Category: Articles

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

As published in the Immigration Daily on May 1, 2023

USCIS announced the results of the FY-2024 H-1B initial registration period results on April 28, 2023, and they revealed a lot as to why there were so many disappointments this March. What a broken system! USCIS received 780,884 H-1B registrations of which over half were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. 110,791 selections were made, less than last year’s 127,600 because of anticipated higher H-1B1 use (which is set off against the H-1B numbers) and a higher anticipated petition filing rate by selected registrants. So the selection rate was 14.19% overall and if taking into account only the 758,994 eligible registrations (those that were not disqualified, deleted, or had payment problems), 14.6%.

It is apparent that there is much fraud in the selection process with individuals and companies putting up multiple applications. Under the law, H-1B registration for an individual is generally only one (no multiple applications by the same organization) and should only be made by an organization with a bona fide need for the individual. The exception is where another organization has its own bona fide need for the individual. The staggering number of beneficiaries with multiple eligible registrations, 408,891, belies this premise. It is clear that many individuals and organizations are colluding in the multiple applications and effectively squeezing out bona fide applicants.

What is the solution – we propose that it is to go “Back to the Future” and once again have organizations file full petitions instead of merely paying nominal amounts of money (currently $10 per registration) for the privilege of filing the specialized occupation petitions. Individuals and their organizations have no “skin in the game” to not try to game the system given the low threshold to play and lack of enforcement against violators. My partner, Arthur Lee’s article two years ago, “Recommendations to Improve H-1B Lottery System”, Immigration Daily 4/14/22, pointed out the astonishing rise of 53.5% in the number of H-1B registrants in FY 2022, 308,613, as opposed to the 201,011 H-1B petition registrations in FY 2020, the year before USCIS switched to the lottery registration system, and advocated a rise in the registration fee from $10 to $100 as a partial solution. USCIS has now proposed a fee increase to $215. However, this writer does not believe that even such a large fee increase will have any effect as the staggering numbers here indicate that many organizations and individuals will simply consider the amount a cost of doing business, and it is well known that USCIS fee increases do not discourage applications for immigration benefits. A prime example is USCIS’ premium processing fee which has risen from program inception of $1000 to today’s $2500 (for most cases) and only seen highly increased usage of the service. The real deterrent to this type of fraud is to have interested organizations put in full petitions with documented need for the individuals. One of the reasons given by USCIS for implementing this failed registration system was the voluminous number of papers that would have to be returned for each unselected petition – however, the amount of paperwork is now halved as the agency no longer requires duplicate copies of H-1B petitions.

From FY 2018- 2020 just prior to the implementation of the registration system in FY-2021, the number of received petitions in the three years hovered in the consistent range of 190,000 – 200,000. With the registration system in place in FY 2021, registrations zoomed up to 274,237, the next year 308,613, the next 483,927, and this March 780,884. At this rate without change, the number will exceed 1 million by next year because of fraud without regard to the economic conditions of this country. Many H-1B pundits had thought that the numbers would drop this year because of problems in the tech sector resulting in tens of thousands of layoffs, but were sadly mistaken.

So it would seem that the only sensible solution is to go “Back to the Future”. In its announcement of the overall numbers on April 28, USCIS acknowledged in a paragraph, “Measures to Combat Fraud in the Registration Process”, that the large number of multiple eligible registrations raised serious concerns of some gaining unfair advantage, but only reiterated the penalties which many have already ignored and will likely keep ignoring until there is some real “skin in the game”.

As published in the Immigration Daily on April 21, 2023

The May 2023 visa bulletin generally had good news for family-based cases (FB) and bad news for employment based cases (EB). A quick summary of relevant developments of final action dates and dates for filing charts revealed the following:

FB final action dates: Good news that F-3 is generally (“generally” means with exception and the author would rather use it than “rest of the world” to describe the movement in categories except where particular countries are mentioned) moving up three weeks to 12/8/08 and F-4 three weeks to 4/8/07. F-2A remains backed up at 9/8/20. FB dates for filing: F-1 moves four months and three weeks to 1/1/17, F-3 three months to 2/8/10, and F-4 1 ½ months to 2/1/08. EB final action dates: Bad news that EB-2 worldwide drops back four months to 2/15/22 and EB-3 from current to 6/1/22. Good news for China is that EB-3 moves six months to 4/1/19, EB-3W 6 months to 4/15/15, and EB-5 2 months to 9/8/15. EB dates for filing: EB-3 worldwide goes from current to 5/1/23, but China benefits moving up four months to 6/1/19.

It appears that demand for US immigration through the employment categories is increasing in many countries of the world prompting a series of warnings by the Department of State in the May bulletin:

• China and India EB-1 are already at 2/1/22 final action dates and 6/1/22 dates for filing, and Visa Office says that the category for the two countries will “most likely” retrogress in final action dates in coming months because of increased worldwide demand. [This affects both filing and approving of cases as USCIS is only accepting the final action dates chart lately].
• Further retrogression in the EB-2 category for the rest of the world was necessary to keep number use within the FY-2023 annual limit and the situation will be continually monitored with any necessary adjustments to be made accordingly.
• India is facing further retrogression in EB-2 and EB-5 final action dates as early as next month to keep visa issuances within annual per country limits – that every effort will be made in October to return the final action dates to at least the final action dates announced for April.
• Retrogression in EB-3 worldwide was necessary to hold number use within the limits with the same prognosis that the situation will be continually monitored and any necessary adjustments made accordingly.
• EB-3W will likely retrogress worldwide in coming months.

There are of course only a finite number of immigrant visa numbers available for the preference categories annually – 226,000 for FB and 140,000 for EB cases. The forward movement of the FB categories which have been held static by the Department of State for many months is welcome to the many who have been waiting to reunite with their loved ones, but is unwelcome to those in the EB categories who have been helped in recent years by the crossover in unused FB numbers which can be used by them. The number of available visa numbers has unfortunately become a zero-sum game between FB and EB categories.

Only one fair and equitable solution is available, and that is increasing the number of visa numbers available for both FB and EB categories (FB because of the unconscionable number of years that most intending immigrants must wait to enter the US and EB because they fill areas of need in the country). Unfortunately, that is a pipe dream given the present lack of cooperation between political parties and concerns over the surge of migration at the Southwest border.

So we appear to be headed into a situation wherein FB cases will begin to be processed faster as US consulate posts bounce back to fuller capacity to set up interviews for cases, and EB cases will generally take a longer period of time to complete.

As published in the Immigration Daily on March 21, 2023

 Transit Policy at Border A Head Spinner.

In a bind at the Southwest border because of exploding numbers of migrants, the Biden Administration put forth a two-year parole program for 30,000 per month for the four countries of Venezuela, Nicaragua, Haiti, and Cuba in January 2023, which reduced the number of migrant crossings by 97% in that month. In February, the Administration announced its plan to end the embattled pandemic related bar of Title 42 on May 11, 2023, under which the government has been expelling great numbers of migrants without allowing them the opportunity to apply for asylum. Based upon the Administration’s plan, the Supreme Court de-scheduled oral arguments in February in a suit challenging the use of Title 42.

In its place, the Administration published for comment a temporary transit bar rule effective on May 11, 2023, the ending date of Title 42, to continue discouraging migrants from illegally crossing the US Southwest border. The carrot continues to be the two-year parole program for proper entries, and the stick the inability in most cases to apply for asylum if crossing the border unlawfully unless the migrant made an asylum application in a country that he or she transited before arriving at the US border. Specifically, this proposed rule will establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a country other than their country of citizenship, nationality, or, if stateless, last habitual residence, unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; or presented themselves at a port of entry at a pre-scheduled time or demonstrated that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application.

This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the noncitizen or a member of the noncitizen’s family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of “victim of a severe form of trafficking in persons”. The presumption also would be rebutted in other exceptionally compelling circumstances, as adjudicators may determine. Unaccompanied children would be excepted from this presumption.

The rebuttable presumption would be a “condition” on asylum eligibility that would apply in affirmative and defensive asylum application merits adjudications, as well as during credible fear screenings. Individuals subject to the rebuttable presumption would remain eligible for withholding of removal and protection under the Convention Against Torture (“CAT”).

Why is this a head spinner?

The first is opposition to the carrot. While 360,000 annually in a two-year parole program is not ungenerous, it should be remembered that Poland is hosting over 2 million Ukrainians and Colombia 2.5 million Venezuelans. Yet without any other plan, 20 states filed suit on January 24, 2023, saying that the expanded use of parole authority is unlawful.

Further head spinning is the direct contrast between the transit ban here and the one imposed under the US-Canada Safe Third Country Agreement in which arrival at a formal crossing point bars the migrant from making a claim for asylum in either country, and the migrant must in effect sneak into either country from the other to be eligible for asylum. Exceptions exist. An article in the New York Times on February 9, “Texas sent busloads of migrants to New York. Now the city is paying for tickets to Canada”, outlined the City’s handing out free tickets at the Port Authority bus terminal to Plattsburgh upstate near the border, normally a $75 bus ride of about seven hours. Once there, vans and cars charging anywhere from $50 per person to even $150 take them to Roxham Road, an informal crossing into Québec, where Canadian police officers immediately place them under arrest, direct them to a barn, and process them to be sent to shelters. The attraction of Canada is that once people make a refugee claim at the border, they immediately receive health coverage, social assistance and work permits within 3 to 4 months.

Where do we go from here? No one knows whether the carrot and stick approach will continue to work, or whether lawsuits against the transit ban or parole program will upend the plan.

It should be noted that the Biden Administration is also contemplating the revival of family detention of migrant families crossing illegally into the US to help prevent the anticipated surge beginning May 11. The policy as first put in place by the Trump administration caused family separations and soul-searching in the nation. Officials said that contrary to the Trump implementation, the Biden Administration would adhere to the terms of the Flores court settlement (Flores v. Reno, CV 85-4544 (USDC CD CA 1/28/97)) which only allows children to be detained for 20 days. Stay tuned.

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

 

As published in the Immigration Daily on March 7, 2023

Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap. And two others predicted up to 500,000 and between 550,000-600,000 requests for H-1B registration would be made.

The total number is given in April, and we will see how the predictions fared.

CSPA Vis-À-Vis USCIS Adjustment Chart.

A huge development in The Child Status Protection Act (CSPA) is USCIS’s re-interpretation of the date on which a child’s priority date is reached for freezing age before turning 21 and he/she then no longer being able to immigrate as a child. USCIS announced a policy on February 14, 2023 that it would henceforth use the “dates for filing” chart of the monthly visa bulletin to finally fix the child’s age. Prior policy had been to use the “final action date” to determine whether the child was under the age of 21. In the past, a child would be able to file an I-485 under “dates for filing”, but if he/she turned 21 before the “final action date” opened, the case would be denied. Although there is no adjustment of status in cases being consular processed, the same rule should now apply for cases being interviewed overseas as the Attorney General (including DHS and its USCIS component) and not the Secretary of State determines the law in the field of immigration.

In determining when an age is “frozen”, the applicant must read two charts, the Department of State visa bulletin’s “dates for filing” one, and the USCIS monthly adjustment chart designating which of the Department’s two charts will be used for accepting adjustment of status applications. The USCIS Policy Manual instructs that, “The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.… Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.”

This policy change applies to pending applications, with the guidance also saying that noncitizens can file a motion to reopen a previously denied adjustment of status application with USCIS by using form I-290B; that noncitizens must generally file motions within 30 days of the decision; and for a motion filed more than 30 days, USCIS may in its discretion excuse the untimely filing if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

On the USCIS CSPA page, there seems to be more room for motions to reopen where an applicant is not yet 21 using the new guidance as it says, “If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen….”

We will look with great interest to see how this all works out going forward.

 

As published in the Immigration Daily on January 23, 2023

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

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

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

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

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

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

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

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

As published in the Immigration Daily on December 6, 2022

At a webinar on O & P petitions on August 3, 2022, the question was asked of when USCIS anticipated that we could file without a duplicate I-129 petition as several years ago, the Kentucky Consular Center (KCC) and USCIS had said that duplicates would no longer be required as they were moving towards a digitization process. The USCIS webinar response was that it was no longer necessary to provide a duplicate. However, without further assurance from the agency, many practitioners were understandably reluctant to abandon sending in duplicate copies.

On November 16, 2022, USCIS sent out its recommendations on how it wants paper (not online) petitions and applications to be submitted to it in order to improve scanning efficiency. We have some reservations concerning several of the points in the guidance and believe that further discussion may be warranted and have added our italicized comments at the end of the particular bulleted points on which we have questions.

USCIS instructs that petitioners and applicants should not:

• Hole punch, staple, paper clip, binder clip, or otherwise attach documents to one another. For large applications and petitions, the admonition can be complied with as they can be bound with large rubber bands – but such cannot be done with smaller applications and petitions and no one wants to chance some papers slipping out or being thrown away in the mailroom, in transit from the mailroom, or while on an officer’s desk.
• Include photos or documents smaller than 4×6 inches for evidentiary purposes. Provide photocopies of these items instead. The only exception is when we request a passport photo with the filing. Are passport photos considered documents not to be stapled or paper clipped? If so, it should be noted that it is difficult to secure loose passport photos in a way that assures that they will not be lost. The practice of securing the photos directly onto the applications assures that there is much less chance of photos going missing. Perhaps the point requires some clarification.
• Include anything that contains electronic chips and batteries (such as musical greeting cards) or any non-paper materials such as cassette tapes, CD-ROMs, DVDs, toys, action figures, or thumb drives. We will not accept these types of materials. However, we will accept photographs or photocopies of these items. Photographs of musical greeting cards, toys, and action figures can be photographed and perhaps understood, but CD-ROM and DVD covers are generally only good for musical acts or movies or the like – otherwise, how can you convey what is meant to be represented accept by photocopies of the contents – a prodigious endeavor. Ditto for most thumb drives.
• Submit forms or evidence documents bound with a binding or spiral wire/plastic.
• Submit evidence using photo albums, scrapbooks, binders, or greeting cards.
• Fold documents.
• Place sticky notes on documents. While we agree with this in general, we believe that placing sticky notes on top of the first page to identify the contents, but not on the documents themselves is helpful to USCIS in identifying what type of case is being submitted.
• Use insertable tab dividers. We believe that most practitioners have already abandoned the practice of using insertable tab dividers, and that the use of colored paper to divide parts of the petitions and applications mainly serves the same function and helps officers adjudicating them in differentiating the separate parts.
• Print forms on colored paper. The G-28 authorization of representation for attorneys and other representatives is the only USCIS form in a different color – blue – and printing it strictly on white paper increases the chances that the form will be overlooked by officers going through applications and petitions. Does this mean that the Service no longer wishes to even have the edges of a white G-28 blued to differentiate it from all the other white pages? This could use some clarification.
• Submit more than one copy of the same document or evidence unless required by the form instructions or regulations. If you are required to submit a copy of a complete prior application, petition, or request, clearly mark it as a “COPY” at the top of each page to ensure it is processed as intended. This is one development that can be cheered if only for the number of trees saved!
• Send original documents such as birth certificates, marriage certificates, driver’s licenses, passports, naturalization certificates, except when:
• Required by the form instructions for the application, petition, or request you are filing; or
• We specifically issue a request for you to submit an original document.

USCIS adds that avoiding these activities will improve its efficiency as it processes application, petition, or requests.

After digesting these recommendations, we looked over the form I-129 instructions and found to our chagrin that an alert had been posted for some time that no duplicate I-129’s have been required since August 11, 2022. One would think that USCIS would have publicized that change of policy loudly rather than just sticking it in the form instructions.

Looking for more surprises, we went through three popular forms, the I-131 Application for Travel Document, I-485 Application to Register Permanent Residence or Adjust Status, and I-765 Application for Employment Authorization, to see whether the photograph specifications had been changed. Both I-765 and I-485 instructions were the same that applicants must submit two recent identical color passport style photographs with white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched; that they must be 2 x 2”, in color with full face, frontal view on a white to off-white background with head height measuring 1 inch to 1 3/8 inches from the top of the hair to the bottom of the chin and eye height between 1 1/8 to 1 3/8 inches from the bottom of the photo. However, the I-131 gives applicants the alternative of submitting a digital photo which must be produced from a high-resolution camera having at least 3.5 megapixels of resolution.

While some of the bulleted points reflect common sense and have already been adopted by most petitioners and applicants, USCIS should take a moment to consider other bulleted points and clarify or change some of its recommendations.

As published in the Immigration Daily on November 7, 2022

Form N-648 applicants requesting disability exemptions for the English requirement and/or civics requirement and/or oath of allegiance should now see a big change in the general attitude of USCIS officers towards granting exceptions to the requirements. USCIS acknowledged in a form revision and policy update on October 19, 2022, that the changes were guided by public comments and feedback with USCIS Director Ur M. Jaddou saying, “This is a wonderful example of how USCIS is listening to the public it serves in order to better address their needs while fulfilling our responsibilities as an agency.”  The form itself has been shortened and simplified, and new telehealth guidelines further remove barriers for applicants and medical professionals. The form changes were also in response to the Administration’s goal to remove barriers for underserved populations under Executive Order 13985, Advancing Racial and Equity and Support for Underserved Communities through the Federal Government.

Applicants for medical exemptions have experienced an entire host of critical responses from USCIS officers, and under the new policy guidelines, adjudicators are no longer supposed to:

• Attempt to determine the validity of the medical diagnosis or second-guess why the diagnosis precludes the applicant from complying with the English requirement, civics requirement or both requirements.
• Request to see an applicant’s medical or prescription records solely to question whether there was a proper basis for the medical professional’s diagnosis unless evidence exists that creates significant discrepancies that those records can help resolve. The officer may ask follow-up questions to resolve any outstanding issues.
• Require that an applicant undergo specific medical, clinical, or laboratory diagnostic techniques, tests or methods.
• Conclude that the applicant has failed to meet the burden of proof simply because the applicant did not previously disclose the alleged medical condition in other immigration related medical examinations or documents. It is appropriate, however, to consider this a factor when determining the sufficiency of the N-648. The officer should always examine the evidence of record and ask follow-up questions to resolve any outstanding issues.
• Refer an applicant to another medical professional solely because the applicant sought care from a professional who shares the same language, culture, ethnicity, or nationality.

Officers should now only do the following when adjudicating the request for exemption:

• Determine whether the form has been completed, certified, and signed by all appropriate parties.
• Ensure that the form relates to the applicant and that there are no significant discrepancies between the form and information contained in the applicant’s “A” file or record.
• Determine whether the form contains enough information to establish that the applicant is eligible for the exception by a preponderance of the evidence including ensuring that the medical professional’s explanation is both sufficiently detailed as well as specific to the applicant and to the applicant’s stated physical or developmental disability or mental impairment.

On telehealth, the new simpler form allows the medical examination to be conducted through telehealth examination with the medical professional adhering to the state telehealth laws and requirements. Medical professionals allowed to fill out and sign the form are medical doctors, doctors of osteopathy, and clinical psychologists.

And where the applicant is so disabled as to not be able to understand or communicate an understanding of the oath of allegiance, a legal guardian, surrogate, or eligible designated representative can complete the naturalization process for the applicant and USCIS can waive the oath of allegiance. USCIS recognizes by priority legal guardian or surrogate, and then in the following order US citizen spouse, US citizen parent, US citizen adult son or daughter, and US citizen adult brother or sister who is the primary custodial caregiver & takes responsibility for the applicant. A person acting on behalf of the applicant must provide proof of legal guardianship or documentation to establish the familial relationship. In addition, the person must provide documentation to establish that he or she has the primary custodial care and responsibility for the applicant (for example, income tax returns, Social Security Administration documents, and affidavits from other relatives). For family members, they must provide proof of US citizenship. If the family member is not a US citizen, USCIS explains why he or she is not qualified to act as a designated representative and offers the applicant an opportunity to bring another person who may qualify.

The new form and guidelines are very encouraging and will hopefully not encounter resistance from naturalization examiners who have been overly skeptical of exemption claims in the past.

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.