Article: “IMMIGRATION NEWS THAT YOU CAN USE: USCIS DOES THIRD ROUND OF H-1B PICKS FOR FIRST TIME; FILING ADDRESSES EXTREMELY IMPORTANT TO PAY ATTENTION TO; EAD CHANGES FOR H-4, L AND E DEPENDENTS; DECEMBER VISA CHART HOLDS A FEW BRIGHT SPOTS; NEW YORK DISTRICT OFFICE/CONTACT CENTER MEETING POINTS.”

As published in the Immigration Daily on November 23, 2021

  1. USCIS does third round of H-1B picks for first time.

USCIS surprised just about everyone in holding a third round of H-1B selections for fiscal year (FY) 2022 on November 19, 2021, over a month and a half after the beginning of the fiscal year on October 1, 2021. In FY-2021, the agency conducted two rounds, and with the large number of H-1B registrants for this year (308,613 for the 85,000 slots), it was assumed that the second round in July 2021 was the final word. This was a happy surprise for organizations and those selectees now willing and able to move forward with H-1B processing. The downside is that a number of organizations may not be so willing and able to sponsor as they were earlier in the year and that the selectees may have moved on to other jobs, gone back to school, taken other nonimmigrant/immigrant options, or left the country. Nevertheless, the third round will solve problems for a number of individuals whose statuses are or may become questionable. Notice was given to petitioners’ attorneys/representatives and petitioning organizations on their myUSCIS accounts including details on when and where to file. Petitioning organizations have from November 22, 2021 until February 23, 2022, to file petitions with USCIS.

  1. Filing addresses extremely important to pay attention to.

USCIS announced that it is planning to open a new lockbox in Elgin, Illinois, next year; that now certain adjustment of status applicants submit their applications to the Phoenix lockbox instead of the Chicago or Dallas lockbox; that it has streamlined filing locations for certain employment based forms to a single lockbox location and that people can find the latest filing instructions on I-130, I-131, I-360, I-485, I-601, I-765, I-824, and I-864 pages; that in the coming year, USCIS is planning a few more filing location changes and will direct some family-based adjustment of status applications to Dallas; and that next summer, USCIS will move the lockbox facility in Arizona from Phoenix to Tempe. So the watchword for all is to check the filing locations for every petition or application going out!

  1. EAD changes for H-4, L and E dependents.

On the heels of the H-4 and L dependent spouse automatic extension EAD settlement in Shergill, et al v. Mayorkas, 2:21-cv-01296 (WD Wash 11/10/21), USCIS issued a policy alert on November 12, 2021, “Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses”, PA-2021-25, on the procedures to follow for three nonimmigrant classes of spouses, H-4, E, and L –that all of them are eligible for automatic EAD extensions of work authorizations if they properly filed an application to renew their EADs before expiration and have an unexpired I-94 form showing their status as H-4, E, or L nonimmigrant. The automatic extension continues until the earlier of 180 days from date of expiration of the previous EAD, end date of the I-94 showing valid status, or the approval or denial of the EAD renewal application. For automatic extension of the previous EAD, employers for I-9 purposes need to see the form I-94 indicating the unexpired nonimmigrant status, I-797C receipt for timely filed EAD renewal application stating “Class requested” as “(a)(17)”, “(a)(18)”, or “(c)(26)”, and facially expired EAD issued under the same category.

The policy alert also provides that E and L dependent spouses are employment authorized incident to their status and are no longer required to request employment authorization by filing for I-765 but may continue to file form I-765 if they choose to receive an EAD. The problem with the new policy for E and L dependent spouses is that at present, there are no distinguishing markers on their I-94’s to distinguish them from children, and so on until USCIS can implement changes to the I-94 to distinguish them, an I-94 solely indicating H or L nonimmigrant status is insufficient evidence of employment authorization under list C of the I-9 form. So until that time, E and L spouses still need to rely upon an EAD as evidence of employment authorization. USCIS noted that three classes of E dependents are not recognized under the new policy – spouses of employees of the Taipei Economic and Cultural Representative Office (TECRO) and Taipei Economic and Cultural Offices (TECO) must continue to apply for EAD’s under 8 CFR 274a .12(c)(2); spouses of long-term investors in the Commonwealth of the Northern Mariana Islands under 8 CFR 274a .12(c)(12); and spouses of E-2 CNMI investors who obtained such status based upon a Foreign Retiree Investment Certificate are not eligible for work authorization.

  1. December visa chart holds a few bright spots.

A few bright spots in the December visa chart were the advances in the Mexico family-based categories, EB-5 open availability for direct investments for all countries, and China’s advance in EB-2 and EB-3W categories under dates for filing. Both family-based (FB) charts remained the same except for final action dates for Mexico that moved from 1-4 months and for dates for filing F-2A advancing worldwide to 9/1/21 (unimportant as the category is open under the final action dates chart and USCIS allows that date to be used for filing purposes), and Mexico preferences advancing 0-4 months; employment based (EB) final action dates remained current worldwide* except for regional center investments under EB-5 being unavailable for all countries, China moved one and a half months in EB-2 to1/1/19, and EB-3W (other workers) two years to 3/1/12; and India EB-2 advanced six months to 5/1/12 (not especially helpful for most Indian cases that had already downgraded to EB-3 in 2020 when the availability date reached 1/1/15); in EB dates of filing, China’s EB-2 advanced two months to 4/1/19, EB-3W 5 years to 5/1/15, and EB-5 direct for all countries including China became current. EB-5 regional investment cases remain unavailable as there is no implementing legislation. (Unless investors are involved in direct EB-5 investments (only about 5% of investors), the EB-5 movement in the December visa chart was not very exciting).

For the month, USCIS is allowing final action dates to be used for the F-2A category, and dates for filing for both FB and EB categories.

*Worldwide here meaning all but oversubscribed countries China and India (EB-1 to EB-3) and El Salvador, Guatemala, Honduras, and Mexico (EB-4 religious cases).

  1. New York District Office/Contact Center meeting points.

The Contact Center meeting of 10/21/21 was reported by the New York chapter of the American Immigration Lawyers Association (AILA), and the following are some interesting items which readers may or may not know in working with the Center:

  • Urgent inquiries for the Center to call back are up to 72 hours, but currently 48 hours.
  • Cases classified as nonurgent for the Center are up to 30 days for callback, but currently 20 days.
  • Representatives are supposed to take two phone numbers.
  • For cases without receipt numbers, the attorney/representative should state that the inquiry is for a specific filing that doesn’t have a receipt number and tier 1 will escalate to tier 2 to research/special handling and then generate a service request to the office where the case is pending.
  • While a tier 1 officer should provide the name and the agent ID number, a tier 2 immigration services officer (ISO) only needs to provide the last name.
  • On biometrics appointments where the person is turned away because the ID is not sufficient or for other reasons, the person should contact USCIS and let them know why the biometrics was not collected on the scheduled date and the officers would try to accommodate.
  • Good cause for rescheduling biometrics appointments may include but are not limited to medical reasons, employment reasons, necessary travel, travel that was previously planned, coverage on the job (people cannot take a particular day off), illness/Covid.
  • The Contact Center encourages applicants to use their myUSCIS account to request rescheduling.
  • On callbacks, representatives can ask about another two cases when they receive a call back.
  • It was confirmed that USCIS is not speaking to paralegals, only to the lawyer on the G-28 authorization of representation.

Happy Thanksgiving to all!

Article: “IMMIGRATION NEWS THAT YOU CAN USE – NATURALIZATION PRACTICE AND PROCEDURE; THE NOVEMBER RETROGRESSIVE VISA CHART; H-1B BY HIGHEST SALARY STILL BEING ADVOCATED BY BIDEN ADMINISTRATION; BAN ON TRAVEL FROM CANADA AND MEXICO ENDING IN STAGES; NEW YORK STATE AND FEDERAL GOVERNMENT EFFORTS TO PROTECT IMMIGRANTS.”

As published in the Immigration Daily on October 19, 2021

  1. Naturalization practice and procedure

Q&A’s from the CIS Ombudsman’s webinar on naturalization and immigrant integration on 6/23/21 gave the following:

  • Demonstrating the general usage of tablets for naturalization applicants’ reading and writing tests, the question was how naturalization applicants can request to take the reading and writing tests on paper with the answer being a variety of ways including through the Contact Center, online at uscis.gov/accommodations, or by asking the field office at any time during the naturalization process.
  • On how common video interviews are becoming in USCIS field offices, the question was how citizenship educators can find out if their local field office is conducting video interviews so they can prepare students, the answer being that the use of video interviews varies across offices based on determinations that consider a variety of factors, such as office capacity, office workloads, and health and safety considerations; that select USCIS offices began testing in person video interview technology in June 2020; the testing was successful, and USCIS has now conducted video interviews in all USCIS field offices.

From the New York District office/stakeholders liaison meeting of 9/29/21:

  • There was an interesting question as to what the District would do in an N-400 case where the person had a green card that expired prior to filing the N-400 or during the pendency of the application. The first answer was that the person had to file form I-90 even if that person filed for naturalization as the law required that a person have a valid green card in all times. In a later follow-up question as to whether lack of the green card would cause the immigration officer not to adjudicate the N-400, the District answer was that the lack would have no effect since not having a green card had nothing to do with good moral character.

 

  1. The retrogressive visa chart for November

While FB (family-based) dates of filing and final action dates in the November visa chart were the same as in October, EB (employment based) dates of filing and final action dates for China and India took a big hit in the EB-3 category – Final action dates: EB-3 China retrogressed from 1/8/19 to 3/22/18 and India from 1/1/14 to 1/15/12. There is little solace that the EB-2 China date advanced from 7/1/18 to 11/15/18 and India from 9/1/11 to 12/1/11 as those dates had been reached for the vast majority of EB-2 to EB-3 downgraded petitions. Dates of filing: EB-3 China moved backwards from 1/15/19 to 4/1/18 and India from 1/8/14 to 1/22/12. There is some solace that China’s EB-2 date of filing advanced from 9/1/18 to 2/1/19 as that is an advance over past usable visa availability dates for China EB-2 and EB-3 categories, but the India EB-2 move from 7/8/12 to 1/8/13 provided little solace except for those that could not downgrade to EB-3 previously.

What reason(s) can be ascribed for the retrogression? The November visa bulletin section on page 8 said, “This is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases.”

An article in the 10/6/21 Immigration Daily, “The Biden Administration Let over 200,000 Green Cards Go to Waste This Year” by Walter Ewing, charges that roughly 150,000 FB and as many as 80,000 EB immigrant visas went unused by September 30 – that while the 150,000 FB IV numbers can go to the EB category for the next year (regular quota of 140,000+150,000 FB numbers = 290,000 for use in FY 2022), the 80,000 EB numbers went to waste. Mr. Ewing pointed out that in FY 2021, there were 122,000 FB leftover numbers from FY 2020 for use in that year for EB purposes (140,000+122,000 = 262,000), but that as many as 80,000 went unused and cannot be resurrected without congressional action.

Between the wasted numbers and that the Department of State must balance out the annual quota among the four quarters of the fiscal year, therein lies (in this writer’s opinion) the roots of the problem to the retrogressed categories.

In the continuing tease, USCIS adjustment dates for November allow dates of filing for FB cases, final action dates for F-2A, and filing dates for EB cases.

 

  1. H-1B by highest salary still being advocated by Biden Administration.

The Biden administration is defending the H-1B by highest salary Trump policy once again – this time before a DC federal judge in Humane Society of New York et al. v. Alejandro Mayorkas, et al., 1:21-CV-01349, saying that the policy is procedurally valid and consistent with the INA. It argued on October 11 in a new motion both that the wage dependent model for awarding the limited number of visas for specialty workers is valid and that the policy was implemented legally in the final weeks of the Trump administration under the then acting DHS Sec. Chad Wolf. The administration lost in the California District Court on the same issue about a month ago. There, District Court Judge Jeffrey S White of the Northern District of California in Chamber of Commerce of the United States of America v. US Department of Homeland Security, 20-CV-07331, granted summary judgment to the Chamber of Commerce on 9/15/21 only on the ground that Chad Wolf was not lawfully appointed as Acting Secretary at the time that DHS promulgated the rule. The judge noted that DHS abandoned the argument that a memorandum issued by FEMA Administrator Peter Gaynor cured any deficiencies in Wolf’s appointment. The judge did not rule on the merits of the plaintiffs’ argument that the government’s regulation offended the statute that H-1B cap case people “shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” §1184(g)(3).

It is becoming increasingly clear that while the Biden administration is much better than that of Mr. Trump in most areas of immigration, Mr. Biden is heavily invested in the unions and in the belief that employers should pay the highest wages to their workers, regardless of the circumstances. Practitioners should plan accordingly if this becomes a reality.

 

  1. Ban on travel from Canada and Mexico ending in stages.

The White House announced that it is ending the ban on nonessential travel from Canada and Mexico and that those travelers who are fully vaccinated can enter the US for nonessential reasons such as tourism or visiting family travelers starting November 8, the same date that international air travelers can enter. The vaccination requirement does not apply to essential Canadian and Mexican workers who will have until January to be vaccinated. Children are excepted. All FDA approved and authorized vaccines, as well as all vaccines that have an emergency use listing from the WHO are to be accepted for air travel, and a White House official said that it was anticipated that the same would be true at the land borders. At this time, only seven vaccines have been approved for use by WHO – Moderna, Pfizer, Johnson & Johnson, AstraZeneca, Covishield, Sinopharm’s BBIBP-Corv (Vero Cells), and Sinovac’s CoronaVac. The Russian Sputnik vaccine is not included.

 

  1. New York State and federal government efforts to protect immigrants.

On October 9, 2021, New York Gov. Kathy Hochul signed legislation (S343-A/A.3412-A) which will apply the legal standard of extortion or coercion to a person threatening to report another person’s immigration status. Previously threats to report could only be treated as a crime in cases of labor trafficking and sex trafficking, but were not treated as potential extortion or coercion offenses. The bill allows prosecutors to prosecute efforts to blackmail an individual by threatening to cause deportation proceedings even when unrelated to labor or sex trafficking.

On the federal side, the Biden administration has suspended the use of expanded expedited removal. A DHS spokesperson said in a statement, “DHS’s review of expanded expedited removal is ongoing. This particular application of expedited removal was used in an exceedingly small number of cases under the Biden administration and will not be used moving forward until the Department’s review is completed.” Under expanded expedited removal, the previous bounds of only employing the procedure on those unlawfully entering within two weeks and discovered within 100 miles of the borders were expanded by Mr. Trump to those unlawful entrants discovered in any location in the country who could not prove their presence in the US for at least two years.

In a DHS memo from Secretary Alejandro Mayorkas on 10/12/21, “Workforce Enforcement: The Strategy to Protect the American Job Market, the Conditions of the American Worksite, And the Dignity of the Individual” to Tae D. Johnson, Acting Dir., US ICE, Ur M. Jaddou, Director of USCIS, and Troy A. Miller, Acting Commissioner, US CBP, the Secretary stated DHS policy against mass worksite operations – that “The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country’s unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even acting as a tool of retaliation for, worker cooperation and workplace standards investigations. Moreover, such operations are inconsistent with the Department’s September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.”

 

 

Article: “IMMIGRATION NEWS THAT YOU CAN USE – OCTOBER “SURPRISE” IN THE OPPOSITE DIRECTION AS DOS FAILS TO PARTNER WITH USCIS; PROOF OF COVID VACCINATION BEGINNING OCTOBER 1 APPEARS ONLY PROSPECTIVE; $3.5 TRILLION RECONCILIATION PACKAGE HAS HOPE FOR MANY UNDOCUMENTED IMMIGRANTS; MARKET RESEARCH ANALYST H-1B PROPOSED NATIONWIDE CLASS-ACTION SUIT SETTLEMENT; REPORTING TO ICE ERO TO BECOME SIMPLER.”

As published in the Immigration Daily on September 16, 2021

  1. October “surprise” in the opposite direction as DOS does not do its part while USCIS does its.

Contrary to our speculation in the sub-article, “Visa Chart Largely Humdrum for September except for Indians – Will There Be an October Surprise?The Immigration Daily, August 24, 2021 (that the Department of State and USCIS would use the opportunity of an overabundance of employment based visa numbers to both advance the employment based (EB) dates for China and India (DOS) and to use the dates of filing chart (USCIS) to allow the filing of many cases), that scenario will not unfold in October as USCIS did its part in allowing the dates for filing chart instead of final action dates chart to be used for October, but DOS severely crimped the visa flow by delivering static charts for both family-based (FB) final action dates and filing dates charts, very little change in EB final action dates chart, and a retreat for the EB filing dates chart except for the Indian second and backwards movement on the China and India third preference categories. The China EB-3 category backed up 5 ½ months from 7/1/19 to 1/15/19, India EB-2 advanced 7 months from 12/1/11 to 7/8/12; and India’s EB-3/EB-3W moved backwards almost 2 months from 3/1/14 to 1/8/14. So in this case, USCIS was left without a dance partner as its allowing the use of the dates of filing chart for EB cases was largely ineffective in allowing more people to file for adjustment of status under both China and India EB categories. The China EB-3 date only allows persons to file who have priority dates seven days later than the date on the October final action dates chart (1/15/19 versus 1/8/19) and the forward movement of the India EB-2 to July 2012 benefits very few as most Indian EB-2 petitions were downgraded to EB-3 in October 2020 when Indian dates of filing for that category were advanced to 1/1/15. Hopefully, USCIS will have a partner in the upcoming months and continues to extend its acceptance of the dates of filing chart past October. It should be noted that USCIS maintained acceptance last year for dates of filing from October-December 2020.

2. Immigration medical exams to require proof of Covid vaccination.

The CDC announced in late August that Covid-19 vaccination would be required for immigration beginning on October 1, 2021 – that person seeking to immigrate would have to show proof of full vaccination with a vaccine authorized for use or listed for emergency use by the WHO. Self-reports of vaccination would not be accepted without written documentation. If a person is not vaccinated and the panel physician overseas or US civil surgeon has available Covid-19 vaccine, the doctor is permitted to vaccinate the applicant. However, an applicant must receive the full Covid-19 vaccine series before the medical examination can be completed, so case processing may be delayed if the applicant attends an exam unvaccinated. A blanket waiver can be given to those younger than the lowest age limit and for those who can document a medical contraindication. Also in certain circumstances, if the Covid-19 vaccine is not routinely available in the jurisdiction of the doctor. Applicants must receive the vaccination regardless of evidence of immunity or prior Covid-19 infection. The question is what happens to those who have already taken medical examinations before October 1. Will they be required to supplement their examinations, take another, or show proof of vaccination either before or at interview with USCIS or an American consular post? USCIS appears to have answered the question in its release on 9/14/21 that the vaccination requirement will be confined to medical examinations on or after October 1, 2021. In “Covid-19 Vaccination Required for Immigration Medical Examinations,” USCIS emphasized that, “This requirement is effective October 1, 2021, and applies prospectively to all Forms I-693 signed by the civil surgeons on or after that date.” Pending further instructions to the contrary, it would appear that medical examinations taken before 10/1/21 in pending cases will be valid for all purposes.

  1. $3.5 trillion reconciliation package has hope for many undocumented immigrants.

It appears that real hope is here for the legalization of many undocumented immigrants in the country, but judgment day may come as early as this week or next. The $3.5 trillion budget reconciliation bill contains immigration provisions that would allow legalization for the Dreamers who came to the country as children (DACA), farmworkers, TPS recipients, and “essential” workers. The House passed the framework of the bill on August 24 which the Senate previously approved on August 11 on a 50-49 vote. Estimates are that between 6-11 million people could be granted a path to citizenship in the bill, depending on how the legislation is written. Under budget reconciliation, there is no filibuster, and as long as the Democrats hold all 50 senators plus the vice president, the legislation will pass. The one big caveat other than Democratic unity is that the immigration part has to have the approval of the Senate parliamentarian Elizabeth McDonough, who will rule on whether the provisions either raise revenue or add to the deficit, and that the immigration provisions’ impact are not merely “incidental”. She could reject the immigration provisions if she finds that they do not have a real impact on the country’s overall budget. Both parties presented their arguments to Ms. McDonough on September 10 with the Democrats saying that giving legal status to an estimated 8 million would cost the government $139.6 billion over 10 years while Republicans argued that the impact would be incidental to the budget. Part of the reason for the uncertainty over the number of eligible people will undoubtedly hang on the question of who is an “essential worker” as everybody has their own idea on what that is. It obviously means more than a “frontline” essential worker, but who will set the standard? Congress, each state, DHS? Is it the janitor in the hospital, cashier at the bodega, restaurant waiter, restaurant owner, actor or actress, trash collector, news reporter, gas station attendant, car factory worker, Amazon line worker, other factory worker, gardener, lawn worker, home maintenance man, dockworker, bank clerk? We will have to wait to see how it all shortly plays out. *The parliamentarian unfortunately ruled against including the immigration provisions on Sunday, September 19, not on whether the provisions were incidental or not to the budget, but that the grant of permanent residence to millions of immigrants would be a “tremendous and enduring policy change that dwarfs its budgetary impact.” The Democratic leadership has said that it will keep trying to add immigration to the budget plan and will soon offer alternate plans to Ms. McDonough including setting a more recent registry date.

  1. Market research analyst H-1B proposed nationwide class-action suit settlement.

There is a proposed settlement in a nationwide class-action suit, Madkudu v. USCIS, No. 5:20-cv-2653-SVK (USDC N. Dist. CA. 2021) providing a remedy for class members – all US employers who filed market research analyst H-1B petitions on or after January 1, 2019, until the date that the court approves the settlement, which were denied on grounds that the Occupational Outlook Handbook (OOH) does not establish that market research analyst is a specialty occupation and that but for USCIS’s finding regarding the OOH entry for market research analyst, the H-1B petitions would have been approved. Class members have until October 4, 2021, to file objections to the proposed settlement agreement, and the court scheduled the fairness hearing for October 19, 2021. Cases that qualify under Madkudu for reopening 180 days after the judge’s decision with no fee to be charged are:

  • Bachelor’s or higher degree in business administration with official minor, major, concentration, or specialization in market research, marketing, or research methods, as annotated on a transcript, diploma, or other official document from the registrar. If no documentation from the registrar is available, the petitioner can submit for consideration a letter from the chair of the relevant department, a professor in the relevant department, or an official academic advisor from the institution of higher education that issued the degree confirming the above. Also an unofficial transcript may be considered.
  • Bachelor’s or higher degree in communications, statistics, computer and information technology, and/or social science may qualify if the petitioner is able to demonstrate an unofficial minor, major, concentration, or specialization in market research, marketing, or research methods is necessary to perform the job duties.
  • To demonstrate class membership, a petitioner will submit with the reopening request a copy of USCIS’s denial of the original H-1B petition and those who appealed and had their appeals dismissed by the AAO will submit a copy of the AAO decision instead of the service center denial.
  • USCIS is to provide within 10 business days of the court’s order an announcement with directions for class members to send a motion to reopen on form I-290B, with a cover sheet to clearly identify the motion is filed by a claimed member of the class, to a designated USCIS service center(s) for the receipt and adjudication of class members’ reopening requests. The 180 days commences on the date that USCIS announces directions for class members to send a motion to reopen.

The proposed settlement is another rebuke to USCIS’ reliance on the OOH to decide what is a specialty occupation for purposes of H-1B petitions, and serves as more than an indication that specialty occupation is not to be defined by one specialized field of study.

  1. Reporting to ICE ERO to become simpler.

ICE is instituting a new online scheduling tool for persons having final orders to schedule their own check-in appointments with ICE ERO (Enforcement and Removal Operations). This device is called the ICE Appointment Scheduler and is available at https://www.ice.gov/check-in. Previously, appointments had to be made via phone or in person. People can create the appointment online using information found on their I-385 alien booking record form. So there is the good possibility in many cases that after they schedule their check-in appointments through this new tool, they may go in and only be met by the kiosk. Kiosk reporting in New York was mentioned in the AILA New York Chapter – ICE/ERO meeting agenda on 5/13/21 of which there were a few interesting points:

  • The Ninth floor for reporting for persons with orders of supervision now has three kiosk machines, and so many people will just be reporting to ICE/ERO through the machines.
  • Kiosk cases are regularly reviewed for compliance and cases are removed from kiosk cart reporting if the noncitizen is noncompliant with the program requirements or there is a change in case status warranting in-person reporting.
  • To the AILA observation that many with orders of supervision have not had in-person reporting over the last year plus, have transferred jurisdictions or have otherwise not reported or been able to report, ICE/ERO says that in general noncitizens have always had reporting requirements and it would need to know the specifics of why they have not been complying in order to ascertain the next steps; that although many have not had in-person reporting, many were telephonically interviewed due to COVID-19 restrictions.

In the age of Covid, contactless reporting in most cases benefits the undocumented immigrant along with DHS staff members.

Article: “New Texas Preliminary Injunction Against Prosecutorial Discretion Focused on Detention Only; Visa Chart Largely Humdrum for September Except for Indians – Will There Be an October Surprise? H-1b Restrictions Continuing under Biden Administration; Multiple Reports on Dearth of F-1 Visa Interest Around the World; Congressional Research Service Report Shows in Absentia Rate for Hearings Only 17%.”

As published in the Immigration Daily on August 24, 2021

  1. New Texas preliminary injunction against prosecutorial discretion focused on detention only

Judge Drew B. Tipton issued a preliminary injunction against the government last Thursday, August 19, 2021, in Texas v. United States, 6:21-CV-16 (SD Texas 8/19/21), and immediately thereafter ICE’s Office of the Principal Legal Advisor (OPLA) suspended reliance on its May 27, 2021, memorandum, “Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities”, which touched on a number of situations in which OPLA attorneys could exercise prosecutorial discretion, including in canceling Notices to Appear (NTAs), continuing and even dismissing proceedings. It is hoped that OPLA will quickly set forth a revised memorandum while the Administration contemplates appealing the court’s order as Judge Tipton’s preliminary injunction only focused on detention, and not other major parts of the May 27, 2021, memorandum. In his order, Judge Tipton did not even mention the May 27, 2021, memorandum, but only certain sections of prior DHS memoranda in January and February 2021. The issue dealt entirely with the suing states’ position that the government should comply with 8 USC §§1226( c) and 1231(a)(2) which provide that the government “shall” detain certain aliens when they are released from custody or during their removal period, respectively.

*Note: On August 23, 2021, the court granted a stay of its preliminary injunction to the government’s emergency motion for administrative stay and stay pending appeal. The stay is in effect until noon on August 30, 2021, to allow the government time to appeal.

  1. Visa chart largely humdrum for September except for Indians – will there be an October surprise?

The September visa chart came out last week and it is mostly humdrum with the salient points being – FB (family-based) final action dates: F-1 worldwide moved from 11/22/14 to 12/1/14 and F-4 three weeks from 3/1/07 to 3/22/07 and everything else basically remained the same; FB dates of filing had no movement at all except for Mexico’s F-2B advancing almost 2 months to 10/1/00; EB (employment-based) final action dates: worldwide mainly stayed current with important exceptions that China EB-2 moved three months to 7/1/18, and India three months to 9/1/11, EB-3 China remained the same at 1/8/19 while India moved six months to 1/1/14; EB-3W for China moved one month to 2/1/10 and India six months to 1/1/14, and China EB-5 direct investments gained a week to 11/22/15. EB dates of filing saw China EB-2 advance two months to 9/1/18 with no advance for India, and EB-3 China remained the same at 7/1/19 while India’s EB-3/EB-3W categories moved one month to 3/1/14. Regional center EB-5 cases are still closed due to the lack of extending legislation. The China and Indian movements do not really do a lot for filing cases as everyone who had a labor certification and a priority date before 1/1/15 (India) was eligible to adjust under EB-3 or EB-2 downgraded to EB-3 in October 2020. For China’s EB-2 with the final action date of 7/1/18, China natives could have filed long ago under a downgrade to EB-3. However, the six-month Indian EB-3 movement will allow many of the Indian October filings to be approved if USCIS can work on and prioritize their cases. A word of advice is that those who filed for adjustment of status under the EB categories in the first quarter of this fiscal year (October-December) and whose priority dates will be current in September under the final action dates chart should take their medical examinations (I-693s) now if they did not submit them with the filing or have not already taken such since that time. Amazingly, with a 600,000 Indian backlog in the employment based categories last year, the Department of State has managed to move the Indian EB-3 final action date from its September 2020 availability date of 10/1/09 to a September 2021 date of 1/1/14, a jump of four years and two months within one year. USCIS did not help in other types of cases as its adjustment charts for September showed it sticking to the familiar pattern – filing dates on FB, final action dates on F-2A, and final action dates on EB. One wonders whether the Department of State and USCIS are planning another October surprise akin to the one in this year in which the EB-3 dates of filing moved almost 5 years for India born and 11 months for China born, and USCIS allowed the dates of filing chart for EB cases to be used. It is estimated that there will be at least 290,000 EB numbers available in the next fiscal year, 150,000 over the normal allotment.

  1. H-1B restrictions continuing under Biden administration

Note that not all is peaches and cream with the Biden administration in the realm of legal immigration. He did not put up Marty Walsh, the unionist, as Department of Labor Secretary for nothing. The Administration filed a cross motion for summary judgment in defense of the regulation that would base the H-1B selection process on the highest wages to be paid in Chamber of Commerce v. US Department of Homeland Security, Case No. 4:20-CV-7331, and the Chamber just filed a reply in support of its motion for summary judgment and opposition to the government’s cross motion for summary judgment that will be heard before Judge Jeffrey S. White of the Northern District of California on 9/17/21. The regulation was finalized on January 8, 2021, but postponed by the Biden White House in January. USCIS then published a final rule delaying the effective date to December 31, 2021. The Chamber’s reply solidly asserts three grounds for which the regulation should be declared invalid – that it goes against the statutory language that H-1B visas be issued “in the order in which petitions are filed for such visas”; that it was issued under the purported authority of Chad Wolf, who eight district courts unanimously concluded never lawfully occupied the office of Acting Secretary of Homeland Security; and it arbitrarily disregarded relevant comments and vested reliance interests in violation of the Administrative Procedure Act. Hold onto your hats!

  1. Multiple reports on dearth of F-1 visa interest worldwide

APM Reports stated on August 3, 2021, that the pandemic, visa restrictions, rising tuition and a perception of poor safety in America have driven new international student enrollment down by 72%. The difficulty now and in the future is that an important part of the innovation in our economy is F-1 students going from OPT to H-1B and then employment-based green cards. SEVIS said in its “2020 SEVIS by the Numbers Report” that in 2019 and 2020, China sent 91,936 fewer students in 2020 as compared to 2019, a -19.38% drop, so that the total of Chinese students in 2020 was 382,561 while India sent 41,761 less, a 16.76% decrease, and its population in 2020 was 207,460 students. A third report in the Washington Post said that from 2020 to now, schooling applications to the US from China have continued to drop and only about 19,000 Chinese students filled in the common application required to attend most undergraduate schools this winter, a 16% decrease from the last cycle. Also that it is no longer very in vogue for Chinese families to send their children to American institutions.

  1. Congressional research service report shows in absentia rate for hearings only 17%

The question is at what rate noncitizens appear for their removal hearings, and a Congressional research service report on August 5, 2021, said that in using the all matters method, the total in absentia rate over an 11-year period was 17% taking into account those appearing at initial case completions, pending cases, and administratively closed cases. That was opposed to the Initial Case Completions (ICC) method in use by the Executive Office for Immigration Review (EOIR) that only counts the first dispositive decision rendered by an immigration judge which had a 34% in absentia rate. This is of course a hot button topic with immigration detractors claiming that the majority of illegal immigrants who are released do not show up for their hearings. However, the report showed that EOIR’s methodology only divided the number of annual in absentia orders by the number of annual immigration court decisions involving grants, denials, terminations, and voluntary departures, while not considering persons who showed up but whose cases were not completed, whose cases were administratively closed or moved to an inactive pending docket, and those ordered removed in absentia whose cases were subsequently reopened by the courts.

 

Article “EAD Processing Times for Adjustment of Status Applicants Must Be Drastically Improved” by Arthur Lee, Esq.

As published in the Immigration Daily on August 23, 2021

USCIS should prioritize improving its efficiency in adjudicating initial I-765 employment authorization document applications for all groups, but in particular, for those qualifying through adjustment of status (c)(9). Prior to 2016, EADs were required to be issued within 90 days of filing the I-765 form. However, USCIS amended its regulations to remove the 90 day requirement after facing a class action lawsuit for failing to comply with its deadline. Thereafter, the processing times for (c)(9) EADs grew incrementally—3-5 months turned into approximately 5-7 months in 2020. As of the date of this article, the processing times for (c)(9) EADs are 8-10 months at the Texas Service Center, and 8-9.5 months at the National Benefits Center.

I note that EAD processing time issues are not confined to just the adjustment of status (c)(9) category. They are delayed across the board—asylum applicants can expect to wait up to 13 months, H-4 spouses 11.5-14.5 months, DACA applicants 6.5 to 10.5 months, etc. EAD processing times are long and arbitrary for almost all categories at this point. However, the focus of this article is on adjustment of status EADs.

The abovementioned (c)(9) EAD processing delays have left many adjustment of status applicants in unjustifiably tough circumstances. This 8-10 month wait in eligibility to take employment can cause severe financial hardship and career harm for those who do not have an underlying nonimmigrant status providing work authorization. USCIS may expedite EAD applications in limited circumstances for individuals who can prove one or more of the following criteria: (1) severe financial loss to the company or applicant will occur; (2) emergency and urgent humanitarian reasons; (3) clear USCIS error; (4) nonprofit organization whose request is in furtherance of cultural and social interests of the US; or (5) US government interests. In practice, however, these criteria are high standards to clear—for instance, it is not typically enough for USCIS to approve an expedite where an applicant states that he/she will lose a job or be set back financially. As such, expedite requests are most often unsuccessful. For typical cases not meeting expedite criteria, those with dual intent nonimmigrant visas such as H-1B and L-1 that are close to expiration at the time of I-485 / I-765 concurrent filing have a difficult choice to face. They may either wait for their EAD to arrive which may put them out of work for months causing career and business interruption as well as financial hardship to themselves and their families, or extend their employment nonimmigrant visas costing potentially thousands of dollars in application and attorney fees. As an example, one of my clients filed a concurrent I-485 / I-765 application 6 months prior to H-1B expiration and reasonably expected that the EAD should be adjudicated prior to H-1B expiration or at least very soon after. This client decided not to file an H-1B extension expecting that the EAD would soon be granted. This EAD application has now been pending for over 9 months, and the client has been out of work for the past 3 months and does not know when to expect to return to work—causing financial harm to the client’s family as well as the employer as the client’s role is essential to the company. The client also submitted an expedite request on grounds of severe financial loss to the client and the employer, which was summarily rejected.

As such, many adjustment of status applicants are facing a major problem in EAD processing times causing financial and career hardship to themselves and their families, as well as hardship to their employers. Standard or even serious levels of hardship do not meet the criteria for expedite. In my client’s rejection, USCIS conceded that the financial hardship appeared serious, but denied the expedite stating that my client did not “provide evidence of an extreme emergent need.” Therefore, proving severe financial hardship appears in practice to be a very high bar. It is understood that EAD delays are due to USCIS staffing shortages and the need to perform discretionary analysis as EADs are a USCIS discretionary benefit. However, adjudications on discretion in this context should not require extensive time and resources. Adjustment of status applicants will mostly remain in the United States during the pendency of their applications, so what difference in national security does allowing them to work during this time make? Also of note, a full discretionary analysis of the I-485 applicant’s favorable equities and unfavorable factors is performed at the I-485 adjudication stage—therefore, there is no need to perform two full fledged discretionary analyses for the same applicant. Any discretionary examination on an EAD application should be very limited in scope.

The good news regarding budgeting is that USCIS is projected to have a budget of $4,760,784,000 for FY2022, a nearly $500,000,000 increase over FY2021. An appropriate portion of these resources should be allocated to eliminate the backlog of adjustment of status EAD applications. With increased resources, USCIS should consider the following actions to meet this goal: (1) Re-enact a regulation mandating the completion of initial EAD adjudications within 90 days, or at the very least, a reasonable time frame so that applicants are not stuck without work for 10 months; (2) Lower the bar for an expedite request on an EAD to be successful. It should not take an absolute emergency to speed up an EAD application. For example, so long as one can show that he/she has been out of work for an unreasonable amount of time (say 2 months), and it has resulted in significant financial loss to the applicant, and harm to the employer, USCIS should grant the expedite—especially as EADs typically should not take very long to adjudicate; (3) provide guidance for USCIS to accept late filings on nonimmigrant visa petitions that confer work authorization for those who allowed their nonimmigrant employment statuses to expire anticipating sensible adjudication times for their EADs, and treat these extensions as timely filed. Doing such would be consistent with USCIS policy since in such a situation, a delay in filing an NIV extension is commensurate with the circumstances, and due to extraordinary circumstances beyond the control of the applicant—for example, a reasonable expectation of an EAD being adjudicated within 3-5 months, which is not met as an EAD application is still pending a year after application; (4) allow premium processing of EADs. Indeed, the “Emergency Stopgap USCIS Stabilization Act” (HR 8089 passed the House of Representatives, HR 8337 passed Senate and signed by President incorporating HR 8089), signed into law on October 1, 2020 (Pub. L. No. 116-159), authorizes DHS to expand premium processing to some categories which are currently ineligible, including employment authorization. Under this law, EAD premium processing may be implemented without going through the standard regulatory process as long as the enacted fee not greater than $1,500 and processing time is not greater than 30 days. As of today, USCIS still has not enacted the expansion of premium processing to new categories. The most recent update USCIS has provided on this topic through a press release on October 16, 2020 stated: “Pub L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.” USCIS should be urged to expeditiously enact expanded premium processing, especially for EAD applicants as EAD applications in general are taking unreasonably long to adjudicate, and leaving applicants in unjustifiably difficult situations. Enactment of expanded premium processing would benefit both EAD applicants and USCIS. Applicants would have an option to have a result within 30 days as long as they are willing to spend $1,500. USCIS in turn would receive up to $1,500 for a simple EAD adjudication done quickly, which should be an attractive proposition for the agency.


Article: “Immigration news that you can use-Preserving F-2B preference at the NVC or consulate; Immigration video interviews; New ground for denying China NIV applications; New policies on EAD’s, RFE’s, and expedites; Possible actions for I-601A cases stymied by Castro-Tum”

As published in the Immigration Daily on July 12, 2021

  1. Preserving F-2B preference at the NVC or consulate.

In an earlier article, this writer questioned the procedure that applicants could use to notify USCIS that they wished to keep the F-2B designation as unmarried son or daughter of a permanent resident even as their petitioners naturalized, which move automatically changed their designations from F-2B to F-1 unmarried son or daughter of a US citizen. The aim of course is to immigrate at the earliest time, and the July 2021 visa chart shows that for all countries of the world except Mexico and the Philippines, there is visa availability for those filing I-130 petitions before 9/15/15 under the F-2 B category while there is only availability under the F-1 category for those filing by 11/15/14. The Child Status Protection Act (CSPA) allows for the preservation of the F-2B category with the agreement of USCIS, and the question was whether there was a fixed procedure for the retention of classification. It appears that there now is and in looking at the Department of State FAQs, the process is stated as the following:

  • Applicants whose case is at NVC should submit requests using NVC’s online inquiry form. NVC will forward the request to USCIS and change the visa category back to F2B upon receipt of USCIS’s approval.
  • Applicants whose case is at a U.S. Embassy or Consulate overseas should ask the embassy to submit a request on their behalf. The consular officer will forward the request and adjudicate the visa application in the F2B category only upon receipt of USCIS’s approval.

Although F-2B has been the faster category, there have been times in the past when F-1 was quicker. Applicants may wish to hold off making the decision on which category to choose until their cases are closer to visa availability.

  1. Video interviews at Immigration.

Do not be surprised if you walk into the interview at USCIS and there is no officer there. From reports, video interviews with remote officers are being implemented to varying extents, and may comprise a good portion of future adjudications. In asylum interviews, attorneys complain about being placed in a chair in the middle of the room with no desk, facing the screen, and having the feeling of being in an interrogation setting. In naturalization cases, it appears that video interviews are being used more commonly, and the New York District office even has a new iPad unit. One attorney noted that at an interview in the New York District office, the iPad officer was from Ohio. While video interviews may be more appealing during the pandemic and take less time than traditional person-to-person interviews, one wonders how a remote officer can look at many items that an applicant brings in on the date of interview, or what happens when the applicant sent all the paperwork and documents through filing online or to a lockbox, and part of the documents for some reason do not make it to the system for the interview. As we all know, the reliance of electronic records is only as good as the people inputting the information. In cases involving bona fide marriage, applicants typically bring in reams of documentation to show an officer that they are living together with their spouses. An officer usually asks to see this or that, and applicants take the relevant documents from their bag or folder. In a video interview, how is an officer to get a good look at the documents or to determine whether they are genuine? Except by sending the applicants to the front desk or a clerk, how are the new documents to reach the remote officer?

  1. New ground for denying China NIV applications.

As if we did not see enough bars on immigration during the Trump years, here is another one by the Department of State. In the State Department 5/27/21 liaison meeting with the American Immigration Lawyers Association, AILA raised reports of NIV rejections in China based on INA section 243(d) due to China’s failure to accept deported nationals, and DOS confirmed that 243(d) rejections are possible in China, but that this should not affect most student visa applications. It said that Chinese nationals subject to 243(d) can avoid that ground for denial if they apply at a consular post outside of China. The difficulty of course is the well-known reluctance of consulates in third countries to accept and adjudicate most nonimmigrant applications because of caseload and the belief that consulates in the home country are better equipped to handle cases of their own nationals.

  1. Three items from USCIS on June 9, 2021, on EAD’s, RFE’s, and expedites:
  • Initial and renewal EAD’s for adjustment of status cases will now be for two years instead of one.
  • The old RFE policy from 2013 is back. That policy instructed officers to issue RFE’s in cases involving insufficient evidence before denying such cases unless the officer determined that there was no possibility that the benefit requester could overcome a finding of ineligibility by submitting additional evidence. In 2018, USCIS rescinded the no possibility policy and issued guidance that officers could deny benefit requests for lack of initial evidence without first sending an RFE or NOID.
  • The expedite policy is tweaked with USCIS saying that it will generally not consider expedites where premium processing is available, but now will restore that ability for nonprofit organizations whose request is in the furtherance of the cultural and social interests of the United States. Otherwise the criteria are the same – severe financial loss to a company or person; emergencies and urgent humanitarian reasons; US government interests; clear USCIS error. Company financial loss can be recognized where it is at risk of failing, losing a critical contract, or required to lay off other employees – e.g. medical office if a gap in a doctor’s employment authorization would require laying off medical assistants.

The three changes by and large make for fairer and more efficient policy– the EAD change as it has largely been because of the increasing delays in adjudications that adjustment applicants must file second applications for EAD’s; the RFE change as petitioning organizations have a right to believe that USCIS will not unfairly flip-flop on subsequent petitions involving the same individual and same set of facts; and the expedite policy to allow nonprofits to obtain expedites without having to pay the same premium processing fee as private organizations with deeper pockets.

  1. Where no administrative closure of cases in I-601A cases, the further actions that can be taken.

In the event that you are unable to adjust status here in the US, but have a good possibility of having an I-601A application for provisional waiver approved to consular interview overseas, yet are stymied by the ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018) which prevents immigration judges from administratively closing cases to allow the filing of such applications, the Biden administration is encouraging DHS to allow another form of relief. On May 27, 2021, DHS sent a memorandum to all OPLA (Office of the Principal Legal Advisor) attorneys entitled “Interim Guidance to OPLA Attorneys regarding Civil Immigration Enforcement and Removal Policies and Priorities” laying out the priority cases for enforcement as those affecting national security, border security against those unlawfully entering the US on or after 11/1/20, and aggravated felons or gang members determined to pose a threat to public security. It also listed all factors for prosecutorial discretion and encouraged that it be exercised at all stages of the enforcement process – and that “it may be appropriate for the Chief Counsel to conclude that a legally sufficient, appropriately documented administrative immigration case warrants non-filing of an NTA.” In light of the lack of administrative closure, it encouraged the use of continuances for “good cause shown” and seeking, opposing, or joining in motions for dismissal of proceedings. In the latter regard, the memo stated that it may be appropriate where the noncitizen has an approved I-130 and appears prima facie eligible for either adjustment of status “or an immigrant visa through consular processing abroad, including in conjunction with a provisional waiver of unlawful presence.”

Further news on Castro-Tum is encouraging as another dagger to the decision was struck recently by the Sixth Circuit in Garcia-de Leon v. Garland, No 20-3957 (6th Cir. 6/4/21), the court saying that immigration judges have the authority to administratively close cases for purposes of I-601A’s. Previously the Sixth Circuit had held in Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020) that the regulations did not give IJ’s or the BIA general authority to administratively close immigration cases. So now, for purposes of I-601A cases, all four circuits that have decided on the matter have gone against Castro-Tum – the Third in Sanchez v. Atty. Gen., No. 20-1843 (3d Cir. 1/26/21), Fourth in Romero v. Barr, 937 F.3d 382 (4th Cir. 2019), Seventh in Meza-Morales v. Barr, 973 F.3d 656 (7th Cir. 2020), and now the Sixth.

Note:  Following the writing of the above, Atty. Gen. Merrick Garland overruled Castro-Tum a few days later on July 15, 2021, in its entirety in Matter of Cruz-Valdez, 28 I&N Dec. 326 (AG 2021). This case dealt with an I-601A situation in which the immigration judge and the Board of Immigration Appeals had denied the motion for administrative closure as being foreclosed by Castro Tum. Atty. Gen. Garland determined that it was appropriate to overrule former AG Sessions’ opinion in Castro-Tum and to vacate the decision as well. The move by the Atty. Gen. will now revive the I-601A provisional waiver as an effective avenue of relief for those under immigration proceedings who cannot adjust status in the US.

 

Article: “IMMIGRATION NEWS THAT YOU CAN USE – NEW STUDENTS FROM CHINA TO BE ADMITTED AND GUIDANCE FOR DISTANCE LEARNING, EOIR RE-OPENINGS, H-1B REGISTRATIONS FOR 2021 AN ALL-TIME HIGH, SSA NO MATCH LETTERS NIXED”, ENTREPRENEUR PAROLE PROGRAM RETURNS, EXPANDED BIOMETRIC RULE NIXED, BIDEN BACKUP PLAN FOR LEGALIZATION, TIPS IN DEALING WITH THE NVC”

As published in the Immigration Daily on June 1, 2021

New students from China to be admitted, and guidance for distance learning:

Under the regional COVID ban on China, foreign students from China have been generally barred unless able to show that they have been in a non-banned country for 14 days before entry into the US. That policy changed on  April 26, 2021, with the Department of State announcement that National Interest Exceptions (NIE’s) would be given to all students including those from China with valid F-1 and M-1 visas intending to begin or continue an academic program starting August 1, 2021 or later, and that they would not need to contact an embassy or consulate to seek an individual NIE to travel; that they may enter the US no earlier than 30 days before the start of their academic studies. Students seeking to apply for new visas who are found to be otherwise qualified will automatically be considered for an NIE to travel. In other related news, Immigration and Customs Enforcement (ICE) sent a message to all SEVIS users on 4/26/21 that it is extending the guidance in March 2020 for the 2021-22 academic year. That guidance allowed schools and students to engage in distance learning in excess of regulatory limits and applied to nonimmigrant students actively enrolled at a US school on March 9, 2020, who were otherwise complying with the terms of their nonimmigrant status. They can count online classes toward a full course of study in excess of regulatory limits.

EOIR re-openings:

News from The Executive Office for Immigration Review (EOIR) that non-detained cases will begin to be heard in a number of immigration courts that were previously closed including New York City on July 6, which is a Tuesday since July 5 is the official day for holiday as Independence Day falls on Sunday. The notice says that all immigration courts will be holding limited hearings, applying relevant federal best practices relating to communicable disease. In the recent past, hearing notices for non-detained in closed courts could generally be put aside as EOIR announced postponement dates past the calendar dates for hearings. Now affected attorneys and respondents must pay more attention to the notices of hearing.

H-1B registrations for 2021 an all-time high:

News from the DealBook newsletter in The New York Times on May 10, 2021, revealed that H-1B registrations for this year reached approximately 308,000 applicants for the 85,000 allotted slots. This is a record high as 2019 produced approximately 201,000 applicants and 2020 275,000. It also means that organizations had about a 1 in 4 chance of having their candidates selected. So if you as the lawyer or petitioning organization were puzzled as to why more of your applicants were not selected, that is the reason. The remedy would apparently be to allocate more H-1B numbers, especially as it has been shown that most H-1B beneficiaries do not take away available jobs from US workers (see Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020)), but such will not likely be happening in a Biden administration attuned to the cries of labor unions and the general lack of sympathy in Congress. The best solution for organizations not interested in off-shoring professional type H-IB work would probably be to not rely on getting new blood every year and to incentivize their current H-1B staff to remain through such means as sponsoring them for permanent residence and giving occasional raises consistent with performance along with other perks and accommodations.

SSA no match letters nixed:

Good news is that the Social Security Administration (SSA) will no longer be sending out no match letters to employers which caused them to be the subject of investigation and to fire employees who could not quickly document their immigration status. In a recent notice, SSA laid out the history that it began mailing no match letters in March 2019 to employers identified as having at least one name and combination submitted on W-2s that did not match SSA records, and that “At present, we are discontinuing EDCOR [Educational Correspondence to Employers] letters to focus on making it a better, easier, more convenient experience for employers to report wages electronically.” To ICE, receipt of the notification created an affirmative duty to investigate the discrepancy and that failure to act was constructive knowledge of unauthorized employment. The no match letter policy was further criticized for the inaccuracy of SSA records.

Entrepreneur parole program returns:

More good news that Biden is bringing back the entrepreneur parole program – what some people mistakenly called the EB-6 program and that the past USCIS head L. Francis Cissna boasted to Sen. Charles Grassley of Iowa in April 2018 that USCIS had not approved any parole requests by that time. The program was first introduced in January 2017 in regulatory form to take effect in July 2017, but disfavored by the Trump Administration and DHS moved in a 2018 notice of proposed rulemaking to remove it entirely, yet the removal was never completed. Current Acting USCIS Director Tracy Renaud said that “Immigrants in the United States have a long history of entrepreneurship, hard work, and creativity, and their contributions to this nation are incredibly valuable. The international entrepreneur parole program goes hand-in-hand with our nation’s spirit of welcoming entrepreneurship and USCIS encourages those who are eligible to take advantage of the program.” Under the rule, DHS may use its parole authority to grant a period of authorized stay to foreign entrepreneurs who demonstrate that their presence in the US would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion. Entrepreneurs granted parole would be eligible to work only for their start-up businesses. Dependent family members would also be eligible for parole, but not work privileges. The parole can be granted for up to three entrepreneurs per startup entity.

Applicants would have to demonstrate that they possess a substantial ownership interest in a startup entity created within the past five years in the US that has substantial potential for rapid growth and job creation; have a central and active role in the start of entities such that they are well-positioned to substantially assist with the growth and success of the business; and that they will provide a significant public benefit in the US based on their role as an entrepreneur of the start-up entity by showing either that the start-up entity has received a significant investment of capital from certain qualified US investors with established records of successful investments; or the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants rewards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or they partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation. An entrepreneur qualifying through investment by qualified US investors must have received $250,000 within the 18 month period prior to filing the application for parole; if through government entities $100,000 in grants or awards; and if only partially satisfying one of the two above conditions, can provide other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Expanded biometric rule nixed:

There was an announcement on Friday, May 7, 2021, that USCIS is withdrawing the proposed rule that would have everybody take biometrics and even enhanced biometrics including eye scans and some DNA tests for not only applicants, but for petitioners and those who are providing affidavits of support. The notice from USCIS said that the rule “would have expanded department authorities and requirements for collecting biometrics by removing age restrictions; requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waives or exempts the biometrics requirement…”

Biden backup plan for legalization:

It appears that the Democrats are considering pushing through a revised immigration package through budget reconciliation if they cannot get the 60 votes in the Senate. Created by the Congressional Budget Act of 1974, reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. In the Senate, reconciliation bills are not subject to filibuster and the scope of amendments is limited, giving this process real advantages for enacting controversial budget and tax measures. The Congressional Budget Act permits using reconciliation for legislation that changes spending, revenues, and the federal debt limit. This backup plan would legalize about 8 million or fewer undocumented immigrants according to The New York Times reporting on May 4, 2021. They would include legal status to Dreamers, those granted TPS, and close to 1 million farmworkers. Nancy Pelosi last month endorsed the idea of using reconciliation citing the “budget impacts of immigration in our country”, and Sen. Patty Murphy of Washington, the number three Democrat came out in favor of this approach. Reconciliation requires agreement by the parliamentarian, Elizabeth McDonough, that the policy change would have a budgetary impact that is more than merely incidental. Researchers have found past precedents in which changes to immigration policy were allowed as part of a budget reconciliation package, and they are tallying up the budgetary effects of the immigration proposals which total in the tens of billions. Republicans are of course not agreeing to anything on immigration saying that Biden needs to fix what is happening at the border before anyone can do anything meaningful on immigration. The contemplated moved by Democrats is dicey, but if successful would accomplish many of Mr. Biden’s immigration goals.

Tips in dealing with the NVC:

The below are a couple of pointers from the Department of State from the AILA Virtual Spring Conference on 4/16/21.

  • To expedite interviews for emergency cases, make the request through the nvcexpedite@state.gov. When NVC receives the request, it will reach out to the post where consular officers will determine if the case qualifies. The cases must be current, at the NVC, and the case parties must have good articulated reasons for the request. Requesters should receive an automated request answer and timeframe for response. Repeated inquiry can slow down the process.
  • What do you do when documents are not available or unobtainable? At the NVC, click “document unavailable” with an explanation in the upload space provided to send the case to the documentarily completed stage. The party should be able to later upload the document to CEAC.

Article: “IMMIGRATION NEWS THAT YOU CAN USE – CHANGE IN CASE FLOW PROCESSING BEFORE THE IMMIGRATION COURTS; SWORN STATEMENT SAMPLE WITHOUT NOTARY IN THE TIME OF PANDEMIC; KEEPING F-2B CATEGORIZATION WHEN PETITIONER NATURALIZES; H-1B COMPUTER CASE TREATMENT THIS YEAR.”

As published in the Immigration Daily on April 26, 2021

Change in case flow processing before the immigration courts

The new revised EOIR policy memorandum, “Case Flow Processing before the Immigration Courts,” on April 2, 2021, represents a vast improvement over the predecessor memo of November 30, 2020, which forced affected attorneys between December 1, 2020 –April 1, 2021 to lump in applications for immigration relief with their initial pleadings even if they contested removability. The new trend in case flow processing is to do away with most master calendar hearings (where attorneys in non-detained cases put in their representation at least 15 days ahead of the date of hearing) by the immigration court vacating the date and sending a scheduling order for the parties to present further papers. The difference between the two memoranda was the November version setting deadlines for the filing of written pleadings, any evidence related to the charges of removability, and any applications for relief. That forced attorneys not only to do much more work, but to be very mindful of what was put down in relief applications to ensure that they did not in any way contradict written pleadings that the respondent was not removable. The new policy makes it fairer by first deciding the question of removability. After vacating the master calendar, the court now sends a scheduling order for 30 days for written pleadings and any evidence related to the charges of removability. By motion, parties can request a master calendar hearing or an extension of the filing deadlines. Once written pleadings and evidence on removability have been received, the parties have 20 days to file a response with the court. The immigration court then first decides the issue of removability, issuing a scheduling order for submission of additional supplementary briefing or evidence regarding removability, or scheduling a hearing on removability. Where removability is established, the court sends the parties the written removability determination and a scheduling order with deadlines for applications for relief along with supporting documents, and usually the deadline is 60 days from the date of the order sustaining the removability charge.

The April policy memorandum allows attorneys contesting removability to feel that they are not being squeezed into a box in which they wind up doing much work in a short amount of time which may be totally unnecessary if their clients are not removable, and work that in some cases may cast doubt on the attorneys’ arguments that their clients are not removable.

Sworn statement sample without notary in the time of pandemic

It is a truism that sworn statements are given more weight than unsworn statements in any proceeding. But in the pandemic, there is a true hesitancy in going into a building and meeting with someone just to have a paper or papers notarized. What can be done in an immigration context? We do not know the practice of other firms, but have taken to advising our clients that notarization may not be strictly necessary, and encourage in situations of hesitancy that they use the language, “I certify, swear, or affirm, under penalty of perjury under the laws of the United States of America, that the information in this affidavit is complete, true, and correct.” I note that the language is taken from the USCIS G-639 Freedom of Information/Privacy Act Request form.

Keeping F-2B categorization when petitioner naturalizes – please identify a central location.

People naturalize, but maybe not to the benefit of an adult child waiting for US immigration. In former times where they submitted F-2B petitions for unmarried children over the age of 21, the children could lose a year or years when the petitioners naturalized, automatically moving the petitions from F-2B to the F-1 category of adult children of US citizens. Currently under the May 2021 visa chart, immigrant visas are available for natives of most countries of the world (except Mexico and the Philippines) where F-2B petitions were filed prior to 8/15/15 while F-1 availability is only for petitions filed before 10/22/14. Fortunately, there is the opt-out provision for the adult children under Section 6 of the Child Status Protection Act which allows them to opt out and remain in the F-2B category. The opt-out requires the son or daughter to file a written statement with the “Attorney General” that he or she elects not to have such a conversion occur (or if it has occurred, to have such conversion revoked). The question remains in many cases – who do you notify? The “Attorney General” in immigration parlance generally refers to DHS and in this case to its USCIS component, but the difficulty is that there is no central location where the notification is to be made. So here is a suggestion to the agency – identify a central location. For most paper filed I-130 petitions, getting a message to the appropriate hands on a pending case is next to impossible. For approved petitions, the approving Service Center wants nothing more to do with the case since it already approved the petition. For cases that have been transferred overseas, USCIS overseas offices have largely closed. So most requests to USCIS at any location go unanswered. People to our understanding have brought proof of having sent the statement to either USCIS or the National Visa Center or the US consulates and embassies themselves to the immigrant visa interviews in the hope that such would suffice. It would be helpful for USCIS have a set procedure that people could follow.

H-1B computer case treatment this year

This is the year that H-1B computer cases should be easier for practitioners to handle and not be the magnet of as many RFE’s (Requests for Evidence) and denials as in the past. The confluence of the policy memorandum of USCIS on June 17, 2020, rescinding two prior policy memoranda relating to the employer-employee relationship and the requirement for contracts and itineraries involving third-party websites, and the winning of Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020), a case on what constitutes a specialized occupation, has brought about the following:

  • PM 602-0114, “Rescission of Policy Memorandum,” the policy memorandum, rescinded the 1/8/10 memo, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference to AFM chapter 31.3 (g)(16)), page 270/6.2.8 (AD 10-24),” and 2/22/18 memo “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157.” Under the 2020 memo –

  • In adjudicating whether an employer-employee relationship exists, an officer should consider whether a petitioner has met at least one of the factors under 8 CFR 214.2(h)(4)(ii) of “hire, pay, fire, supervise, or otherwise control the work of.” The memo says that H-1B petitioners are required to submit the LCA and a copy of any written contract between the petitioner and beneficiary or a summary of the terms of the oral agreement if a written contract does not exist, and that depending upon the content of such documentation, it may establish the employer-employee relationship.

  • The petitioner has the burden of proof to establish that a bona fide job offer exists at the time of filing and that the petitioner will employ the beneficiary in a specialty occupation. If the petitioner’s attestations and supporting documentation meet the standard, then the officer should not request additional evidence and should approve the petition provided that all other eligibility requirements are met by a preponderance of the evidence.

  • H-1B petitioners are not required to submit contracts and legal agreements between the petitioner and third parties.

  • Evidence of specific day-to-day assignments is not required to establish that the position is in a specialty occupation although the petitioner may choose to provide such evidence.

  • An officer may limit the validity of an approved H-1B petition to a shorter period of time, but the decision must be accompanied by a brief explanation as to why the validity period has been limited.

  • In Innova Solutions v. Baran, the issue was whether a computer programmer position constituted a specialty occupation. The authoritative source cited by USCIS in denying the petition, the Occupational Outlook Handbook (OOH), stated that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject.” The OOH also listed a bachelor’s degree as the “[t]ypical level of education that most workers need to enter” the computer programmer occupation. USCIS seized upon the following OOH passage “however, some employers hire workers with an associate’s degree” in saying that “The OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation,” and that “the OOH also indicates that employers value computer programmers who have experience, which can be obtained through internships.” The H-1B statute and regulations recognize a specialty occupation as one in which the position requires “theoretical and practical application of a body of highly specialized knowledge” and that “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” The Ninth Circuit flatly rejected the government’s argument in the first circuit court case on specialized occupation supporting the fact that “normal” does not mean “always” – that words like “typical” and “most” cannot be separated from the word “normal.” The court said, “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. “Typically” and “normally” are synonyms.” Also “While it is theoretically possible that there is “space” between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it.”

  • In the aftermath of the decision, USCIS issued a policy memorandum on 2/3/21, PM-602-0142.1 “Rescission of 2017 Policy Memorandum PM-602-0142” repudiating and rescinding the 2017 guidance, “Rescission of the December 22, 2000 Guidance Memo on H-1B Computer Related Positions” in which it had said that the presumption of computer related cases being professional was no longer valid.

Petitioners in this H-1B cap season with March selectees have until June 30, 2021, to submit petitions, and the following months will tell whether the USCIS RFE/denial spotlight will finally move away from the computer sector.

Article: “IMMIGRATION NEWS THAT YOU CAN USE – PUBLIC CHARGE, VENEZUELA/BURMA TPS, AND INTERPRETERS”

As published in the Immigration Daily on March 24, 2021

As we notice that many readers would like to know about immigration developments in small bites rather than large articles, we will begin to write a series of shorter summaries of what we hope to be useful developments in the field:

  1. Public charge – The law has now officially reverted to 1999 and the rules in place until the Trump Administration. The old guidelines as to what were considered means tested public charge benefits only included SSI, Temporary Assistance For Needy Families (TANF), state and local cash assistance programs providing benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting persons institutionalized for long-term care, e.g. nursing homes or mental health institutions. The Trump administration added food stamp program participation (SNAP), Section 8 housing assistance under the housing choice voucher program, Section 8 project-based rental assistance, including moderate rehabilitation, public housing (under the Housing Act of 1937), and federally funded Medicaid (with certain exceptions). All of the Trump add-ons are now out. Readers should also remember that DHS has never considered as public charge benefits the receipt of emergency medical assistance, disaster relief, participation in the national school lunch programs, special supplemental nutrition program for women, infants, and children, the children’s health insurance program, subsidies for foster care and adoption, government-subsidized student and mortgage loans, energy assistance, food pantries and homeless shelters, and Head Start.
  1. Public charge – Financial joint sponsors have much less to fear from intrusions or attempts by city, state or federal governments to intimidate them and to claw back monies that the entities have expended on means tested public benefits for persons being sponsored. Before the Trump administration, the issue of claw back had been largely settled on the side of joint sponsors as it was unpopular the few times that it was tried when claw back suits were filed. The Trump administration on the other hand made fierce attacks on family-based financial sponsorship. It first announced in a May 23, 2019 “Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens,” that it would go after sponsors, and if a sponsor did not reimburse an agency upon request, the agency could then seek a court order for reimbursement. It next launched a new Systematic Alien Verification for Entitlements (SAVE) initiative in September 2020 encouraging all agencies administering federal means tested public benefits to use the new SAVE sponsorship initiative functionality to manage and report their sponsorship and agency reimbursement decisions. In the same month, the administration placed even more pressure on joint sponsors in a proposed rule, “Collection and Use of Biometrics by US Citizenship and Immigration Services,” that it could collect the biometrics of any sponsor associated with an immigration benefit or request including US citizens. Finally, it published a notice of proposed rulemaking, “Affidavit of Support on Behalf of Immigrants,” on October 2, 2020, to further intimidate potential joint sponsors by requiring them to submit three years tax returns, banking information, credit scores, credit reports, and information on their receipt of public benefits, and past failure to meet support obligations in other cases. The Biden administration issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” on February 2, 2021, revoking the 2019 Trump presidential memorandum, and DHS withdrew the affidavit of support notice of proposed rulemaking on March 19, 2021. In its withdrawal, DHS stated that it was aiming to reduce barriers and alleviate burdens on American families who wished to sponsor individuals immigrating to the US within the legal immigration system.
  1. Public charge – Cancellation of the Trump administration’s public charge rules means wholesale changes to the relevant immigration forms, and readers should not be caught short in using the pre-March 10, 2021, forms on or after April 19, 2021. The 3/10/21 edition of the forms must be used on that date barring an extension in the use of the older forms by DHS. Otherwise, usage of old forms brings the penalty of automatic rejection of applications and petitions. Those forms are I-485, I-485 supplements A & J for adjustment of status to permanent residence, I-864, I-864A, I-864W & EZ affidavits of support, I-129 CW and CWR relating to the Commonwealth of the Northern Mariana Islands and both I-539 & I-539A for change/extension of nonimmigrant status. Form I-129 petition for nonimmigrant worker, will also change, but the effective date was changed on March 25, 2021, from 4/19/21 to July 1, 2021.
  1. Public charge – Forms I-944 Declaration of Self-Sufficiency for adjustment of status to permanent residence and DS-5540 Public Charge Questionnaire for immigrant visa processing are both canceled. The I-944 was the more important as use of the DS-5540 had been enjoined by the US District Court for the Southern District of New York on July 29, 2020. With their demise goes the need to provide evidence of health insurance or ability to obtain such upon immigrating along with the torturous putting together of asset items with expert appraisals of worth and documents of education including expert evaluations in some cases.
  1. Public charge – Gone also are forms I-945 Public Charge Bond and I-356 Request for Cancellation of Public Charge Bond which USCIS could impose in questionable cases to require applicants to post bonds beginning at $8100 adjusted for inflation annually to ensure that they would not become public charges.
  1. Public charge – Altogether, good riddance to the above rules, and financial sponsors should no longer be as afraid to guarantee the support of family-based immigrants.
  1. Venezuelan/Burma (Myanmar) TPS – Temporary protected status will be given to all eligible nationals of Venezuela and Burma in the country since at least March 9, 2021 and March 11, 2021 respectively because of the present crises in their countries. Applicants for Venezuelan TPS have already begun to apply as the procedure was set out by a Federal Register notice on March 9, 2021, allowing applications to be submitted from that date until September 5, 2021, while the same cannot be said for Burmese as there has not yet been a corresponding FR notice for Burma. The Venezuelan notice defines eligible individuals as nationals of Venezuela or individuals having no nationality who last habitually resided in Venezuela. Both designations of TPS are for 18 months, with the one for Venezuelans through September 9, 2022. The rules for Burmese will likely be the same as those outlined for Venezuelans that applications for TPS and employment authorization can be filed concurrently. (Advance parole can also be requested, but the notice does not say it can be filed concurrently). Fees are variable dependent upon age and benefits sought. For those 14-65 years of age requesting employment authorization, the fee is $545. Most grounds of ineligibility can be waived, but not those relating to convictions for crimes involving moral turpitude, multiple criminal convictions for which the aggregate sentences to confinement were five years or more, convictions for drug offenses except as related to a single offense of simple possession of 30 g or less of marijuana, for those who engaged in genocide, participated in Nazi persecutions, or are national security threats, were convicted of any felony or two or more misdemeanors committed in the United States, or those that the Attorney General determines took part in persecuting others, where there are serious reasons for believing that the person committed a serious nonpolitical crime outside the United States, where the person is believed to be a member or participant in terrorist activity, or where the person was firmly resettled in another country prior to arriving in the United States.
  1. Venezuelan/Burma (Myanmar) TPS – The Federal Register notice for Venezuela notes that those who already applied for Deferred Enforced Departure may also apply for TPS if eligible and that “USCIS encourages individuals who believe they are eligible for TPS to file for the benefit during the initial registration period announced in this Notice, even if they are also covered by DED, in case they cannot qualify for TPS late initial filing under 8 CFR 244.2 (f) (2) after DD has expired.”
  1. Interpreters at USCIS affirmative asylum interviews – In light of the COVID-19 pandemic and other stated reasons, USCIS on March 22, 2021, extended a temporary final rule that affirmative asylum-seekers having interviews at asylum offices will not be required to bring their own interpreters, and that USCIS will use contract interpreters for the interviews. Previously the practice had been for applicants to bring interpreters and USCIS would have a contract interpreter only monitor the interpretation of questions and answers. Now USCIS will only allow for applicants’ interpreters to be used in situations where the applicant does not speak English or any of the 47 languages for which contract interpreters are available. The 47 languages are: Akan, Albanian, Amharic, Arabic, Armenian, Azerbaijani, Bengali, Burmese, Cantonese, Creole/Haitian Creole, Farsi Afghani/Dari, Farsi-Iranian, Foo Chow/Fuzhou, French, Georgian, Gujarati, Hindi, Hmong, Hungarian, Indonesian/Bahasa, Konjobal, Korean, Kurdish, Lingala, Mam, Mandarin, Nepali, Pashto/Pushtu, Portuguese, Punjabi, Quiche/K’iche, Romanian, Russian, Serbian, Sinhalese, Somali, Spanish, Swahili, Tagalog, Kamil, Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, and Vietnamese.

Article: “BIDEN PLAN FOR UNDOCUMENTED AND THOSE WITH REMOVAL ORDERS IS GENEROUS”

As published in the Immigration Daily on February 22, 2021

The Biden Administration’s big immigration bill, “The US Citizenship Act”, sent to Congress on February 18, 2021, is expected to draw opposition and faces an uphill climb. In what form it will emerge from Congress if it does remains to be seen. This article will only discuss one part of the bill – the provisions for the undocumented including those with final orders of removal or deportation to apply for status as “Lawful Prospective Immigrants”.

Generally, applicants must be physically present in the US on January 1, 2021, and maintain continuous physical presence from that date until the application is approved although absences of less than 180 days during a calendar year are not to be considered violations of the residence requirement if the absences are brief, casual, and innocent, whether or not the absences are authorized by DHS. Ineligibility grounds are confined to criminal, security, human smuggling, ineligibility for citizenship, child abducting and unlawful voting bars. Deportation or removal orders are not a bar; neither is the two-year home residence requirement restriction for some J-1 visa holders.

Most criminal acts as well as human smuggling, ineligibility for citizenship, child abduction and unlawful voting are waivable.

On crimes, felonies can bar, but state laws classifying offenses as felonies for which an essential element is the individual’s immigration status are not applicable. Most felonies, except for aggravated felonies can be waived except that multiple barring crimes involving moral turpitude can only be waived if the noncitizen has not been convicted of any offense during the 10 year period prior to the application for lawful prospective immigration.

Misdemeanors can also bar, but it takes three or more, and not counted are simple possession of marijuana or marijuana related paraphernalia, any offense regarding marijuana or marijuana related paraphernalia no longer prosecutable in the state of conviction, any offense for which an essential element is the individual’s immigration status, any offense involving civil disobedience without violence, and any minor traffic ticket. A further limiting factor on misdemeanors is that there can be no multiple counting of misdemeanors occurring on the same date and arising from the same act, omission, or scheme of misconduct. Waivers can also be given for misdemeanors on a scale of waiving one if there were no offenses within five years of application, and waiving two if there were no offenses within 10 years of application.

Waiver criteria do not primarily depend upon having qualifying relatives in the country. Humanitarian purposes, family unity, or public interest are to govern waiver decisions. DHS is to consider all mitigating and aggravating factors including severity of the underlying circumstances, conduct, or violation; the length of the individual’s residence in the US; evidence of rehabilitation if applicable; and the extent to which the individual’s removal or denial of application would adversely affect the individual or the individual’s US citizen or lawful permanent resident family members.

Persons who are out of the country having been deported during the Trump Administration beginning on January 20, 2017, can be given a waiver of deportation or removal and the requirement to be physically present in the US on January 1, 2021, and apply for the program. The waiver decision would again be based on humanitarian purposes, to ensure family unity or if it would be in the public interest. Eligibility factors for such a waiver are that the individual was continuously physically present in the US for not fewer than three years immediately preceding the date on which he or she was removed or deported and that the applicant did not reenter the US unlawfully after January 1, 2021.

Deported or removed individuals who sneaked back into the country by January 1, 2021, appear to be eligible for the program.

Lawful permanent residents, persons admitted as refugees or granted asylum, or individuals who are in a period of authorized stay in a nonimmigrant status according to the records of DHS or the Department of State as of January 1, 2021, are ineligible for the program.

Applicants can apply with their family members in a single combined application, and there would be an accompanying petition to classify the dependent spouse or children of the principal applicant. The dependents can be in status. Other classes that can be in status and apply are those in nonimmigrant status solely by reason of §702 of the Consolidated Natural Resources Act of 2008, H-2A farmworkers, persons who have engaged in “essential critical infrastructure labor or services” during the Covid-19 response period, and those paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009.

Persons who are prima facie eligible to apply will be given a reasonable opportunity along with limited protections if they make the application within a reasonable period of time in that they are not to be removed before DHS makes a decision denying relief; a final order of removal has been issued; and the DHS decision is upheld by a court or the time for appealing for judicial review has expired. An exception to waiting until the end of judicial review for removal is if the order of removal is based on criminal or national security grounds.

To apply, required documentary evidence of ID includes not only traditional past legalization IDs like passport, national identity document, birth certificate/identity card with name and photograph, school ID card with name and photograph and school records, state ID card, Department of Defense uniformed services ID card, any immigration or other document issued by the US government with the name and photograph – but also any other evidence that DHS determines to be credible.

Documents establishing continuous physical presence include any other evidence determined to be credible, sworn affidavits, official records from religious entities confirming participation in a religious ceremony, and the more typical required evidence such as passport entries with US admission stamps, DOJ or DHS documents noting the person’s date of entry, schooling records, employment records, uniform services records, birth certificate for child born in the US, hospital or medical records, auto license receipts or registration, deeds, mortgages, or rental agreement contracts, rent receipts or utility bills, tax receipts, insurance policies, remittance records, travel records, and dated bank transactions.

Upon submission of the application, DHS will not deny the application until it sends out a Request for Initial Evidence (RFI), and the applicant fails to submit the evidence including requested biometric data by the deadline date. If the applicant fails to comply with the request and the application is denied, the individual can submit an amended application or supplement the existing application without an additional fee as long as the amended or supplemented application contains the required information and any fee that was missing from the initial application.

Denied applications can be appealed to an administrative appellate authority to be established or designated by DHS, and administrative appeals are limited to one for each decision. The time for appeal is 90 days from the date of service of the denial unless a delay beyond the 90 day period is reasonably justifiable. Further judicial review is allowed and governed by the rules involving immigration cases.

Approved applicants will be allowed to remain in the US for six years with travel and work authorization. A further extension of six years is possible. Applicants are eligible to apply for adjustment of status to permanent residence after five years of lawful prospective immigrant status.

For those concerned that DHS may share the submitted application information for removal proceedings or other purposes, there is a strong privacy restriction against the sharing of information except to a duly recognized law enforcement entity in connection with an investigation or prosecution of a criminal or national security offense, or for identification purposes of identifying a deceased individual upon request of an official coroner.

This part of the big bill affecting undocumented immigrants is to be fast tracked as the DHS Secretary is to issue a final regulation no later than 180 days after the President signs the legislation into law.

Hopefully the legislation will come to pass as it is long needed not only to bring people out of the shadows and to help reverse the reign of terror fostered by the Trump administration, but to help grow the economy as all serious studies have shown that immigrants-lawful and unlawful-benefit this great country socially, economically, and culturally.

[Please note that this article does not purport to be an extensive article outlining most of the “US Citizenship Act” or even cover all classes eligible to become lawful prospective immigrants. It touches on the major points of the legislation for the undocumented and those with final orders.]