Immigration Update – June 13, 2022

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Headlines:

CDC Rescinds Order Requiring Negative COVID-19 Test Before Flight to United States – As of June 12, 2022, air travelers to the United States no longer need to show a negative COVID-19 test result or documentation of recovery before boarding, the Centers for Disease Control and Prevention announced.

State Dept. Removes Required DV Entry Form Passport-Related Details in Response to Court Order – In response to a U.S. district court ruling, the Department of State is removing requirements that principal entrants submitting an electronic diversity visa entry form provide certain information, including the entrant’s unique serial or issuance number associated with the principal entrant’s valid unexpired passport, or claim an exemption to the passport requirement.

DHS Designates Cameroon for Temporary Protected Status – The 18-month registration period began June 7, 2022, and ends on December 7, 2023. An estimated 11,700 individuals may be eligible.

USCIS Corrects Employment Authorization Renewal Receipt Notices – USCIS has printed correction notices for affected applications and expects to complete sending out the notices by the third week of June.

Portability Continued for Certain H-2B Workers Seeking to Change Employers – U.S. Citizenship and Immigration Services announced that portability will continue for petitions received by USCIS through January 24, 2023, for H-2B workers already in the United States.

Visa Bulletin Includes Diversity Immigrant Visa Availability – The Department of State’s Visa Bulletin for July 2022 includes information on diversity visa availability for the months of July and August.

OFLC Announces Rollout of Updated Standard Occupational Classification System – The Office of Foreign Labor Certification will begin using the 2018 Standard Occupational Classification (SOC) system on July 1, 2022, in place of the 2010 SOC system.

Federal Judge Vacates Biden Immigration Enforcement Memorandum – On June 10, 2022, a U.S. district judge vacated the Biden administration’s September 2021 memorandum on immigration enforcement prioritization as “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.”

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CDC Rescinds Order Requiring Negative COVID-19 Test Before Flight to United States

As of June 12, 2022, air travelers to the United States no longer need to show a negative COVID-19 test result or documentation of recovery before boarding, the Centers for Disease Control and Prevention (CDC) announced.

CDC continues to recommend that travelers boarding a flight to the United States get tested for current infection with a viral test as close to the time of departure as possible (no more than 3 days) and not travel if they are sick. CDC said it “continues to evaluate the latest science and state of the pandemic and will reassess the need for a testing requirement if the situation changes.”

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State Dept. Removes Required DV Entry Form Passport-Related Details in Response to Court Order

In response to a U.S. district court ruling, the Department of State is removing from the Code of Federal Regulations amendments published in an interim final rule on June 5, 2019, requiring principal entrants submitting an electronic diversity visa entry form to provide certain information, including the entrant’s unique serial or issuance number associated with the principal entrant’s valid unexpired passport, or claim an exemption to the passport requirement. In E.B. v. U.S. Department of State, No. 19–2856 (D.D.C. Feb. 4, 2022), the court vacated the rule.

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DHS Designates Cameroon for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Cameroon for temporary protected status (TPS) for 18 months, effective June 7, 2022, through December 7, 2023. This designation allows Cameroonian nationals (and individuals having no nationality who last habitually resided in Cameroon) who have continuously resided in the United States since April 14, 2022, and who have been continuously physically present in the United States since June 7, 2022, to apply for TPS. An estimated 11,700 individuals may be eligible, according to U.S Citizenship and Immigration Services.

Cameroon nationals and individuals having no nationality who last habitually resided in Cameroon may submit an initial registration application under the designation of Cameroon for TPS and apply for an employment authorization document (EAD) during the 18-month registration period that began June 7, 2022, and ends on December 7, 2023.

DHS explained that TPS‑based EADs have a category code of A12 or C19. Once USCIS issues a TPS-based EAD, the individual is authorized to work. All employees, including those with a TPS‑related EAD under the TPS designation of Cameroon, must show a document proving they are authorized to work to complete the Form I‑9 verification process.

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USCIS Corrects Employment Authorization Renewal Receipt Notices

U.S. Citizenship and Immigration Services (USCIS) announced that between May 4, 2022, and June 2, 2022, it sent out receipt notices for Form I-765, Application for Employment Authorization, with incorrect information. The incorrect notices included language relating to an extension for certain categories of renewal applicants instead of the correct language about a 540-day automatic extension.

USCIS has printed correction notices for affected applications and expects to complete sending out the notices by the third week of June.

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Portability Continued for Certain H-2B Workers Seeking to Change Employers

U.S. Citizenship and Immigration Services (USCIS) announced that portability will continue for petitions received by USCIS through January 24, 2023, for H-2B workers already in the United States.

On May 18, 2022, the Departments of Homeland Security and Labor published a joint temporary final rule to increase the numerical limits during the second half of FY 2022 for H-2B nonimmigrant visas and continue to provide portability flexibility for H-2B workers already in the United States. The rule allows an H-2B worker who is already in the U.S. to begin work immediately with a new employer after an H-2B petition (supported by a valid temporary labor certification is received by USCIS and before it is approved.

A temporary final rule published in January currently provides portability.

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Visa Bulletin Includes Diversity Immigrant Visa Availability

The Department of State’s Visa Bulletin for July 2022 includes information on diversity visa availability for the months of July and August.

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OFLC Announces Rollout of Updated Standard Occupational Classification System

The Department of Labor’s Office of Foreign Labor Certification (OFLC) will begin using the 2018 Standard Occupational Classification (SOC) system on July 1, 2022, in place of the 2010 SOC system. Since September 1999, the Occupational Employment and Wage Statistics program has used the SOC system to classify occupational wage information. The SOC provides a common language for categorizing occupations and serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET).

OFLC’s National Prevailing Wage Center (NPWC) will host a webinar on the implementation of the 2018 Standard Occupational Classification (SOC) system on Tuesday, June 21, 2022, from 1 to 3 pm ET. During the webinar, the NWPC will present background and an implementation timeline, and will review how the new classification will affect Prevailing Wage Determinations. This event will be recorded and all materials will be placed on the Prevailing Wage tab of the OFLC’s website for future access.

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Federal Judge Vacates Biden Immigration Enforcement Memorandum

On June 10, 2022, a U.S. district judge in the Southern District of Texas vacated the Biden administration’s September 2021 memorandum on immigration enforcement prioritization as “arbitrary and capricious, contrary to law, and failing to observe procedure under the Administrative Procedure Act.” Judge Drew Tipton said the core of the dispute was “whether the Executive Branch may require its officials to act in a manner that conflicts with a statutory mandate imposed by Congress. It may not.”

The states of Texas and Louisiana argued that the memorandum conflicted with detention mandates under federal law. The judge noted that in the 1990s, Congress reined in the Executive Branch’s discretion by mandating detention of criminal aliens or those with final orders of removal: “The wisdom of the statute passed by Congress and signed into law by the President has no bearing here. The passions of the present sometimes conflict with the views of the past. But the law remains unless it is repealed or replaced. And the two statutes at issue in this case are still the law of the land.” Although the Executive Branch has “case-by-case discretion to abandon immigration enforcement as to a particular individual,” the judge said, this case “does not involve individualized decisionmaking. Instead, this case is about a rule that binds Department of Homeland Security officials in a generalized, prospective manner” in contravention of Congress’s detention mandate. Further, although it is true that the Executive Branch “may prioritize its resources,” it “must do so within the bounds set by Congress.” Accepting the Executive Branch’s position invoking “discretion” and “prioritization” would have “profound consequences for the separation of powers,” the judge said.

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