Written by Hannah F. Little, Esq., Managing Partner, N.C. Board Certified Immigration Law Specialist.
The environment around immigration law evolved substantially over the last few years, resultant from the COVID-19 pandemic, the broader political climate and other factors.
While 2022 represented, to some extent, with a contraction of pandemic measures and implementation of new policies, a reversion to a more normalized framework around immigration issues, significant challenges in the legal landscape remain as we approach 2023.
Below is a summary of policies and procedures that impacted immigration in 2022 and a look at prospects for 2023.
Generally, United States Citizenship and Immigration Services (USCIS) is limited to issuing 140,000 employment-based green cards per fiscal year. Yet, the organization announced in late October that it had awarded more than 275,000 in FY2022.
The 135,000-plus green cards were added to the cap because of unused family-based visas in FY2021. USCIS said more than 220,000 employment-based adjustment of status (AOS) applications had also been granted in the latest fiscal year.
There will be approximately 197,000 employment-based green cards available in FY2023 because of unused family-based green cards in FY2022, according to USCIS.
Other updates regarding employment-based visas include:
USCIS implemented new policies in late March intended to reduce “burdens to the overall legal immigration system.”
The measures attempted to reduce processing backlogs stemming from the COVID-19 pandemic and multiple other factors.
The organization also introduced new “internal cycle time goals,” a metric used to determine the number of active and pending cases, as well the processing time for each application.
Despite the actions, backlogs continue to cause excessive processing and wait times at USCIS throughout 2022. For example, the listed case processing time at year-end for a Form I-140, Immigrant Petition for Alien Worker for a multinational executive or manager at the Texas Service Center was 14.5 months.
Meanwhile, a Form 1-485, Application to Register Permanent Residence or Adjust Status, petition currently requires 29 months to process at the California Service Center.
While this represents a slight improvement from year-end 2021, USCIS has been unable to improve processing times systemically across its domain, with huge variations in processing times depending on specific service center and type of petition filed.
Garfinkel Immigration Law Firm continues to work with clients to develop the most cost-effective and efficient strategies to overcome the backlogs and delays at USCIS, including litigation in several urgent and extreme cases. Individuals considering filing a petition with USCIS should consult with experienced immigration counsel to discuss their options.
PERM, which is often the first step in the sponsorship process for employers seeking a green card for an employee, has been impacted by both the COVID-19 pandemic as well as salary-range requirement laws passed by certain states and municipalities in 2022.
Remote work, COVID-19 vaccination requirements and other changes related to the pandemic have modified some aspects of the electronically filed, attestation-based application submitted to the U.S. Department of Labor (DOL) following a test of the labor market.
Moreover, new wage transparency laws in New York City and elsewhere, which require employees to list a salary range either in the job posting or upon request (depending on the governing agency), have added an additional layer to the PERM process and its recruitment requirements. Job postings and the labor market test must comply with not only federal laws, but state and local laws, as well.
FURTHER READING: How COVID-19, other legal changes have impacted the PERM process
International travel and COVID-19
Many countries eased their COVID-19 related travel restrictions throughout 2022.
For example, Japan recently relaxed their mandate for international travelers, who are now only required to show proof of an applicable vaccination series or proof of a negative COVID-19 test taken within 72 hours of boarding their flight.
Additionally, the United States has lifted some of their COVID-19 restrictions for inbound travelers, while others remain in place. Further information can be found below.
A vaccine requirement continues to remain in place for all international travelers entering the United States. All non-U.S. citizens and non-permanent residents must show proof they are “fully vaccinated” to their airline before boarding their flight, and then again to Customs and Border Protection (CBP).
Individuals are considered “fully vaccinated” two weeks after receiving the recommended dose(s) of a vaccine approved/authorized by the Food and Drug Administration (FDA) or listed for emergency use by the World Health Organization (WHO).
As of Dec. 6, 2022, those vaccines include:
- Comirnaty (Pfizer-BioNTech)
- Spikevax (Moderna)
- Convidecia (CanSinoBIO)
- Vaxzevria (AstraZeneca)
- Nuvaxovid (Novavax)
Multiple forms of proof of vaccination are accepted. Individuals can provide a vaccination certificate with a QR code or a digital pass via a smartphone application with a QR code. They also can display a printout of a COVID-19 vaccination record, or a COVID-19 vaccination certificate issued by an authorized vaccine provider; digital photos of a vaccination card/record; a downloaded vaccine record or vaccination certificate from an official source; or a mobile phone application without a QR code, according to the Centers for Disease Control and Prevention (CDC).
In addition, travelers still must provide contact information, including their full name, address while in the United States, phone number and email address, to their airline for contact tracing purposes.
The United States lifted its testing mandate earlier this year for all inbound air travelers.
Beginning in Jan. 2021, all individuals entering the United States via air were required to test negative for COVID-19 before boarding an aircraft. The order applied to all air travelers, including American citizens and legal permanent residents, with limited exceptions.
However, the Biden administration rescinded the requirement on June 12.
“The COVID-19 pandemic has now shifted to a new phase, due to the widespread uptake of highly effective COVID-19 vaccines, the availability of effective therapeutics, and the accrual of high rates of vaccine- and infection-induced immunity at the population level in the United States,” the CDC said in a press release announcing the decision. “Each of these measures has contributed to lower risk of severe disease and death across the United States. As a result, this requirement which was needed at an earlier stage in the pandemic may be withdrawn.”
State Department backlogs
International travelers should also be aware of backlogs currently plaguing U.S. embassies and consulates across the globe, which have built because of staffing issues and other factors related to the COVID-19 pandemic.
While there have been some improvements over the course of 2022, these delays will continue to cause challenges scheduling visa appointments at certain posts, specifically embassies and consulates in India.
This could have the potential to impact certain international travel plans in 2023.
Garfinkel Immigration Law Firm continues to monitor the situation closely. Individuals with questions or concerns regarding the backlogs at embassies and consulates should contact experienced immigration counsel.
Multiple new “humanitarian” initiatives were introduced by the Biden administration over the last calendar year. They include:
Temporary Protected Status for Afghan nationals and “Operation Allies Welcome”
The Department of Homeland Security (DHS) designated Afghanistan for Temporary Protected Status (TPS) in March 2022 following the United States military withdrawal from the country. The designation will be in place for at least 18 months, with the potential for multiple extensions. Temporary Protected Status does not provide a pathway to citizenship.
Additionally, the Biden administration had previously launched in late 2021 “Operation Allies Welcome,” which was designed to “support vulnerable Afghans … as they safely resettle in the United States.”
“Operation Allies Welcome” allows individuals evacuated from Afghanistan to be admitted into the United States via humanitarian parole. Many recipients are eligible for benefits through United States Citizenship and Immigration Services.
Certain Afghan Nationals who were employed “by or on behalf” of the U.S. government are also eligible for green cards through the special immigrant visa program.
Uniting for Ukraine
The United States also announced the “Uniting for Ukraine” program in early 2022 following Russia’s invasion of the country. The initiative went into effect on April 25, 2022, and streamlined the process for granting Ukrainians humanitarian parole.
In order to be eligible for the program, Ukrainians must:
- Have been residents of Ukraine as of February 11, 2022
- Have a sponsor in the United States
- Have completed vaccinations and other public health requirements
- Pass biometric screening and security checks
Individuals paroled into the United States via the “Uniting for Ukraine” initiative are authorized to work incidental to their status.
The Biden administration has committed to accepting up to 100,000 displaced Ukrainians.
New process for individuals from Venezuela to enter U.S.
Furthermore, the Biden administration also introduced a new process that “allows Venezuelan nationals and their immediate family members to come to the United States.”
The program, which was implemented for “urgent humanitarian reasons and significant public benefit,” enables Venezuelans to receive authorization to travel to and enter the United States via parole for a period of no more than two years.
To apply to enter the United States, according to USCIS, Venezuelans must:
- Have a supporter in the United States
- Pass a security check
- Meet all eligibility criteria
- Warrant a “favorable exercise of discretion”
The future of the DACA program remains unresolved heading into 2023 because of various court rulings in the last calendar year.
In 2021, a district judge from the United States District Court for the Southern District of Texas, ruled that the executive branch did not have “free rein to grant lawful presence outside the ambit of the statutory scheme” when the program was originally created by Former President Barack Obama in 2012.
That ruling enjoined USCIS from approving new applications for DACA but did not revoke employment authorization and deportation relief for current recipients.
The Biden administration appealed that ruling and both sides presented arguments to the U.S. Court of Appeals for the Fifth Circuit in early July 2022.
Almost simultaneously, the Biden administration issued a final rule designed to protect DACA by officially codifying the program into the Federal Register. The rule’s main purpose was to respond to the finding that DACA was implemented “outside the ambit of the statutory scheme.”
Shortly after the rule was released, the U.S. Court of Appeals for the Fifth Circuit released its ruling, upholding the district judge’s finding. But the Fifth Circuit did not end DACA in its entirety, instead sending the case back to the United States District Court for the Southern District of Texas to review the final rule from the Biden administration.
The United States District Court for the Southern District of Texas has yet to release an updated ruling regarding DACA as of December 2022. That finding could have a long-lasting impact on the program and lead to the case being presented before the Supreme Court.
Outlook for 2023
National political leadership remains deeply divided in the United States. With a Democratic Senate and a Republican House, and with the narrowest of margins in each legislative body, passage of substantive or broad legislation is extremely unlikely. Democrats appear to be positioning to establish permanent protection for Dreamers by codifying DACA in the lame-duck session of Congress. However, even that modest goal, on which a substantial majority of Americans are aligned, may be elusive in the current divided Congress.
We can reasonably expect that any practical changes in the immigration environment in 2023-24 will occur through administrative actions within the various government agencies or, less probable, through Executive Action. The President has limited Constitutional authority to act without Congress, and Congress is very unlikely to pass, or even consider, legislation on the always-divisive issues around immigration.
There was a mix of success and struggle in the immigration world in 2022.
Most international travel restrictions were eased, and 275,000 employment-based green cards were issued. Several new “humanitarian” initiatives were also implemented by the Biden administration.
On the other hand, both USCIS and the U.S. Department of State are still working through backlogs, which continue to cause frustrating case-adjudication delays, and the future of the DACA program continues to remain unclear.
The attorneys at Garfinkel Immigration Law Firm are monitoring the immigration landscape closely and will continue to alert clients with updates as circumstances warrant in 2023.