By: Patricia Gannon, Esq. , Marcela Bermudez, Esq. , and Ruijie “Jessica” Zhang, Esq.
Should appropriations legislation or a stop-gap spending bill not be passed by Congress by September 30, 2023, the government will enter a partial shutdown on October 1, 2023. If that is the case, the following may occur.
PERM applications and submissions, labor condition applications (LCAs), prevailing wage requests, and audit responses are submitted through the Department of Labor (DOL). DOL immigration responsibilities would be deemed non-essential functions. Therefore, the above functions will be suspended. Online application systems would be taken offline, and the agency would also be unable to accept submissions by mail.
On the other hand, U.S. Citizenship and Immigration Services (USCIS) as a fee-funded agency, would continue to process applications and petitions for immigration benefits, but processing delays could occur if adjudication of a case is dependent on support from government functions that are suspended. Appointments at USCIS local offices and application support centers should not be affected by the shutdown.
The State Department’s visa processing and U.S. citizenship document functions are also funded by fees. As long as filing fees remain accessible to fund consular operations, this should not be an issue. Passport offices may be affected if they are in federal buildings that are closed due to the shutdown.
Many immigration functions serve many purposes including protection of sovereign borders. Therefore, the U.S. Customs and Border Protection (CBP) Inspection functions at U.S. borders and ports of entry would remain in operation. This would include immigration applications at the border. Immigration and Customs and Enforcement (ICE) Exchange Visitor Information System (SEVIS) would continue in operation as essential functions.
DOS Testing Digital Visa Authorization at the U.S. Embassy in Dublin
The Department of State (DOS) announced that it is developing the capability to issue a digital visa authorization (DVA) instead of the traditional visa printed and placed in applicants’ passports. The U.S. Embassy in Dublin is conducting a limited DVA proof of concept with a small number of K-1 (fiancé(e)) visas. If this initial proof of concept is successful, DOS will be extending the DVA to other visa classes and additional posts in the future. The CBP will be notified of the issuance of a DVA, and the CBP’s Document Validation program will digitally notify an airline that a passenger is utilizing a DVA. This notification will allow the passenger to board the plane, travel to the United States, and request admission.
USCIS Enhances Clarity in EB-1 Immigrant Visa Eligibility Evaluation
On September 12, 2023, USCIS took steps to provide greater clarity and transparency in the evaluation of eligibility for the extraordinary ability (E11) and outstanding professor or researcher (E12) EB-1 immigrant visa classifications. In a recent policy update within the USCIS Policy Manual, the agency has outlined specific types of evidence that will be considered when determining eligibility for these visa categories. This update offers comprehensive guidance that includes examples of evidence that can satisfy the required criteria or be regarded as comparable evidence. Notably, the guidance pays special attention to science, technology, engineering, or mathematics (STEM) fields, recognizing their significance in contemporary immigration considerations.
USCIS Updates Interpreter Requirements for Affirmative Asylum Applicants
USCIS has issued a reminder to affirmative asylum applicants about a significant change in interview procedures, effective September 13, 2023. From this date forward, it is imperative for applicants who are not fluent in English or prefer to proceed with their asylum interview in a language other than English, to bring an interpreter with them.
Sign language interpreters are the only exception to this rule, as USCIS will continue to provide them as disability accommodation. Applicants needing a sign language interpreter should follow the instructions outlined in their interview notice to request this disability accommodation.
It is crucial to note that failing to bring an interpreter or bringing an interpreter who is not fluent in both English and the applicant’s language, without establishing the good cause, may result in USCIS considering this a failure to appear for the interview. Consequences may include the dismissal of the asylum application or referral to an immigration judge. Good cause will be determined on a case-by-case basis.
The interpreter must meet certain criteria, including fluency in both English and the applicant’s language, being at least 18 years old, and not falling into specific disqualifying categories, such as being the applicant’s attorney, witness, or a government representative from the applicant’s country of nationality. This change comes from the expiration of a temporary rule, introduced in 2020 in response to COVID-19, which allowed contracted telephonic interpreters. With the expiration of this rule, USCIS is reverting to the prior regulatory requirement for affirmative asylum applicants to provide their own interpreter.
DHS Extends Temporary Protected Status (TPS) Re-Registration Periods for Existing Beneficiaries from Six Countries
The Department of Homeland Security (DHS) is extending the re-registration duration from the previous 60 days to a more accommodating 18 months, providing existing TPS beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan with additional time to take the necessary steps for maintaining their protected status.
The extended re-registration periods are as follows:
El Salvador: Now extended through March 9, 2025.
Haiti: Now extended through August 3, 2024.
Honduras: Now extended through July 5, 2025.
Nepal: Now extended through June 24, 2025.
Nicaragua: Now extended through July 5, 2025.
Sudan: Now extended through April 19, 2025.
This policy change allows TPS beneficiaries to submit Form I-821 (Application for Temporary Protected Status) and Form I-765 (Application for Employment Authorization) within the 18-month extensions of TPS designations for these six countries. Also, the extensions enable TPS beneficiaries under the respective designations to re-register even after the previously communicated expiration dates noted in Federal Register notices.
The DHS will soon publish a Federal Register notice to provide more comprehensive details on this re-registration extension. It is essential to understand that this announcement does not alter the previously declared extensions of TPS designations for these six countries or their eligibility requirements. Instead, it only expands the period during which existing beneficiaries can re-register to maintain their TPS benefits.
USCIS Provides I-9 Guidelines in Response to 2023 Hawaii Wildfires
In response to the 2023 Hawaii wildfires and potential document loss or destruction, USCIS issued guidelines on September 5, 2023. It is crucial to note that all Form I-9, Employment Eligibility Verification, requirements remain in effect for affected areas. Employers must continue completing and retaining Form I-9 for all new hires and current employees.
New employees impacted by the 2023 Hawaii wildfires can present a receipt indicating they have applied for a replacement document (List A, B, or C) if their original documentation was lost, stolen, or damaged. This receipt is valid for 90 days from their first day of employment and satisfies the verification requirements for the respective document. If they cannot provide the actual replacement document within this 90-day period, they have the option to use alternative acceptable documentation. However, it is important to note that receipts are not accepted for employment durations lasting fewer than three business days. Likewise, for current employees requiring reverification, they may present a receipt within 90 days from the date their original employment authorization expired, indicating they have applied for a replacement, if their original document was lost, stolen, or damaged.
In cases where employees’ original Forms I-9 were damaged or destroyed due to the 2023 Hawaii wildfires, employers are obligated to recreate new Forms I-9 for these affected, current employees. Employers should include a specific notation in the Additional Information field on these recreated forms, stating: “Original Form I-9 destroyed in 2023 Hawaii wildfires; replacement created MM/DD/YYYY.” This notation is essential to accurately reflect the circumstances surrounding the replacement of these forms, ensuring compliance with regulatory requirements.
USCIS Lifts Temporary Suspension of Biometrics Submission for Form I-539 Applicants
In accordance with previous announcements made on April 19, 2023, USCIS is concluding the temporary suspension of the biometrics submission requirement for applicants filing Form I-539, seeking an extension of their stay or a change of status to H-4, L-2, or E nonimmigrant status. The suspension, which had been extended until September 30, 2023, is now set to end. As a reminder, unless further extensions are announced by USCIS, Form I-539 applicants who meet the biometrics submission criteria will be required to submit the $85 biometric services fee after September 30, 2023.
