TPS Policy Update
On Nov. 10, 2022, the Department of Homeland Security (DHS) posted a Federal Register Notice announcing the continuation of Temporary Protected Status (TPS) and certain related documents for beneficiaries under the TPS designations that remain subject to the court orders in the Ramos et al. v. Nielsen and Bhattarai et al. v. Nielsen et al. lawsuits.
TPS beneficiaries under the designations for El Salvador, Honduras, Nicaragua, and Nepal, as well as the 2011 Haiti designation and the 2013 Sudan designation will retain their TPS while the preliminary injunction in Ramos and the stay of proceedings order in Bhattarai remain in effect, provided they continue to meet all the individual requirements for TPS eligibility.
The automatic extension of TPS-related documentation includes specified Employment Authorization Documents (EADs) through June 30, 2024.
These current beneficiaries do not need to pay a fee or file any application to maintain their TPS and have their TPS-related documentation automatically extended.
Beneficiaries who want a new EAD with the expiration date of June 30, 2024, displayed on the EAD must file Form I-765, Application for Employment Authorization, along with the filing fee or a fee waiver. The Federal Register Notice explains how TPS beneficiaries, their employers and benefit-granting agencies may determine which EADs are automatically extended for the beneficiaries.
Individuals who were newly granted TPS under the 2021 TPS designation of Haiti or the 2022 TPS designation of Sudan, but who did not have TPS under the 2011 Haiti designation or the 2013 Sudan designation, are not covered by this litigation compliance notice. Their TPS grants remain valid in accordance with their individual notices of approval from USCIS. In order to receive TPS under the new Haiti or Sudan designations, eligible individuals must apply before the close of the registration periods on Feb. 3, 2023, and Oct. 19, 2023, respectively.
TPS Travel Policy Update
The government announced that they are updating the Temporary Protected Status (TPS) policy to address the proper mechanism for authorizing travel and how such travel might affect their eligibility for adjustment of status.
What will the update do?
To be eligible for adjustment of status, a noncitizen must have been inspected and admitted or inspected and paroled into the United States, unless exempt from this requirement. On June 7, 2021, the U.S. Supreme Court upheld the interpretation that a noncitizen who enters the United States without having been inspected and admitted or inspected and paroled, and who is subsequently granted TPS, generally does not meet this requirement. The government is updating its guidance to reflect the decision of the Supreme Court. The update further clarifies that if a TPS beneficiary is inspected and admitted into TPS following a return from authorized travel, this meets the requirements for adjustment of status.
Ethiopia TPS Designation
On April 28, 2022, a letter was sent to urge the Biden Administration to extent TPS to Ethiopians fleeing the ongoing civil war. For over a year, international non-governmental organizations in Ethiopia have documented severe famine conditions, sexual violence as a weapon of war, crumbling infrastructure, and more.
On October 21, 2022, the government announced that Ethiopians who were in the U.S. as of October 20, 2022, whether on student visas or tourist visas or in the country without proper documentation, will be eligible to apply for TPS. An estimated 26,700 Ethiopians will be eligible to apply for the protection. Stay tuned for more regarding this update.
Who is eligible under Ethiopia’s designation for TPS?
Individuals who are eligible for TPS under this designation must have continuously resided in the United States since October 20, 2022. Individuals who attempt to travel to the United States after October 20, 2022 will not be eligible for TPS under this designation.
Ethiopia’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.
H-2B Visa Expansion
In October 2022, Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced that it will be issuing a regulation that will make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2023, on top of the 66,000 H-2B visas that are normally available each fiscal year. By making these supplemental visas available at the outset of the fiscal year, which began on October 1, 2022, DHS is acting to address employers’ needs for additional seasonal workers. At the same time, DHS and DOL are working together to institute robust protections for U.S. and foreign workers alike, including by ensuring that employers first seek out and recruit American workers for the jobs to be filled, as the visa program requires, and that foreign workers hired are not exploited by unscrupulous employers. To strengthen these efforts, DHS and DOL also announced the creation of a new White House-convened Worker Protection Taskforce.
The H-2B supplemental includes an allocation of 20,000 visas to workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. In addition to the 20,000 visas reserved for nationals of Haiti and the Northern Central American countries, the remaining 44,716 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The regulation will allocate these remaining supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season.
The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature, such as a one-time occurrence, seasonal need, or intermittent need. Employers seeking H-2B workers must take a series of steps to test the U.S. labor market. They must also certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available to perform the temporary work for which they seek a prospective foreign worker. In addition, employers must certify that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
TN Reciprocity Fee Update
In June 2022, the Department of State expanded its TN visa options for citizens of Mexico and updated the visa reciprocity schedule to include the TN visa category. Prior to this, the Department of State did not have a reciprocity fee schedule for TN visas. The only payment made was the nonimmigrant visa application fee (“the MRV fee”) of $160 USD. Now, once applicants attend their visa interview and are approved, consular officers will give them the opportunity to choose between a 1-year visa stamp option and a 4-year visa stamp option.
The 1-year visa will cost $104 USD, payable per every individual recipient (TN and TD dependents). The 4-year visa will cost $382 USD per individual recipient.
Please note that while there are now two visa stamp options, the maximum time of entry in TN status remains unchanged at 3 years.
Visa Bulletin Update – November 2022
Chart A. Final Action Dates
On the chart below, the listing of a date for any category indicates that the class is oversubscribed, and that there is a wait time for immigrant visas (“green cards”) in that category from the indicated country. "C" means current, i.e., numbers are authorized for issuance to all qualified applicants from that country. Please note that India continues to have long wait times, as the final action dates for both the EB-2 and EB-3 categories remains backed up until April 2012 after the retrogression in EB-2 availability that occurred in October 2022.
