As published in the Immigration Daily on January 30, 2023
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White House expands and renews Hong Kong deferred enforced departure program.
The Biden Administration announced in a White House memorandum on January 26, 2023, that it would not only renew, but also expand the Hong Kong deferred enforced departure (DED) program for old and initial applications for 24 months. The original grant of DED is to expire on February 5, 2023. Qualified applicants are those Hong Kong residents who have been in the country since 1/26/23 and have not voluntarily returned to Hong Kong or the PRC after 1/26/23. It confers both protection from deportation and employment authorization for those who apply for an EAD. Besides voluntary return to Hong Kong or the PRC, those not eligible are those who have not resided continuously in the US since the date of the memorandum; are inadmissible under security grounds which includes membership in the Communist Party or deportable under such; or have been convicted of any felony or two or more misdemeanors in the United States; or the person persecuted others; has been convicted of a particularly serious crime and constitutes a danger to the community of the United States; there are serious reasons for believing the alien committed a serious nonpolitical crime outside the US; there are reasonable grounds for regarding the alien is a danger to US security; terrorist activity; or when the person is firmly resettled in another country prior to coming to the United States; or is subject to extradition; or whose presence in the US is not in the interests of the United States or represents a danger to public safety; or whose presence in the country the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.
A Hong Kong “resident” has previously been defined for purposes of the program as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong special administrative region passport, a British national overseas passport, a British overseas citizenship passport, a Hong Kong permanent identity card, or a Hong Kong special administrative region (HK SAR) document of identity for visa purposes.
The Federal Register notice implementing the memorandum is expected momentarily.
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USCIS sets schedule for H-1B cap registration program.
USCIS on January 27, 2023, set out the schedule for H-1B registration for cap cases for FY 2024 (10/1/23-9/30/24) which will run from noon EST 3/1/23 – 3/17/23 noon EST. Registrants can open new accounts on 2/21/23 at noon, but submission must be 3/1/23 or later. USCIS will notify account holders by 3/31/23. Last year, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. It is expected that the number of registrations will decrease this year as many technology firms, prime users of H-1B visas, are in the midst of laying off workers because of their overambitious expansion plans fueled by easy access to money (low interest rates) which are presently being stymied by the Federal Reserve’s hiking of those rates.
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Final Covid-19 flexibility dates advanced to March 23, 2023.
In the wake of the pandemic, USCIS has given extra time for individuals and organizations to respond to requests for information from the agency since 2020. It announced in its latest extension on January 24, 2023, that the extension of 60 calendar days for notices for information in addition to the notice deadline date and 90 days from decision date to file appeals, motions, and requests for hearings would end with notices or decisions issued by March 23, 2023, inclusive barring changes presented by the pandemic. If so, that means requests and notices after that must be responded to by the stated response dates, and appeals, motions, and requests for hearing filed within 30 days of decision.
The additional 60 days applies to the following:
- Requests for Evidence;
- Continuations to Request Evidence (N-14);
- Notices of Intent to Deny;
- Notices of Intent to Revoke;
- Notices of Intent to Rescind;
- Notices of Intent to Terminate regional centers;
- Notices of Intent to Withdraw Temporary Protected Status; and
- Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
The 90 days from decision date applies to:
- Form I-290B, Notice of Appeal;
- Form I-290B, Motion;
- Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA)
Applicability of the 60 days is for requests or notices issued between March 1, 2020 – March 23, 2023 inclusive, and the 90 days for decisions made between November 1, 2021 – March 23, 2023 inclusive.
USCIS also added that the reproduced signature flexibility rule announced in March 2020 became a permanent policy on July 25, 2022.
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USCIS announces new dates for expanded premium processing classes of cases.
USCIS on January 12, 2023, announced premium processing expansion for all initial and pending EB-13 (multinational executive and manager) and E-21 NIW (national interest waiver) petitions beginning 1/30/23. It is also planning to offer premium processing for F-1 students seeking OPT or STEM OPT extensions who have a pending I-765 application in March, and in April to those in the same classes who are filing an initial I-765. It is anticipating expanding premium processing for students and exchange visitors with pending I-539 applications in May and those in the same classes filing initial applications in June. This is the final phase of premium processing expansion which began with the first phase on June 1, 2022, accepting I-907 premium processing requests for certain cases received in early 2021.
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Trump public charge rule finally killed by Supreme Court?
The Supreme Court on January 9, 2023, denied as improvidently granted a petition for certiorari in Texas v. Cook County, Illinois, 22-234, in which the red states presented two issues (1) Whether petitioner states were entitled to intervene in defense of the inadmissibility on public charge grounds rule when they sought to do so within days of the federal government’s rescindment of the rule by acquiescing in a district court’s nationwide vacatur; and (2) whether petitioners were entitled to either relief from the District Court’s judgment under Federal Rules of Civil Procedure 60 (b)(6) or equitable vacatur of the judgment. This was an attempt to resurrect an effort of 13 states led by Arizona in Arizona v. City and County of San Francisco to gain the right to intervene in a California lawsuit against the Trump rule in which the Biden administration decided not to defend it on appeal and in which the states wanted to intervene on behalf of the government to preserve the rule. In that case, the justices also dismissed as improvidently granted the certiorari petition. So is that the dagger to the Trump public charge concept which would have put the final coffin nail in the Statue of Liberty’s promise to “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”? Unfortunately, no, as the Texas Attorney General Ken Paxton brought suit again on January 5, 2023, in the US District Court, Southern District of Texas, Victoria division, State of Texas v. Alejandro Mayorkas, Civil Action No.6:23-CV-1, claiming that the Biden administration seeks to further its open borders policy by enacting a new agency rule effectively nullifying federal law excluding aliens likely to become public charges. Stay tuned.