLC has rescinded in full all COVID-19 FAQs, which includes Round 1 (published March 20, 2020); Round 2 (published April 1, 2020); Round 3 (published April 9, 2020); and Round 4 (published June 3, 2020). The processing centers have resumed normal operations. All other FAQs not related to COVID-19 remain in full effect, OFLC said.

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USCIS Launches New Online Appointment Request Form

On August 21, 2023, U.S. Citizenship and Immigration Services (USCIS) announced a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center.

The online appointment request form allows individuals or legal representatives to request an in-person appointment at a field office, for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more, USCIS said. The USCIS Contact Center will review submitted forms and the availability of in-person appointments at a specific field office. The agency said that individuals “may request a specific date and time for an in-person appointment, but USCIS cannot guarantee that the requested appointment date will be scheduled. USCIS will confirm and schedule the individual for an available in-person appointment date and time.”

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OFLC Issues FAQ for Employers on Effects of Hawaii Wildfires

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has issued frequently asked questions (FAQs) for employers and their authorized attorneys or agents related to effects of the Hawaii wildfires, including extensions and methods of communication.

Among other things, the FAQs note that OFLC will continue to contact employers and their authorized attorneys or agents primarily using email and—where email addresses are not available—will use U.S. mail, if available. If an employer is impacted by internet and power outages, employers may contact OFLC using the phone numbers listed in the FAQs. For each of OFLC’s programs, the agency said the most effective means of communicating with OFLC is through the established Foreign Labor Application Gateway (FLAG) or the PERM Case Management System. If an employer or its authorized attorney or agent is unable to communicate with OFLC through FLAG or the PERM system, alternative methods of contacting OFLC regarding each of OFLC’s programs are provided in the FAQs. OFLC said it will grant extensions of time and deadlines for affected employers and/or their authorized attorneys or agents, including for delays caused by the wildfires in Hawaii and those resulting from businesses preparing to adjust their normal operations due to the wildfires in Hawaii. OFLC said it may extend deadline flexibility to employers and/or their authorized attorneys or agents who are outside a Federal Emergency Management Agency-designated “major disaster” area but are impacted in such a way as to affect their ability to meet OFLC deadlines. OFLC said it will evaluate such requests on a case-by-case basis.

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Ukraine TPS Extended, Redesignated; Special Student Relief Announced

The Department of Homeland Security (DHS) is extending and redesignating Ukraine for Temporary Protected Status (TPS). The extension allows approximately 26,000 current beneficiaries to retain TPS through April 19, 2025, if they continue to meet TPS eligibility requirements. An estimated 166,700 additional individuals may be eligible for TPS under the redesignation of Ukraine. This population includes nationals of Ukraine (and individuals without nationality who last habitually resided in Ukraine) in the United States in nonimmigrant status or without lawful immigration status, DHS said. DHS also announced special student relief for Ukraine.

The extension is for 18 months, beginning on October 20, 2023, and ending on April 19, 2025. Existing TPS beneficiaries who wish to extend their status through April 19, 2025, must re-register during the 60-day re-registration period (August 21, 2023, through October 20, 2023). Recognizing that not all re-registrants may receive a new Employment Authorization Document (EAD) before their current EAD expires, U.S. Citizenship and Immigration Services (USCIS) is automatically extending previously issued Ukraine TPS-related EADs through October 19, 2024.

The redesignation of Ukraine allows additional Ukraine nationals (and individuals having no nationality who last habitually resided in Ukraine) who have been continuously residing in the United States since August 16, 2023, to apply for TPS for the first time during the initial registration period (August 21, 2023, through April 19, 2025).

The Federal Register notice explains the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register and renew their employment authorization documents (EADs), and for new applicants to submit an initial application under the redesignation and apply for an EAD. Also, effective October 20, 2023, through April 19, 2025, DHS is suspending certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is Ukraine, regardless of country of birth (or individuals having no nationality who last habitually resided in Ukraine), and who are experiencing severe economic hardship as a result of the current war in Ukraine. Such students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F–1 nonimmigrant student status. DHS said it will deem an F-1 nonimmigrant student granted such employment authorization to be engaged in a “full course of study” for the duration of the employment authorization, if the nonimmigrant student satisfies the minimum course load requirement described in the notice.

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