Category: Articles

As published in Lexisnexis.com on December 9, 2024

As published in the Immigration Daily on December 17, 2024

This topic came up in the New York AILA/District Director Meeting of November 19, 2024. New York City and a number of other USCIS field offices in the past and even now have generally provided interpreters for adjustment of status and naturalization interviews. New York was unique in rejecting interpreters brought in by applicants in the past because of perceived fraud in interpreters not correctly translating the words so as to favor the applicant. However, there has been a big move towards having applicants once again bring in their interpreters, and in the meeting, the New York office reiterated that applicants are required to bring their own – that while the New York District may be able to provide interpreters, Language Services is a shared resource throughout the New York District; and that they are therefore not able to guarantee interpreters; and the District pointed out that the appointment notice says to bring your own interpreter.

Despite the above, anecdotal evidence informs us that the District continues to provide interpreters in most cases upon request. In an AILA New York lawyers’ group chat in October 2024, one commenter observed that each field office is its own little kingdom; that if the language is one that is common, interpreters are provided, that if a less in demand language is involved, then you may run into problems if you did not bring one. The commenter also said to make sure to let them know that an interpreter is present, or is requested, when you check in, and be prepared to be told, “We will provide one!” if you have brought your own, and “You need to provide one!” if you have not brought your own. Our law firm asked the question at the New York District Office last week at both the Manhattan and Brooklyn field offices and we were informed that telephonic translators are still offered; that most applicants request one when they come in for their interviews; that you can bring your own interpreter; and it is recommended that you bring your own translator if you have an uncommon language such as Urdu.

What if you cannot or do not want to go to the expense and trouble of bringing an interpreter who may not be used? The recommendation of the District was to request an interpreter through the Contact Center. What are the consequences of not bringing your own interpreter when the New York District office or any other office that usually provides interpreters will not or cannot provide the interpreter? There appear to be a number of options available to an officer. 1.)  Going forward with the interview if it appears that the applicant can understand some English and the officer believes that the nature of the interview can allow the case to proceed without fluency on the part of the applicant.  2.) Going forward with the interview where the officer is fluent in the applicant’s language – such as provided for in the USCIS Policy Manual Chapter 5 – Interview Guidelines | USCIS.  3.) Explaining to the applicant that no interpreters are currently available so that the applicant would not be able to be seen on time and the officer would call the applicant’s name again when the telephonic interpreter (or one from a different floor of the district office) becomes available.4.)Turning away the applicant at the interview and saying that the applicant would again be scheduled, leaving the applicant in limbo as to when he or she will receive a rescheduled appointment notice unless the officer arranges a new date before the applicant leaves. 5.) Denying the application on the basis that the notice of interview clearly indicated that the applicant needed to bring an interpreter if one was necessary. However, that is an unlikely scenario given the uncertainty surrounding the availability of Service interpreters coupled with past practice of the USCIS office, and that lacking an interpreter does not go to the merits of the application such as a missing criminal disposition. We do note the  USCIS September 11, 2023, affirmative asylum interview notice that as of September 13, 2023, applicants must bring interpreters when needed, and that “If you need an interpreter and do not bring one, or if your interpreter is not fluent in English and a language you speak, and you do not establish good cause, we may consider this a failure to appear for your interview and we may dismiss your asylum application or refer your asylum application to an immigration judge.” Affirmative Asylum Applicants Must Provide Interpreters Starting Sept. 13 | USCIS. We do not, however, believe the stricture applicable to other USCIS interviews as no such warning appears in the USCIS Policy Manual.

So it would appear that there is a risk in not bringing an interpreter to USCIS offices that usually provide one, and that the degree of inconvenience or punishment could largely be within the discretion of the District office. If the interview involves an uncommon language, the risk is greater that the field office will not be able to timely obtain the services of its own interpreter, and so it is highly recommended that, at least in those cases if not others, applicants should bring their own interpreters or make arrangements with the USCIS Contact Center prior to interview.

As published in Lexisnexis.com on October 16, 2024

As Published in the Immigration Daily on October 28, 2024

Part 1 of this two-part article discussed the situation in which the ability to keep a child’s “frozen” age [1]. under the Child Status Protection Act (CSPA) can be impacted by the parent’s failure to “seek to acquire status” during the one year period of visa availability following approval of the petition or even a shorter period of time within the one year if there is interruption of visa availability. This can have dire consequences in disallowing a previously eligible child to immigrate with the parent, forcing the parent to enter the US first as a permanent resident and then petitioning for the aged out child under the F-2B category for unmarried sons or daughters of permanent residents – a process taking approximately 8 years (for the month of November 2024, visa availability under the final action date chart of the visa bulletin is only open for those who filed F-2B petitions prior to 5/1/16 for children born in all countries except Mexico and the Philippines (which have longer wait times).

For the child to retain the original “frozen” date where the parent did not “seek to acquire status” within the time of visa availability including periods of less than a year, USCIS requires a showing of extraordinary circumstances as outlined in part 1 of this article. The Policy Manual Chapter 7 – Child Status Protection Act | USCIS explains that USCIS does not consider commonplace circumstances such as financial difficulty, minor medical conditions, and circumstances within  the applicant’s control (such as when to seek counsel or begin preparing the application package) to be extraordinary.

If attempting to explain extraordinary circumstances through a lawyer’s inaction –that there was ineffective assistance of counsel, USCIS requires the applicant to submit an affidavit explaining in detail the agreement that was entered into with the lawyer regarding the actions to be taken and what information, if any, the lawyer provided to the applicant regarding such actions; demonstrate that the applicant made a good-faith effort to inform the lawyer of the allegations brought against him or her and if the lawyer has been given an opportunity to respond; and that the applicant indicate whether a complaint was filed with the appropriate disciplinary authorities concerning any violations of the lawyer’s legal or ethical responsibilities, or explain why the complaint was not filed.

Assuming that extraordinary circumstances are established, the question becomes what period of time is covered by the circumstances, and whether such would be enough to allow the child’s CSPA age to fall under 21. USCIS gives three examples in the Policy Manual:

1. There is a break in visa availability of three months and the visa becomes available again seven months later at which time the application to seek to acquire is made immediately. Here the Policy Manual says that the applicant must include an explanation and evidence demonstrating extraordinary circumstance for not applying for the adjustment of status during the first visa availability period, and where USCIS determines as a matter of discretion that extraordinary circumstances are established, it calculates the child’s CSPA age using the date the visa first became available during the three months.
2. There is a break in visa availability of three months, and becomes available again seven months later, but in this example, the applicant does not seek to acquire when visa availability comes about, and the period of availability stretches from that point for over a year before the applicant acts. The Policy Manual states that the applicant must demonstrate extraordinary circumstances for not seeking to acquire during the first time that the immigrant visa was available in the three months and the second time that the visa was available for an entire year, with USCIS then calculating the applicant’s CSPA age when the visa first became available.
3. The third example almost mirrors the second (an extra break in visa availability added either intentionally or not) except that the applicant demonstrates extraordinary circumstances for not seeking to acquire during the second period of time of over a year when the visa was available, but does not provide any evidence demonstrating extraordinary circumstances for failing to seek to acquire when the visa first became available during the three months. The Policy Manual states that USCIS would excuse the second period of time to acquire requirement in its discretion and assign the child a CSPA age using the age on the second date that the visa became available since there was no demonstration of extraordinary circumstances for not applying for adjustment of status within the three months.

What can parents do to protect their child for whom a refrozen date may prove catastrophic for the child’s immigration?

If they are not familiar with the monthly visa bulletin of the State Department, they should become adept at reading and following it and not merely rely upon the advice of others. Reading the visa bulletin now requires perusing four charts instead of the two charts of the not so distant past. If in the US and applying for adjustment of status, parents must also be aware of the monthly adjustment charts of USCIS which determine whether the agency is using the “Final Action Dates” or “Dates for Filing” chart – because if it is using the “Dates for Filing” chart, and the immigrant visa is available under the chart for that month, that is the date upon which the seek to acquire duty begins for persons planning to adjust status in the US. It should also be noted that employment-based cases are most prone to USCIS using either chart at different times during the government fiscal year. Family-based cases in recent years have mainly seen use of the “Dates for Filing” chart.

Is there a strategy that can possibly take advantage of the current difference in view of immigrant visa availability between USCIS and the Department of State? This may be possible in limited circumstances.

Prior to the USCIS change in February 2023, both agencies were in lockstep that a visa was available only when the priority date was reached on the “Final Action Dates” chart. Now the State Department still considers an immigrant visa to only be available under that chart (9 FAM 502.1-1 (D) (a) (3) https://fam.state.gov/fam/09FAM/09FAM050201.html despite continual calls by many for the Department to adopt the USCIS interpretation since that would benefit more children to have their priority dates frozen on an earlier date. The dichotomy between USCIS and the State Department views can possibly be explored if the difference in time of the “Dates for Filing” and “Final Action Dates” charts is narrow enough so that the child’s CSPA age remains  under 21 when the “Final Action Dates” chart opens to the priority date. The family could consular process their immigrant visas instead of going through the adjustment of status process in the States. At the time of interview, the consulate or embassy would only look at the “Final Action Dates” chart to determine eligibility of the child on the issue of “sought to acquire”.

So, for example, the child is in the US with a CSPA age of 20 when age is frozen under the “Dates for Filing” chart, but the family does nothing for close to a year when the immigrant visa is available. The “Final Action Dates” chart opens to the priority date the month that the child turns 21. If the family becomes aware of or is already cognizant of CSPA rules, the family then has a choice of a rushed I-485 filing or taking advantage of the fact that for consular processing, the priority date just became current for the first time and that they have one whole year to take action to “seek to acquire” immigrant status. So this family may decide to switch from I-485 to consular processing, have their approved petition sent to the National Visa Center (NVC), and take one of the steps required to satisfy the “sought to acquire” requirement within one year of the priority date becoming current.

Although this is a option that may have risk, especially associated with the time that it may take an approved petition designated for adjustment of status to be sent to the NVC and with the possibility of the “Final Action Dates” chart backlogging and its attendant consequences, this may be a route that parent and child are willing to look at.

It should be noted that, barring an explanation of extraordinary circumstances, this may be the only route for the family in the above situation that fails to file the rushed I-485 and allows one year to expire under the “Dates for Filing” chart.

Summary:

With the USCIS policy alert and Policy Manual now emphasizing the need to prove extraordinary circumstances where the priority date became current and no action was taken during any length of time that the date was open, parents should be aware of how the opening and backlogging of visa categories,  and use of the different visa and adjustment charts of the Department of State and USCIS may adversely affect the ability of the child to immigrate with them and perhaps even become proactive on their child’s behalf.

[1] Age is frozen for a child under the CSPA on the date that an immigrant visa petition is filed in the immediate relative category, or when an I-589 asylum application is filed by the parent, or on the date of the parent’s I-590 refugee interview with a USCIS officer, or when a backlogged immigrant visa petition for a parent is approved and the immigrant visa becomes subsequently available.

As published in Lexisnexis.com on October 16, 2024

As published in the Immigration Daily on October 25, 2024

There are two stages to a child turning 21 being entitled to immigrate with the parents under the Child Status Protection Act (CSPA) – being below the age of 21 at the time of final immigration taking into account the addition of time credited while a petition is pending in visa categories having backlogs, and seeking to acquire immigrant status within one year of immigrant visa availability.

In USCIS’s policy alert of September 25, 2024, “Age Calculation under the Child Status Protection Act”, PA-2024-23, 20240925-CSPAAgeCalculation.pdf (uscis.gov) the agency addressed the situation in which a child may have made it age-wise to have his or her age “frozen” before 21 under the CSPA, but possibly losing the “frozen” date where the visa category temporarily becomes unavailable before the child seeks to acquire, and then becomes available again during the one year of visa availability at which time the child takes proper steps to seek to acquire status before the year is out.

USCIS had previously ruled that where an applicant had not sought to acquire status within one full year of immigrant visa availability, the applicant would not be entitled to the first frozen date and only allowed the age on the date on which he or she sought to acquire unless there was a showing of extraordinary circumstances.

The policy alert cites the USCIS Policy Manual Volume 7, Chapter 7, Child Status Protection Act, Chapter 7 – Child Status Protection Act | USCIS which gives in greater detail the significance of seeking to acquire where age is at issue. An example that we can quite readily think of is a child whose parent is immigrating through the EB-3 category for employment-based professionals, and whose child is already 22 years of age, but is able to immigrate with the parent because his or her CSPA age is only 20 years 8 months at the time of visa availability because of the time that it took USCIS to adjudicate the petition. In this case, the parent should take further steps to ensure that the “seek to acquire” requirement is met.

How does one “seek to acquire”? The Policy Manual outlines the different ways:

• Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);
• Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;
• Paying the immigrant visa fee to DOS;
• Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);or
• Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

In our example, because of personal or business reasons or slowness of the legal professional handling the case, the parent does not take the further step of seeking to acquire status within 4 months and the EB-3 category unfortunately becomes unavailable and does not become available again until six months later when the child’s CSPA age is 21 and 6 months (if refrozen).

Is the child still able to immigrate? The law allows an applicant to seek to acquire within one full year of visa availability and here the visa was only available for four months. So the child is still allowed time to seek to acquire. But the question is whether the child is still entitled to the first frozen date or whether that date is no longer valid and he or she can only have age frozen again with the date when the parent takes the necessary step to seek to acquire status.

In the policy alert and in the Policy Manual, the applicant must prove extraordinary circumstances to be able to retain the first frozen date. That means being able to prove the reason for which he or she did not apply during the first period of availability, even though it was less than one year.

In looking at the factors of extraordinary circumstances, the Policy Manual lists such factors as showing that:

• The circumstances were not created by the applicant’s action or inaction;
• The circumstances directly affected the applicant’s failure to seek to acquire within the 1-year period; and
• The delay was reasonable under the circumstances.

In giving examples, the manual cites the following:

• Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period;
• Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter;
• Death or serious illness or incapacity of the applicant’s attorney or legal representative or a member of the applicant’s immediate family; and
• Ineffective assistance of counsel, when certain requirements are met.

The Policy Manual did not limit the reasons to the above.

Thus it appears that a child’s age once frozen under the CSPA is not necessarily permanently frozen, and can become unfrozen and perhaps refrozen with a later date even if the child seeks to acquire within the one-year limit, which may certainly be undesirable to the family if the child’s CSPA age would then exceed 21.

(We will next discuss specific examples as brought forth in the Policy Manual and give suggestions on how to avoid being impacted by age being refrozen in Part 2).

With the first visa bulletin for Fiscal Year (FY) 2025, there was not much activity in family-based cases, but much for employment-based ones. For both family-based charts (final action dates and dates for filing), the dates were the same as in the September 2024 visa bulletin for Rest of World (ROW) cases. The final action dates chart changes were confined to Mexico and India; and the dates for filing chart changes were specifically for Mexico and the Philippines.

For employment-based cases, the final action dates chart showed EB-1 (ROW) remaining current with China moving up one week to 11/8/22 and India remaining at 2/1/22; EB-2 ROW staying at 3/15/23 with China remaining at 3/22/20 and India 7/15/12; EB-3 ROW advancing almost 2 years to 11/15/22 with China backlogging five months to 4/1/20 and India advancing one week to 11/1/12; EB-3W ROW remaining at 12/1/20 with China remaining at 1/1/17 and India moving up one week to 11/1/12; EB-4 worldwide remaining at 1/1/21 with non-minister certain religious workers becoming unavailable due to lack of extending legislation; EB-5 unreserved remained current with China advancing eight months to 7/15/16 and India one year one month to 1/1/22, and all the reserved EB-5 categories remained current.

For the EB dates for filing chart, EB-1 ROW remained current with China staying at 1/1/23 and India advancing two months one week to 4/15/22; EB-2 ROW advanced four months one week to 8/1/23 with China advancing four months to 10/1/20 and India six months one week to 1/1/13; EB-3 ROW moved up one month to 3/1/23 with China backlogging eight months two weeks to 11/15/20 and India advancing eight months one week to 6/8/13; EB-3W ROW advanced five months two weeks to 5/22/21 with China moving up one year to 1/1/18 and India six months to 6/1/13; EB-4 including certain religious workers worldwide remained at 2/1/21; EB-5 ROW remained current with China moving backwards three months to 10/1/16, India staying at 4/1/22, and all the reserved EB-5 categories remained current.

For adjustment of status, USCIS indicated that it would use the dates for filing chart during the month for both family-based and employment-based cases. This is the first time that USCIS has used the B chart for EB cases since February 2024.

Looking forward, we would all hope that the Department of State continues to use all efforts to make use of all visa numbers as it has been doing during this fiscal year and as evidenced by its closing of numerous employment-based categories and barring further issuance of immigrant visas in them for the balance of the FY 2024 fiscal year.

As published in the Immigration Daily on August 13, 2024

What is a second Donald Trump presidency shaping up to look like? Will Trump stop and smell the roses, happy that he is back in the White House and ease back into the routine of the Oval Office? One would hope for a mellower and happier Trump – that will unfortunately not be happening. He already has a playbook for action in the first 180 days in office to bring the nation back to the end of first Trump presidency. Although Mr. Trump denies knowing anything about the Heritage Foundation’s Project 2025 900 odd page document, “Mandate for Leadership”, https://static.project2025.org/2025_MandateForLeadership_FULL.pdf,  those who worked on the document include a number of former Trump officials and aides. A pattern with former president Trump is his transactional character, saying whatever he believes in the moment will help him including currently backing off on the abortion issue, making comments favoring electric vehicles now that Elon Musk is supporting his campaign financially (the Wall Street Journal reported the contribution size as $45 million per month, which Mr. Must later denied) when Trump previously said that Joe Biden’s encouraging the transition to electric vehicles would result in an economic “bloodbath” in the US economy, and now promising not to cut a penny from Social Security or Medicare after saying in March 2024 that there was a lot that could be done with entitlements in terms of cutting. So it is a long stretch to believe that he knows nothing of the report. On credibility, the Washington Post counted 30,573 false or misleading statements during Mr. Trump’s first tour of the White House.

On immigration, the main topic of this article, Mr. Trump and his advisors have promised a massive deportation effort aiming to remove as many as 20 million people from the US through forced expulsions and deportation camps. He has said that under his leadership, they would use all necessary state, local, federal, and military resources to carry out the largest domestic deportation operation in American history, including deputizing local police officers, and not ruling out the possibility of building new detention camps for processing deportations.

The enmity of Mr. Trump to immigrants has been astounding, saying that they poison the blood of the nation or that they come from shithole African countries or characterizing Mexican border crossers as rapists and criminals.

Specific proposals of the Heritage Foundation document include:

• Ending the ability of US citizens to bring most classes of family over that they are able to presently sponsor.
• Ending the Diversity Visa program under which persons without sponsors or US family members are able to have a shot at permanent residence through a lottery program, bringing diverse people from many countries into the US.
• Revamping the H-1B program to bring in only the “best and brightest” at the highest wages while simultaneously ensuring the US workers are not being disadvantaged by the program.
• Capping and phasing out the H-2A Visa program for agricultural seasonal workers although also presenting an opposition argument.
• Consider phasing out the H-2B visa program for nonagricultural seasonal workers, and ensuring that the DHS Secretary will not use his or her discretion to increase the number of such visas above the statutorily set limits although also presenting an opposition argument.
• Move USCIS to strive to increase opportunities for premium processing to expedite processing times since it provides an opportunity for a significant influx of money into the agency which is not currently available.
• Bring back every rule related to immigration that was issued during the Trump administration and canceled during the Biden administration.
• Examine and consider withdrawing or overturning every immigration decision rendered by the Attorney General during the Biden administration.
• Target lawyers that the government labels as advancing completely meritless arguments before the immigration courts.
• Instruct the State Department to allow national security concerns to dominate over diplomatic concerns in issuing visas under the Diversity Visa program, F student visa program, and J exchange visitor visa program – and to eliminate or significantly reduce the number of visas issued to foreign students from “enemy nations”.
• Refocus Homeland Security Investigations (HSI) back on immigration offenses.
• End ICE’s use of termination and administrative closure of cases in the immigration courts.
• Instruct USCIS that the focus is not on giving benefits, but to return focus on vetting, examining the base eligibility of applicants, and fraud detection.
• Take regulatory action to limit the classes of aliens eligible for employment authorization.
• Prohibit the use of parole except in matters that are certified by the DHS Secretary for humanitarian or significant public benefit reasons – with the prohibition on the use of parole in any categorical circumstance.
• Restrict prosecutorial discretion.
• Withdraw and reissue a new regulation on criteria to determine which applicants for immigration are considered to pass the public charge requirement.
• Repeal TPS (Temporary Protected Status) designations for persons from countries in distress.
• Move Congress to permanently authorize E-Verify and make it mandatory although it is far from a perfect program.

These are some of the main changes in the field of immigration to be pursued in a second Trump presidency. The rapidity of the changes promises to be breathtaking. A new Trump administration would try to overwhelm opposition by the sheer number of immediate actions in the field. Of note is that the document would supercharge the power of the presidency in immigration and other fields by calling for the replacement of much of the federal work force with political appointees, who could be hired and fired at will.

Aside from the venom, immigrants – even undocumented immigrants – are beneficial to the country economically, culturally, and civilly. A number of studies over the years including one just conducted by the nonpartisan Congressional Budget Office in July 2024, “Effects of the Immigration Surge on The Federal Budget and the Economy”, concluded that a surge of immigrants already here and expected to come between 2021-2026 would lower the federal deficit by nearly $1 trillion over the next decade; that as most of the population would be of working age, they would draw less in terms of federal, state and local benefits although the CBO report did not take into account state and local costs; that they would pay $788 billion in taxes and generate $387 billion of extra federal revenue through their effects on the overall economy. This follows a number of articles over the years extolling the beneficial effects of increased immigration on the country’s economy. Culturally, immigrants have always enriched the melting pot of America in bringing their diverse languages, ways of living, food, religions, and points of view. And despite Mr. Trump’s eagerness to highlight every instance of immigrant crime, crime statistics show that immigrants commit crimes in far less numbers and percentages those of the general American populace. A study published by researchers from the University of Wisconsin–Madison in 2020, Undocumented immigrants far less likely to commit crimes in U.S. than citizens (wisc.edu) found that, compared to undocumented immigrants, U.S. citizens were:

• • Twice as likely to be arrested for violent felonies.
  • Two-and-a-half times more likely to be arrested for felony drug crimes.
  • Over four times more likely to be arrested for felony property crimes².

Another study, titled “Comparing Crime Rates Between Undocumented Immigrants, Legal Immigrants, and U.S. Citizens”, also highlighted that U.S.-born citizens are more likely to be arrested for violent crimes, drug crimes, and property crimes relative to undocumented immigrants.

The US requires a President who is able to look at facts and not distort them for his or her personal ambition and political aims. A steady hand promoting the interests of the country is a necessity over a President frustrated in the fine details of governing and making wild stabs of decision-making based upon whatever is in his or her mind at the present moment. Considered decision-making based upon what is best for the country and not promoting a political agenda right or left is the mark of what will be a great President. From promised mass deportation efforts to the Heritage Foundation’s planned 180 days sprint to enact restrictive rules in immigration that have no benefit to the country, there is good cause to doubt that a second term for Donald Trump will lift the country.

As published in the Immigration Daily on July y 24, 2024

Relating to the Executive Order of June 17, 2024, affecting DACA holders and other undocumented university and college graduates and the June 18, 2024, fact sheet put out by the White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together | The White House that the announcement would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited US institution of higher education in the United States, and who have received an offer of employment from a US employer in the field related to their degree, to more quickly receive work visas, the latest update to the Department of State’s “Easing the Nonimmigrant Visa Process for U.S. College Graduates (state.gov)” on July 15, 2024, sees the Department still seemingly directing its energies in awaiting only H-1B visa applications as, in answer to the question “How long are current interview appointment wait times for employment based nonimmigrant visas and overseas posts?”,  it said that interview wait times for H-1B visas are minimal at most of its overseas posts.

It further stated that updated waiver guidance for consular officers was issued on July 15, 2024. §212 (d) (3) waivers of inadmissibility are necessary in most cases for these classes of applicants to obtain visas at the consulates due to the 3 or 10 year bars attendant to remaining unlawfully in the US for six months or one year respectively after the age of 18. Although not going into detail on waiver procedure in the update itself, a look at the Foreign Affairs Manual changes (new parts in bold) https://fam.state.gov/fam/09FAM/09FAM030504.html shows the new guidance for consular officers:

9 FAM 305.4-3(C)  (U) Factors to Consider When Recommending a Waiver

(CT:VISA-2025;   07-15-2024)

a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement.  The law does not require that such action be limited to humanitarian or other exceptional cases.  While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel.

b. Unavailable

c. (U) You should consider the following factors, among others, when deciding whether to recommend a waiver:

    (1)  (U) The recency and seriousness of the activity or condition causing the applicant’s ineligibility;

    (2)  (U) The reasons for the proposed travel to the United States; and

    (3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.  NOTE: In general, you should consider cases where the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the United States, to have a positive effect on U.S. public interests;

9 FAM 305.4-3(E)(2)  (U) When to Submit Applications to the Department for Review

(CT:VISA-2025;   07-15-2024)

a. (U) If an applicant or interested party requests a waiver after you decline to recommend one, you should refer the request to the Department for review if the case meets one of the criteria below.  Supervisor concurrence is required if you find that the applicant’s waiver request does not meet one of the listed criteria:

    (1)  (U) Foreign Relations:  Refusal of the NIV application would become a bilateral irritant or be raised by a foreign government with a high-ranking U.S. government official;

    (2) (U) National Security:  Admission to the United States would advance a U.S. national security interest;

    (3) (U) Law Enforcement:  Admission to the United States would advance an important U.S. law enforcement objective;

    (4) (U) Significant Public Interest:  Admission to the United States would advance a significant U.S. public interest including the positive effect of the planned travel on U.S. public interests described above in 9 FAM 305.4-3(C)(c)(3)

9 FAM 305.4-3(F)  (U) Waiver Expedite Requests

(U) As described in 9 FAM 305.4-3(C)(c)(3) with regard to recommending a waiver, there is a clear and significant U.S. public interest in asking CBP/ARO to expedite a waiver request if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States. 

 The groundwork now appears laid for consular interviews although with no guarantee that the applicant will receive the visa. Inadmissibility grounds or doubts concerning the underlying petition may still derail the visa quest.

The Department of State appears prepared to entertain and expeditiously work with DHS on H-1B visa applications and inadmissibility waivers from DACA holders and other undocumented college or university graduates, but the Department update and FAM changes do not speak to any contemplated new program or other visa categories, a concern expressed in our last article, Article: Before Federal Register Notice Appears, Questions Relating to the Executive Order of June 17, 2024, Affecting DACA Holders and Other Undocumented University and College Graduates by Alan Lee, Esq – ILW.COM Discussion Board. The emphasis on H-1B visa applications may very well be centered on the dual intent character of the visa in that applicants do not have to prove nonimmigrant intent or a residence in their home countries during visa interviews. Because of the numbers limitation on cap H-1B visas (only 85,000 approximately per year) and the current severe competition making selection a form of “lottery,” many are eagerly awaiting the anticipated Federal Register notice to see whether the Executive Order’s scope will cover more than the H-1B program.

As published in the Immigration Daily on June 28, 2024

The June 18, 2024, fact sheet put out by the White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together | The White House said that the announcement would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited US institution of higher education in the United States, and who have received an offer of employment from a US employer in the field related to their degree, to more quickly receive work visas; and that recognizing that it is in our national interest to ensure that individuals who are educated in the US are able to use their skills and education to benefit our country, the Administration is taking action to facilitate the employment visa process for those who graduated from college and have a high skilled job offer, including DACA recipients and other Dreamers.

To facilitate this, the DHS Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families | Homeland Security said that DHS will join the Department of State in an effort to more efficiently facilitate certain employment-based nonimmigrant visas for eligible individuals, including Deferred Action for Childhood Arrivals (DACA) recipients and undocumented noncitizens, who have graduated from an accredited US institution of higher education – by clarifying and enhancing the existing process, the Department of State’s policy will give US employers increased confidence that they can hire the talent they need, and that they will be able to quickly get to work – and that DHS will implement the Department of State’s policy update.

Does the Administration plan to only utilize existing pathways of nonimmigrant visas? Or is there planning for another type of program like entrepreneur parole that was declared by Executive Order in President Obama’s Administration? If not, the more common visas would appear to be H-1B specialized occupation workers, O-1 extraordinary workers, and TN professional visas for nationals of Canada or Mexico. If confined to the existing pathways, it would appear that the numbers to be benefited will be not be large except for TN as many of the undocumented, DACA holders and other Dreamers are from Mexico. Most H-1B visas are capped at 85,000 per year, and with the number of applicants selected for FY 2025 registration thus far only 25.6% (120,603 of 470,342 registration candidates) https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process, the addition of undocumented graduates without corresponding increase in H-1B numbers would only drive the percentage down. H-1B visas without numerical limit are available for cap-exempt employers, but those are confined to hirings by institutions of higher education, nonprofit organizations affiliated with institutions of higher education, nonprofit research organizations, and government research institutes.

The H-1B of all existing pathways is the ideal vehicle except for the limited numbers of available visas. It has the advantage over other visas except for L-1 intracompany transferee visas (generally inapplicable to the situation because of the requirement of prior overseas one year employment as manager, executive, or specialized knowledge worker) of being a dual intent visa meaning that applicants can still receive visas although they have no intent to return to their home countries. This is not the case with other visas which either require nonimmigrant intent or exist in a gray area. TN requires nonimmigrant intent.

F-1 optional practical training (OPT) and the possible follow-up STEM OPT do not appear to be work visa options according to the stated requirement that applicants have a high skilled job offer from an employer as OPT is generally seen as training in which the applicant is gaining skills rather than using them professionally. In addition, it is a visa requiring nonimmigrant intent.

It appears at this stage that the Department of State is mainly contemplating traditional visas that are precipitated by USCIS approval on form I-129, which likely means H-1B and O-1 petitions generally. Its communiqué, Easing the Nonimmigrant Visa Process for U.S. College Graduates (state.gov) in answer to the question “How Can an Individual Apply for Petition-based Nonimmigrant Work Visa?”  said “Before an applicant can apply for an H-1B or other temporary worker visa, US Citizenship and Immigration Services (USCIS) must generally first approve a petition for a nonimmigrant worker, form I-129… Individuals may apply for a nonimmigrant visa after USCIS has approved the petition…”

Assuming that work visa eligibility is established, coordination between DHS and the Department of State in the form of §212 (d) (3) expedited waivers of inadmissibility due to the 3 or 10 year bars attendant to remaining unlawfully in the US for six months or one year respectively after the age of 18 could solve the problem of return to the US on a temporary basis to work for undocumented graduates, but is there a contemplated solution for situations in which consular officers may have objections to the issuance of visas on other grounds? Would the failed applicants be allowed to return in some way?

For persons applying under TN, the Department of State would not be involved with waivers, and such would be a procedure handled solely by Customs and Border Protection (CBP) through its Admissibility Review Office (ARO).

While we highly applaud the Administration’s initiative, we hope that it has considered or will consider the above while publishing its Federal Register notice in the near term.

As published in the Immigration Daily on February 12, 2024

DHS’s February 2, 2024, final rule for H-1B registration, “Improving the H-1B Registration Selection Process and Program Integrity”, included the most important attempt at reform of the H-1B registration system – adding fairness – one beneficiary, one chance. The system will now be beneficiary-centric under which the beneficiary will have one chance of being selected regardless of how many organizations apply for him or her. The system to be replaced allowed multiple organizations to sponsor candidates for registration, in effect giving many candidates more selection chances. Over the years since the first registration in 2020 for the FY-2021 H-1B cap, gaming of the system became endemic as the unscrupulous saw little penalty in conspiring to give applicants more company sponsorships, and the number of registrations zoomed from 274,237 in FY- 2021 to 308,613 in FY-2022, 483,927 in FY-2023, and in the last year, 780,884 for FY-2024. Without the intervention, registrations could conceivably have topped 1 million for this year.

The rule outlines timing and procedure for this year’s registration:

Timing –

• Registrants will be able to create new accounts beginning at noon Eastern on 2/28/24.
• Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until 3/6/24 to enter beneficiary information and submit the registration with the $10 fee.
• The initial registration period will open at noon Eastern on 3/6/24 and run through noon Eastern on 3/22/24.
• USCIS intends to notify account holders and upload selection notifications to their accounts by 3/31/24.

Procedure –

• The $10 fee remains for this year (it is projected that the registration fee will rise to $215 next year).
• The process will be beneficiary-centric instead of organization-centric.
• Online filing of non-cap Form I-129’s (Petition for a Nonimmigrant Worker) and associated I-907’s (Request for Premium Processing Service) will begin on 2/28/24.
• Online filing of H-1B cap cases and associated I-907’s begins on 4/1/24.
• USCIS will transition paper filing location for H-1B and I-907 petitions from service centers to the USCIS lockbox with the new filing locations to be announced in March.

To further combat fraud in the registration process, participating applicants must have a valid passport or travel document at the time of registration. Without such, they cannot participate. While renewal of the passport or travel document can be done later, the final rule says that “Such circumstances could include… a change in passport number or expiration date due to renewal or replacement of a stolen passport, in between the time of registration and filing the petition.”  Other parts of the rule have words like “requiring valid passport or travel document information” … “While DHS recognizes that some individuals may not possess a valid passport or travel document, DHS has a strong interest in requiring passport or travel document information for each beneficiary….”

Emphasis was also placed upon this in the USCIS email announcement on January 30, 2024, specifying that, “USCIS will require registrants to provide valid passport information for valid travel document information.”

This year promises to be much different from past registration years. USCIS has already projected a much smaller number of registration applications than last year that will turn into a higher number of successful registrations if USCIS selects in the same average range of numbers as in the three years prior to the past year. So organizations and applicants interested in cap H-1B petitions should get ready for an interesting ride beginning this month.

It should be noted that unless the new January 31, 2024, final rule on fee increases, “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” is delayed or stopped by legal action, most organizations with selected registrants will have to pay enhanced fees to file H-1B petitions. For most nonprofits, the fees will remain the same. For small for-profit employers (25 or less full-time employees in the United States), the increases will be less, while those on larger for-profit employers (with 26 or more full-time employees in the United States) will be more. In addition to the regular add-ons ($500 fraud fee and either $750 or $1500 job training fee), both of the latter categories will have to pay a $600 asylum program fee, and the larger for-profit employers an enhanced $780 I-129 fee instead of the regular $460 fee. Fee increases are slated to go into effect on April 1, 2024.

As published in the Immigration Daily on December 13, 2023

October marks the beginning of the government fiscal year, in years past signaling a new year of visa numbers. August and September were generally “dead” months as we eagerly awaited the new visa allocations of October. Now after minimal bulletin changes from October-December, we get a visa bulletin chock-full of changes. Why? Have Visa Office operations changed so much that significant date changes must wait until the second quarter of the fiscal year?

That being said, the January visa bulletin is designed to bring smiles to the faces of many as there are no retrogressions, only advances.

Family-based final action dates: F-1 (adult single sons and daughters of US citizens) remained the same for ROW (Rest of the World) at 1/1/15 while Mexico and the Philippines remained at 5/1/01 and 3/1/12 respectively; F-2A (spouses and children under the age of 21 and unmarried of LPRs) advanced almost 9 months to 11/1/19 for all countries except Mexico which advanced 8 ½ months to 10/22/19; F-2B (adult single sons and daughters of LPRs) one week for ROW to 10/1/15 and the big jump was Mexico advancing 17 months three weeks to 10/22/03 while the Philippines remained at 10/22/11; F-3 (adult sons and daughters of USCs) up 3 ½ months to 4/22/09 for ROW and Mexico advanced 5 months 2 weeks to 9/8/98 and the Philippines remained at 6/8/02; and F-4 (siblings of USCs) ROW moved one month to 5/22/07, India advanced one month one week to 11/15/05, Mexico stayed at 9/15/00, and the Philippines moved one month three weeks to 10/15/02.

Family-based dates for filing: No changes.

Employment based final action dates: EB-1 (extraordinary aliens, outstanding professors and researchers, and multinational executives and managers) stayed current for ROW with China advancing four months three weeks to 7/1/22 and India three years nine months to 9/1/20; EB-2 (advanced degree holders or exceptional aliens) ROW advanced three months two weeks to 11/1/22 with China being up two months one week to 1/1/20 and India two months to 3/1/12; EB-3 (professionals or skilled workers) ROW moved up nine months to 8/1/22 with China advancing eight months one week to 9/1/20 and India one month to 6/1/12; EW-3 other workers (unskilled) ROW advanced one month to 9/1/20 and China one year to 1/1/17 and India one month to 6/1/12; both categories of EB-4 (religious) moved to 5/15/19 for all countries, representing an advance of four months two weeks for clergy and the reopening of the category from unavailable for certain religious workers because of passed legislation; EB-5 ROW (immigrant investors) remained current with China advancing two months one week to 12/8/15 and India one year 11 ½ months to 12/1/20. All set aside EB-5 numbers remained current. 

Employment based dates for filing: EB-1 ROW remained current with China advancing five months to 1/1/23 and India 1 ½ years to 1/1/21; EB-2 ROW moved up one month two weeks to 2/15/23 while China and India remained the same at 6/1/20 and 5/15/12 respectively; EB-3 ROW remained at 2/1/23 while China advanced 10 months to 7/1/21, India remained at 8/1/12 and the Philippines at 1/1/23; EW-3 other workers remained at 12/15/20 while China remained at 6/1/17, India at 8/1/12, and the Philippines at 5/15/20; both categories of EB-4 moved up six months for all countries to 9/1/19; EB-5 ROW remained current while China and India stayed at 1/1/17 and 4/1/22 respectively. All set aside EB-5 numbers remained current.

For the month of January, USCIS still continues to use dates of filing for both family-based and employment-based cases for adjustment of status.

One hopes that visa chart progression continues in coming months, but such will seemingly depend upon the inner operations of the State Department.

As published in the Immigration Daily on November 24, 2023

This is the fourth of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is reinstating the deference policy which instructs officers to consider prior determinations involving the same parties and facts, when there is no material error with the prior determination, no material change in circumstances or in eligibility, and no new material information adversely impacting eligibility. Here USCIS may consider including the word “clear” to emphasize that errors, changes, eligibility, and adverse information should not only be “material”, but should be “clear” errors, changes, eligibility, and adverse information to reduce the chances that a decision will just be made on difference in opinion between two officers.

Eliminating the itinerary requirement for H programs – the reason being that the itinerary is largely duplicative of information already provided in the LCA.

Where USCIS approves an H-1B after the initially requested validity date has ended (typically through favorable motion to reopen, reconsider, or appeals), USCIS may issue an RFE asking whether the petitioner wants to update the dates of intended employment, and if the petitioner wishes, it can submit a different LCA that corresponds to the new requested validity dates even if the LCA is certified after the date the H-1B petition is filed. USCIS would then approve the H-1B petition for the new requested period of time for which eligibility has been established rather than require the petitioner to file a new or amended petition.

H-1B cap exemptions are changing in a way that may benefit a number of organizations in that the  requirement that a nonprofit research organization be “primarily engaged” in basic research and/or applied research and governmental research organization that its “primary mission” is the performance or promotion of basic research and/or applied research would be changed to replace “primarily engaged” and “primary mission” with “a fundamental activity of” to allow for such organizations that conduct research as a fundamental activity, but are not primarily engaged in research or where research is not the primary mission, to meet the definition of a nonprofit research or governmental research entity.

On the same subject of cap-exempt organizations, and those working for companies on the site of the exempt organization, DHS proposes to change the phrase “the majority of” to “at least half” to clarify that H-1B beneficiaries who equally split their work time between the exempt entity and a nonexempt entity, may be eligible for cap exemption. In this context, and taking into account that many positions are performed remotely, the proper focus is on the job duties, rather than where the duties are performed physically. Also that the requirement that a beneficiary’s duties “directly and predominantly further the essential purpose, mission, objectives, or functions” of the qualifying organization would be replaced with the requirement that the duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the organization.

USCIS is proposing an automatic extension of cap gap work authorization from September 30 to April 1 in the next year to deal with delayed adjudications and avoid potential disruptions in employment authorization. This will cover automatic extension of F-1 status, post completion OPT and STEM OPT.

USCIS is clarifying that petitioners can put in any date after October 1 for cap cases as long as the requested date does not exceed six months beyond the filing date without fear of the petition being rejected.

On beneficiary-owners, DHS wants to encourage beneficiary owned businesses to participate in the H-1B program with the idea that the beneficiary must perform specialty occupation duties the majority of the time even though he or she may perform duties that are directly related to owning and directing the business. The non-specialty occupation duties must be directly related to owning and directing the petitioner’s business although a beneficiary-owner may perform some incidental duties, such as making copies or answering the telephones. Non-specialty occupation duties may include but are not limited to signing leases, finding investors, and negotiating contracts. (It would appear that this petition must give a breakdown of the percentage of time spent performing each job duty). DHS is trying to set reasonable conditions for when the beneficiary owns a controlling interest, meaning that the beneficiary owns more than 50% of the petitioner or when the beneficiary has majority voting rights in the petitioner. There will be limitations in that the time given for initial approval and first extension is 18 months and any subsequent extension will not be limited and can be approved for up to three years.

This concludes our series.

The above article and the ones preceding it do not entirely cover all parts of the proposed rule. Readers can peruse the complete proposal in the Federal Register, Volume 88, No. 203, October 23, 2023. Parts covered were those deemed most important and interesting by this writer. In summing up, other than the beneficiary centric proposal, there are some novel propositions, some included as the result of successful court challenges, and some that just make common sense. The DHS comment that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings” is nonsensical in light of the catastrophic outlined abuses if the proposed beneficiary centric system is not ready in March.