As published in the Immigration Daily on January 30, 2023

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

Q&A’s published on the World Journal Weekly on January 29, 2023 1. Biometrics appointment for I-131 still needed? 2. I-751 was submitted and fingerprints were taken. How long is the wait time?

1. Biometrics appointment for I-131 still needed?

I filed I-131 and it was accepted, and the fee taken. I have not received a biometrics letter but the status is updated to fingerprints taken. Does this mean they are using biometrics from a previous application and I do not need to wait for a biometrics appointment before leaving the US? The status on my I-131 case said, “As of XX, 2022, fingerprints relating to your Form I-131, Application for Travel Document, Receipt Number XXX, have been applied to your case.”

Mr. Lee answers,
USCIS is attempting in as many ways as it can to reduce backlogs that were caused by the pandemic and the Trump administration. Part of the effort is to reuse the biometrics whenever it can since fingerprints do not change over time. Either you failed to completely read one of the notices saying that the agency would reuse your biometrics or USCIS failed to send that one out or it was lost in the mail. The notice that you now have seems pretty clear in indicating that the agency will reuse your biometrics.

2. I-751 was submitted and finger prints were taken. How long is the wait time?

My Case, removal of conditions for the green card was submitted on 01-06-2021 my green card was expired on 01-20-2021. I received a notice for an extension of 24 months after my case was submitted which will expire in Jan 2023. My case was sent to Potomac service center, should I need a raise a E-request to process my pending case.

Mr. Lee answers,

If the notation of resident status on the I-751 receipt is close to expiration, the recommended path is to communicate with the USCIS Contact Center and arrange an infopass with the local USCIS field office so that you can present your passport and receive an I-551 ADIT stamp continuing your resident status during the time that USCIS is adjudicating your I-751 petition. USCIS will generally not expedite an application or petition on the basis that the individual’s status is expiring, especially where there is another path.


As published in the Immigration Daily on January 23, 2023

As we move into 2023 and the continuing threats to the economy, part of the answer to our problem is unsurprisingly – more immigration. Japan is a prime example of a closed society with declining birth rates and unwillingness to allow immigration which now finds itself with abandoned towns and villages, an aged population working into the 70s, and overreliance on overseas manufacturing. China may soon find itself in the same boat of an aged non-vibrant workforce as its population shrank for the first time in over 60 years in 2022, the total number of migrants to other countries far exceeds its intake of people coming into it, the long-term effects of its one child policy and current reluctance of females there to have larger families further depresses the population, and its workforce is rapidly aging with nearly 1/3 expected to be over 60 by 2035 (China’s official retirement age is 60 for men and 55 for women and although there is some movement to advance the retirement age, it is receiving resistance from those worried about the effect upon pensions and their desire to spend time with family).

The US fertility rate of approximately 1.7 births per female cannot sustain American greatness, as that is below the replacement rate of 2.1 required for the US population not to shrink without increases in immigration.

Support for increased immigration was voiced by Federal Reserve Chief Jerome Powell during a December 14 news conference that “Our labor force should be 3 ½ million more than it is”, and asking himself why is that, said “Part of it is just accelerated retirements – people dropped out and aren’t coming back at a higher rate than expected. Part of it is… Close to half a million who would have been working died from Covid. And part of it is that migration has been lower. It’s not our job to prescribe things, but I think if you asked businesses, pretty much everybody you talk to says,’ There aren’t enough people. We need more people.’” Citing Bureau of Labor Statistics data, the New York Times in the December 27, 2022, article, “Retirees Are One Reason the Fed Has Given up on a Big Worker Rebound” said that “Among those 65 and up, on the other hand, participation lags well below its prepandemic level, the equivalent of a decline of about 900,000 people. That has helped to keep overall participation steadily lower than it was in 2020.”

These are big numbers. The lack of workers is driving costs upwards for everyone due to inability to make things run smoothly in manufacturing, the supply chain, service industry, etc. The bidding war for workers is also a large factor forcing producers to keep raising prices with spiraling inflationary effects. The Fed’s only solution at present is to keep raising interest rates to make it more difficult for companies to borrow for their needs, which in turn forces them to lay off workers, with the anticipated ripple effect of US workers and their families having to cut back on purchases so that demand does not continue to exceed available supplies.

The US needs a younger population of workers, and those that are coming over with their families from other countries are usually the young and ambitious unafraid to leave their home countries.

We are not advocating open borders as there must be control over the numbers allowed into the country. That situation is amply demonstrated by the situation at the southwestern border. But the US must become a more generous nation in its immigration policies toward employment based, family-based, and refugee/asylum based. A good example of possible positive legislation could be an EAGLE (Equal Access to Green Cards for Legal Employment) Act (which last year proposed to lift individual country quota limits without increasing visa numbers) being proposed this year with an increase in numbers so that countries are not fighting each other over the quota limits. Imposing order over the southwestern border through the Biden administration proposal to control it through a 30,000 per month two-year parole program could also help in the revitalization of the workforce. Hiking of H-1B cap numbers for workers in specialized occupations could also help as over 400,000 applications for registration last year vied for 85,000 slots.

Yet the reaction from Republicans and conservatives to positive changes in immigration law in the 118th Congress has so far been poisonous in seeking a restrictive agenda starting with the soon to be introduced “Border Safety and Security Act” and quoting their words “We Must Secure the Southern Border” without any ameliorative provisions.

Public opinion must be on the side of more immigration for the sake of the country. Recognition of the role of immigration in keeping the nation strong should be the overriding factor, and not the demonization of immigrants. A good place to start would be recognizing the contributions of the DREAMERS, children brought into this country who have been educated here and have contributed to the US in many occupations, including those most hazardous during Covid-19’s most deadly period. A continuous push should be made to give them permanent status and not have them continue being used as the ultimate bargaining chip in immigration negotiations. The Congress could then move on from there to other deserving or needed groups.

Q&A’s published on the World Journal Weekly on January 22, 2023 1. Can I acquire any type of citizenship or permanent residency from my deceased US citizen father? 2. Sibling info on Green Card for parents 3. Can immigration officers look past inadmissibility? 4. Can I keep using my STEM OPT EAD even though I get my C9 EAD?

1. Can I acquire any type of citizenship or permanent residency from my deceased US citizen father?

I was born in 1977 and my father was born in the 1950s. He acquired his green card when he retired from working for the us government in the Panama Canal for 20+ years. We then moved to the us in 2007 and he filed a form I-130 and form I-485 petitioning for me, his married daughter over 21 years old, this was obviously denied because when he first filed he was a permanent resident at the time and our lawyer was an inexperienced scam artist who knew that I didn’t meet the requirements but still decided to submit the application and take thousands of dollars. My father became a naturalized US citizen in 2016 but I never submitted another application because I was waiting to hear back on the first one. However, my father ended up passing away in 2021 and only a few months after did I finally get a response that my application was denied. Since my father passed I am not sure if I am able to re submit another application although I do have an approved form I-130. What can be done?

Mr. Lee answers,
Your fact situation is confusing to me as you say that the application was denied, that you did not file another application, but that you do have an approved form I-130. The confusion lies in your stating that your father filed for you, a married person, when he only had the green card – and that would be a filing that does not conform with the law of eligibility.

Nevertheless, assuming that an I-130 petition was approved at some point for you prior to the time of your father’s passing away, and you were in the US at the time, that petition might be a basis for a permanent residence application. As the facts are unclear, I suggest that you should consult with an immigration lawyer to go over your entire situation and for him or her to explore with you any steps that might be able to be taken. 

2. Sibling info on GC for parents

If I am applying for parents Immigrant visa, do I put the info for my other siblings who are all over 21 years of age, and not being applied for on the Family section of the petition for Alien Relative, my sibling is a GC holder via employment.

Mr. Lee answers,
In our office, we usually put all sons and daughters of the beneficiaries on the I-130 form. I note that the form itself does not limit the term “children” although the Immigration and Nationality Act defines children as being under the age of 21 and unmarried. Also, the form instructions refer to both “unmarried children” and “married children”. Additionally, some of our clients are uncomfortable with the idea of leaving out any of the 21+-year-old children, and so we generally include them. If there is a reason for which our clients do not wish to mention such children, we will leave them out. 

3. Can immigration officers look past inadmissibility?

My father is currently in China waiting for his interview appointment. He went back to China two years ago. My mom is a citizen and sponsoring. I believe he will be found inadmissible and have to file for a waiver because he reentered the US after being deported in the 90s. He has no criminal record and started his own business while living in the US. He says that there is a chance that the immigration officer has the right to overlook his inadmissibility and approve him for a green card? Is this possible?

Mr. Lee answers,
A US consular officer does not have the authority to overlook grounds of inadmissibility. If your father was deported previously, one question is whether he served out the entire time of the bar before coming back to the US. When he reentered the US, did he enter legally or illegally? If he entered illegally before April 1, 1997, he would be eligible to file waiver applications after his interview with the US consulate. On the other hand, if he reentered illegally on or after that date, he would have incurred a permanent bar under which he will not be able to request permission to return to the US as an immigrant until 10 years after he left the US a couple of years ago. The granting of permission to reapply at that point would be in the discretion of the Attorney General.

4. Can I keep using my STEM OPT EAD even though I get my C9 EAD?

I have a valid STEM OPT EAD until 2024. I am going to apply for an adjustment of status soon to obtain a marriage based green card. When I get the c9 EAD in hand while the I-485 is pending, can I still keep using my STEM OPT card? Or should I use my C9 EAD because I applied for an adjustment of status?

Mr. Lee answers,

I do not believe that it makes much difference which EAD you will be using. You are authorized to work under your STEM EAD and that is not revoked by your applying for adjustment of status and obtaining employment authorization (C )(9) on the basis of that. However, please note that the STEM EAD is tied to the field of your degree while a (C )(9) EAD is open market and can be used for any employment.