Category: Articles

As published in the Immigration Daily on October 12, 2022

The last two years have been difficult for family preference cases, especially where the beneficiaries are overseas as scheduled interviews have been few and final visa availability dates largely static with the exception of Mexico. In the meantime, the employment categories have prospered under the rule that any family-based visas not used in one fiscal year are transferred over to the employment-based quota limit in the next fiscal year. The normal allotment of employment-based cases is 140,000, but in FY-2021 reached 262,288 and in the just concluded FY-2022 281,507. That means that in FY-2020 ending on 9/30/20, 122,288 family preference visas were left on the floor while in the year ending 9/30/21, 141,507 family preference visas were left unused. For FY-2023, the Department of State has projected employment-based visa usage to be approximately 200,000, meaning that 60,000 family-based visas are expected to have been left on the cutting room floor in FY-2022.

The effect of pandemic fears restricting the number of interviews at consulates and embassies and State Department priorities in light of staffing losses have checked the ability of US consulates and embassies to process family-based preference cases in which the beneficiaries are largely overseas as opposed to employment-based situations in which the beneficiaries are mostly in the US and working under temporary visas. Immigrant visa issuance was initially hamstrung by the Diplomacy Strong policy instituted in the early days of the pandemic which initially dictated a temporary shutdown and then visa services reopening on a limited basis post-by-post beginning on 7/15/20. In September 2021, the Department issued a memorandum setting prioritization of family preference categories as third tier priorities beneath tier 1 (Immediate relative intercountry adoption visas, age-out cases, certain special immigrant visas, and emergency cases determined on a case-by-case basis) and tier 2 (immediate relative, fiancé(e) and returning resident visas). In the 9/13/21 “Immigrant Visa Prioritization,” memo, the Department made clear that “This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancé(e) cases as possible with the goal of, at least at a minimum, preventing the backlog from growing in these categories and hopefully reducing it. However, the prioritization plan also instructs posts to schedule and adjudicate some cases in Tier Three and Tier Four each month.”

What are the chances that we will see the family preference classes make some moves forward or backward worldwide in FY-2023 (10/1/22 – 9/30/23)? So far, in terms of visa chart movement in October and November, there is no movement at all except for advances for Mexico. A quick synopsis of family-based movement in the latest visa chart is the following:

The November 2022 visa bulletin just came out and held no surprises and hardly any movement. FB final action dates chart: No movement except for Mexico F-2B advancing two months to 6/1/01, F-3 two weeks to 11/1/97, and F-4 two months to 8/1/00. FB dates of filing chart: Again, no movement except for Mexico F-1 advancing one year to 12/1/02, F-2B three months three weeks to 1/1/02, F-3 two months to 6/15/01, and F-4 two weeks to 4/1/01.

However, there appears to be some hope as the State Department hiring of consular staff is going well and in a 10/7/22 webinar between the American Immigration Lawyers Association and Department of State, DOS representatives affirmed that they will be fully staffed by the end of 2023. The question of whether family preference visa interviews and issuances will be attended to will likely come down to the question of priorities. In what direction will the new hires be pointed? It will not only be competition among the three tiers, but other parts of consular services that draw the attention of consular staff. DOS representatives spoke of competing interests such as nonimmigrant visas including visitors and students which help the economy and pointed to good work being done with diversity visas.

In light of the constant advancement of the Mexico immigrant visas in past months, it is possible that the immigrant visa unit there has taken liberties with the prioritization plan. If so, other immigrant visa issuing posts may be encouraged to move in the same direction

Just looking at the state of affairs in family preference categories and number of unused visas, however, attention must be given to interviewing qualified applicants, issuing immigrant visas, evaluating visa demand, and then moving the categories forwards or backwards just as in pre-pandemic days. In looking through past visa bulletins, the family preference final action dates have not changed and have sat stagnant except for Mexico since September 2021, one year and two months ago. It is almost as if the State Department has set up a placeholder final action dates chart for family preferences, which has become more embarrassing month by month.

In light of the restocking of consular staff and hopefully the immigrant visa sections, the Department of State should feel it appropriate sometime in this fiscal year to move the worldwide family preference dates in a meaningful manner.

As published in the Immigration Daily on August 16, 2022

We are pleased to report that in an unpublished August 1, 2022, decision, the BIA affirmed on certification the favorable decision that we received from the immigration court in one of our cases terminating proceedings against a permanent resident with a Virginia burglarious tools possession conviction. The issue was whether our client had to show that someone was actually prosecuted under the facially overbroad Virginia statute for the type of conduct which was not an immigration crime under the federal definition.

Following the immigration judge’s initial decision not to terminate on the basis that we had not shown that someone could actually be prosecuted under the statute for a non-immigration crime, we again moved to terminate on the basis of changed law in New York that such a showing was not required. Matthews v. Barr, 927 F3d 606 (2d Cir. 2019). The IJ agreed and terminated proceedings, but certified her decision to the Board.

The Board concluded that “the respondent was not required to make the showing, as the statute was facially overbroad and this case is under the jurisdiction of the United States Court of Appeals for the Second Circuit.” It further said that “The Second Circuit has interpreted the realistic probability test as being inapplicable if a state statute is facially overbroad” and “as the Immigration Judge correctly recognized, the Second Circuit has extended its case law to depart from the Board’s requirement of prosecution to satisfy the realistic probability test.”

Although unpublished (not a precedent decision), the decision is important in understanding the Second Circuit (which has jurisdiction over cases in New York, Connecticut and Vermont) interpretation of law on this point and the Board’s acceptance of the Second Circuit’s stance in states under the jurisdiction of the Circuit Court.

As published in the Immigration Daily on July 18, 2022

Confusion now appears to be the watchword in the area of prosecutorial discretion. The focus is upon DHS Secretary Alejandro Mayorkas’ prioritization memorandum of September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law, which sought to change immigration enforcement priorities from going after all undocumented immigrants to those who were threats to national security, public safety, and border security (those entering illegally on or after November 1, 2020). The guidelines were then followed by the Kerry Doyle memorandum on prosecutorial discretion on April 3, 2022, an attempt by DHS to significantly reduce the backlog of immigration court cases by empowering ICE chief counsels and their trial attorneys with the authority to dismiss or administratively close many cases of unlawful immigrants not barred by criminal acts, national, border, or public security questions, or certain types of immigration fraud.

Currently, there are conflicting decisions in the Fifth (Louisiana) and Sixth (Ohio) Courts of Appeals over the authority of the Biden Administration to prioritize classes of individuals for enforcement. In the Fifth Circuit, the court upheld a vacatur by the district court enjoining use of the earlier DHS Secretary Alejandro Mayorkas memorandum upon which the Doyle memo arguably rests. Texas v. US, No. 22-40367 (5^th Cir. 7/6/22). The Sixth Circuit had just the day before upheld the Administration’s ability to prioritize in State of Arizona v. Biden, No. 22-3272 (6^th Cir. 7/5/22). The Administration is now moving before the Supreme Court on an emergency application to stay the vacatur citing the Sixth Circuit’s decision.

Whether the Court will agree with the Government is up in the air, but it would appear that there are at least two factors in favor of lifting the vacatur – the Court has spoken unfavorably on the use of wide-ranging injunctions by a district court as recently as June in Garland v. Aleman-Gonzalez, 20-322 (S.Ct. 6/13/22) (which the Fifth Circuit dubiously distinguished saying that the district court judge here issued a vacatur which only reestablished the status quo), and recently gave the Administration a victory on the use of discretion in the enforcement of immigration laws at the border by striking down the Trump implemented Migrant Protection Protocols (MPP) which forced migrants to remain in Mexico during the time that their asylum applications were being decided. Biden v. Texas,  No. 21-954 (S.Ct.6/30/22).

In the meantime, the American Immigration Lawyers Association (AILA) is recommending that requests for prosecutorial discretion refrain from citing or relying on either Mayorkas or Doyle memo in any way as long as the vacatur is in effect. The ICE Office of the Principal Legal Advisor (OPLA) has noted the vacatur on its website and posted a notice that “Accordingly, until further notice, ICE will not apply or rely upon the Mayorkas Memorandum in any manner.”

As published in the Immigration Daily on April 14, 2022

The H-1B lottery selection system has proven to be a time and cost saver for employers trying to hire H-1B cap workers during a fiscal year, but it has room for significant improvement. On the numbers, in FY2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations in its first round of selections in March. The 87,500 was projected to be sufficient to meet the H-1B numerical allocations. Then, on July 29, 2021, USCIS announced a second selection of 27,717 resulting in a total of 115,217 selected registrants. This suggests that of the 87,500 initially selected, employers did not submit petitions or the petitions had irretrievable problems for 27,717 of the selected. It is difficult to imagine a vast quantity of defective petitions, so the bulk of the number would have been non-submitted petitions. This represents a rate of 31.7% of all selected registrants. Then on November 19, 2021, USCIS conducted a selection of 16,753 registrants, suggesting that 60.4% of registrants selected in the second round did not respond or petitions had irretrievable problems. These percentages might not factor every consideration that USCIS has taken or will take in conducting further lotteries, but are nonetheless illustrative of the non-response/problematic petition trends in the H-1B selection process.

While the current selection system makes much more sense than the past one of instructing petitioners to file full petitions for their prospective beneficiaries prior to selection, there are some frustrating flaws to the new system. Since it is much cheaper and less time-consuming to enter a potential H-1B employee into the lottery than submitting a full petition on his/her behalf, it stands to reason that there are much higher numbers of potential H-1B registrants to select from under the new system. In FY2022, USCIS received 308,613 registrants, as opposed to the 201,011 petitions to select from in FY2020—the year before USCIS switched to the H-1B lottery registration system—representing a 53.5% increase in the selection pool due in large part to what the author believes is the new system. After selections are made, non-response/problematic case rates are understandably high due to the relatively low level of investment employers made in registering their potential H-1Bs—all they needed to do was enter basic information into an online form and pay $10 per potential worker. Those who are not selected in the initial lottery must wait until a potential second or third lottery (July and November in FY2022). In FY2022, 72% of registrants were not selected in the initial lottery. Therefore, while approximately 31.7% of the initially selected registrants did not file or filed problematic petitions, the 72% that were not selected had to weigh their options as they would not find out if there would be a later round of selections until such happened in July. Many of the 72% were not in the fortunate situation where they could wait to be selected as some had expiring statuses and were compelled to take other legal measures to stay lawful, become illegal, or go abroad. A non-selection in the first round of H-1B lotteries often also has compelled employers to change their minds about sponsoring a beneficiary if he/she was selected in a future round, especially if expiring statuses or visas prevent H-1B candidates from working with their employers until the future selections are made. As such, by the 2^nd selection round in July 2022, many registrants had already moved on, as evidenced by the approximate 60.4% non-response/problematic H-1B rate. This lack of response compelled USCIS to conduct a third lottery in November 2021 for 16,753 registrants—for a process that should in theory have allowed for adjudications of all H-1B cap workers for work beginning on October 1 of the same year.

Clearly, at the heart of the problem are the following: (1) the barrier for entry is too low for employers such that the bulk of approximately 31.7% of those selected choose not to file H-1B petitions; (2) registrants not selected in the first lottery round do not know whether they will be selected in a later round (or if there will be another round); (3) plans very often change for those who are not selected in the first round, especially if they would have to wait until July or later to see if they are later selected—a selection in July or November is not equal to a selection in March. While DHS notes that there may be monetary fines and criminal penalties under 18 USC 1001(a)(3) for employers who engage in a pattern and practice of submitting registrations for which they do not file petitions, the numbers show these penalties do not work as an effective deterrent for registering and failing to file.

Is there a solution? The author believes that fortunately, the H-1B lottery system can be significantly improved by implementing one or more of the following steps:

1. Select more registrants on the initial lottery. In FY2022, USCIS selected 87,500 in the initial H-1B lottery. Even if all 87,500 properly filed H-1B petitions, it is unlikely that USCIS would have allocated the mandated 85,000 cap H-1B visas based upon that selection alone. Even with the post-Trump era H-1B denial rate of 4%, the expected number of H-1B approvals would have been 84,000 assuming that all 87,500 successful registrants submitted petitions. Therefore, in order to avoid having to conduct a second or third lottery where interest by a large percentage of the pool has waned, USCIS should allow more room for error. It is inevitable that a significant percentage of those initially chosen will not submit petitions or will submit problematic petitions. Looking at the above statistics, a number incorporating the first plus second rounds (115,217) or somewhere in that range would likely be a good number of registrants to select in the first round. Did USCIS do something like this in March 2022? Hopefully, lessons were learned from last year.
   
   
2. Increase the H-1B registration fee. The $10 nominal rate is a big part of the problem. Employers submitting $10 per reservation simply do not have enough skin in the game and can decide not to file petitions without much consequence unless DHS finds that they are engaging in a pattern and practice of submitting fraudulent registrations. A payment of $100 per registration would be more appropriate and deter employers from submitting registrations unless they are serious about filing H-1B petitions. That is certainly cheaper than employers filing whole petitions before the advent of the registration system and would help with USCIS’ poor financial status. To soften the blow of the larger fee, USCIS can implement a system whereby it deducts the $100 from the I-129 filing fee for successful H-1B cap registrants, and/or returns a portion of the registration fee for unsuccessful registrants.
   
   
3. Implement an “opt out” button on the registrants’ myUSCIS portal. Petitioners should be given the choice to opt out of their registrations if they choose not to move forward. The infrastructure to implement a button appears to be already mostly in place in the myUSCIS portal. A button to opt out can be programmed onto the myUSCIS page for H-1B registrants so that they can opt out at any time. A perfect place to implement a “withdraw registration” button is under the “view notice” button on each row for selected beneficiaries. A “withdraw registration” button should bring the H-1B registrant to a page listing all ramifications of withdrawing a registration and confirming whether the petitioner really wants to withdraw. Upon implementing this button, USCIS should run selections at the end of each month to make up for any shortfall. This solution should not come at a significant cost to USCIS, as much of it can be automated, and it would help USCIS reach its H-1B quota earlier by providing more selections to those who are truly interested in petitioning earlier, and while they are still interested in filing H-1B petitions. Implementing this solution would also greatly benefit H-1B employers and prospective employees as truly interested H-1B petitioners would have greater likelihood of being able to file an H-1B petition, and employers and prospective H-1B employees would have more clarity earlier in H-1B season as to whether they have been selected or may be selected in a more amenable timeframe.

The implementation of the above recommendations should in the author’s opinion improve the H-1B registration system.

As published in the Immigration Daily on December 20, 2021

Senator Joe Manchin (D-WV) said yesterday on “Fox News Sunday” that he will not support The Build Back Better Act, the chief legislative thrust of the Democrats that requires all 50 Democratic senators to be on board to pass through the reconciliation process with only Democratic votes. This may signal the end or proved to be a temporary roadblock with Democrats having to further negotiate to pare down the bill with one of their own. If the legislation somehow obtains the 50 votes, the important immigration component will also require further work.

The Senate parliamentarian, Elizabeth McDonough, delivered another blow to the Democrats’ plan to add immigration relief to the Reconciliation Bill on December 16, 2021, by rejecting Plan C, the main component of which would consist of parole of up to 10 years (5 years per application) with accompanying employment and travel authorization for those who enter the US before 2011. Plan A had included a path to citizenship for essential workers, DACA and TPS recipients, and Plan B updated the Registry date under which persons in the US by a certain date could adjust status from its present eligibility date of January 1, 1972 to January 1, 2010. The parliamentarian’s guidance was as follows:

The proposed parole policy is not much different in its effect than the previous proposals we have considered. The proposal, which would increase the deficit by $131 billion over 10 years, creates a class of eligible people (those who have been in the country for 10 years or more) who will qualify for a grant of parole in place status. This new class would make eligible for parole 6.5 million people – nearly the same number of people as the previous two plans. CBO estimates that 3 million people would adjust to LPR status – 2 million of whom would be otherwise ineligible under -current law. In order to effectuate the policy, the parole proposal changes the contours of the current parole in place program, making it a mandatory award of status for qualifying applicants rather than the current discretionary use of the Secretary’s authority and assessment, which the USCIS website states that the Secretary grants “only sparingly.” The grant of parole will be accompanied by the mandatory issuances of work authorization, travel documents, a deeming of qualification for REAL ID and automatic renewal of PIP. These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact and would subject to the proposal to a 313(b)(1)(D) point of order.

Where do the Democrats go from here? A realistic assessment by the negotiators vis-à-vis the parliamentarian would likely be the first step – is there a chance for Plan D? Would Ms. McDonough be more amenable to Plan C if it was not as extensive and only included a plan of parole with work authorization and travel documents and left out a deeming of qualifications for Real ID and automatic renewal of PIP (Parole in Place)? Would it be possible or even acceptable for Democrats to offer a plan for parole which was not equivalent to PIP to allow adjustment of status? Even now, DHS paroles individuals into the United States for many reasons and contests applications for adjustment of status on grounds that the parole status given did not entitle the holder to adjustment of status. If a realistic assessment is that the parliamentarian will likely not agree to any scenario which includes some form of relief to millions, then the Democrats seemingly have two choices – give up or override Ms. McDonough’s guidance on the ground that it is only advice. Giving up will exact a tremendous cost in terms of not only midterm election votes, and also place the reconciliation package in further jeopardy with some legislators signaling that they will not support the legislation without the immigration component. Overriding the parliamentarian on the other hand brings the twin risks that the Democrats will not have the votes as moderates balk and that success in doing so would set a precedent in which either party in power could simply go through the reconciliation process to achieve its goals disregarding the parliamentarian’s guidance.

If the rest of the reconciliation package can be worked out, and it comes to the choice of overriding the parliamentarian or not, we favor the override as the future of US immigration quite literally hangs in the balance and without some form of immigration relief now, it will be likely many years before the opportunity arises again. (The latest polls indicate that the Republicans are poised to make significant midterm election gains.) The Democrats can only do so if they can band together as one since loss of one member in the Senate and more than a few in the House would spell doom for the effort. If they can achieve unanimity, they would not be specifically confined to Plan C, the most limited plan, but should likely still consider it heavily as there will undoubtedly be legal challenges and the plan that hews closest to being less a substantial change in policy and having a large budgetary impact would be the most defensible.

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.

2. 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!

3. 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.

4. 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).

5. 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!

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.

 

2. 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.

 

3. 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.

 

4. 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.

 

5. 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.”

 

 

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.

3. $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.

4. 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.

5. 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.

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.

2. 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.

3. 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!

4. 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.

5. 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.

 

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.