Category: News

As published in the Immigration Daily on October 24, 2023

1. EAD’s Increased to Five Years for Many Categories – Question.

USCIS on 9/27/23 announced that it is increasing the length of time for EAD’s in certain categories to five years for initial and renewal EAD’s. These include applicants for asylum or withholding, adjustment under section 245, and suspension or cancellation of removal cases. Also those admitted as refugees, paroled as refugees, and granted asylum or withholding. It clarified that certain Afghan and Ukrainian parolees are employment authorized incident to parole.

Question: As is known, an EAD is only an ancillary application dependent upon the fate of the principal benefit being requested. How does an employer in good faith who does not use E-Verify know that the job applicant is no longer authorized to work when the principal immigration application has been denied since the job applicant will still be presenting an immigration document that is still facially valid for employment as it is one of the documents on the I-9 “A” list that establishes both identity and employment authorization? While recognizing that USCIS has better things to do with its time than constantly extending employment authorization, perhaps a lesser amount of time, three instead of five years, would be more appropriate.

2. Keeping Straight Ukrainian and Venezuelan TPS Timetables

With extensions and re-designations to the TPS programs of Ukrainians and Venezuelans, we thought to offer a short timetable of the benefits for each nationality to make them clearer as to deadlines to apply, date to be in the US for eligibility, and time limits of stay:

Ukrainians:

• First registration was from 4/19/22-10/20/23.
• Extension goes from 10/20/23-4/19/25.
• Re-registration for extension is from 8/21/23-10/20/23.
• Redesignation for those continuously resident in US since 8/16/23 and physically resident in US on 10/20/23 and thereafter.
• Redesignation also goes from 10/20/23-4/19/25.
• Registration period for redesignated goes from 8/21/23-4/19/25.
• Expected eligible Ukrainians for redesignation are 166,700 in addition to the 26,000 eligible for extension under the initial program.

Venezuelans:

• First registration and extensions were until 9/9/22 and 3/10/24.
• New TPS extension announced by DHS on 9/20/23 until 9/10/25.
• Reregistration for extension goes from 1/10/24-3/10/24.
• Redesignation for those continuously residing in the US since 7/31/23 and continuously physically present in the US since 10/3/23.
• Redesignation time goes from 10/8/23-4/2/25.
• Registration date for initial registration goes from 10/3/23-4/2/25.
• Expected eligible Venezuelans for redesignation or 472,000 in addition to the 243,000 eligible for extension under the initial program.

More complete information can be found for Ukrainians in the Federal Register / Vol. 88, No. 160 / Monday, August 21, 2023, and for Venezuelans in the Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023.

3. USCIS Adjudicating Dependent Nonimmigrant Applications Almost Simultaneously with Principal Petitions.

In case you missed it, USCIS posted a notice on its I-129 page that for H-4 and L-2 dependents who are applying in the same package with their principal’s I-129 petition, it will adjudicate the dependent I-539 application(s) directly after approving the I-129 petition. This includes H-4 and L-2 work authorization requests. The news is welcome to all as USCIS in the past adjudicated the dependent applications separately and could take weeks or months to make a decision, leaving a family in suspense even though knowing that the dependent application(s) would in all likelihood be approved. Hardship could arise in the situation where the dependent spouse was waiting for approval of employment authorization to take up or continue employment. The new policy may encourage the use of premium processing for the entire case in such situations. We remind dependents that no biometrics fee is required for the I-539 and that a mistaken combination payment for I-539 and biometrics will result in rejection of the application and upon resubmission not considered to be part of the above policy unless the I-129 was simultaneously rejected and the entire package resubmitted at the same time.

The 2023 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 82 attorneys chosen in the area of immigration law.

This is the 12^th time that Alan Lee has been selected, having previously been honored in 2011, 2013-2022.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2023“

As published in the Immigration Daily on June 21, 2023

1. To photo or not for applications like N-400 filings not requiring them?

Do you submit photographs to USCIS for applications that do not require them, such as N-400 naturalization applications (only those residing overseas are asked to submit two passport photos with the application)? The answer is not as easy as it seems, as there are pros and cons. Why submit photos which are not asked for? For a lawyer, it may make him/her look less competent in the eyes of a client who reads the form instructions if he/she asks for photographs? It may also slow down processing time in the attorney’s office, as the rest of the materials can be scanned and emailed over. And what of N-400 situations previously when the agency required photos, and then the officer requested another set at the time of interview? In that case, a client would be taking two sets of photos. We recently had a case in which the applicant brought photos to the naturalization interview (not on submission); they were not requested; and yet requested at the swearing-in ceremony at which time the applicant had left the photos at home! USCIS is generally re-using as many of the old biometrics as it can in the interest of reducing the time that its personnel have to spend on biometrics appointments. It is a good stratagem as fingerprints do not change, and has been universally applauded. (It should be remarked that persons not encountered previously by USCIS still have to attend biometrics appointments such as those entering on immigrant visas unless they were subsequently fingerprinted and photographed by USCIS). For waived biometrics appointments, the agency has also been using photographs that it has in the file. In a case last week, the interviewing officer requested photos saying that the ones in the system were too old. Luckily the client had brought photos and did not have to go outside the building, take photos, and then return. USCIS special instructions to form N-400 simply say that based on processing needs, an applicant may need to submit photographs after filing the N-400, and if so, USCIS will send a request along with instructions on how to submit the physical photographs. So do you submit unasked for photos for the filing, or do you carry photos to the interview, or do you not worry about photos at all since they are not requested? We have had other interviews in which the client offered photos which were rejected by the officer as not needed.

2. Where are all the I-601A cases going?

We have had a number of I-601A provisional unlawful presence waiver cases transferred lately, and wonder whether they are headed to the location provided in the transfer notice, the Potomac Service Center, or if they will be headed ultimately to the new virtual remote HART (Humanitarian, Adjustments, Removing Conditions, and Travel Documents) Service Center that is opening at this time in order to speed up processing as a result of pending litigation. Of special interest to us is that the remote center will concentrate on I-601A’s as well as “bona fide determinations” for U visa applicants (I-918), VAWA petitions (I-360), and asylum reunification petitions (I-730). In an article written by a senior fellow at the American Immigration Council, Dara Lind, “New USCIS Center Is Good News For Some Of Its Worst Backlog Victims”, Immigration Daily, 4/19/23, she said that the Council documented in a recent class-action lawsuit that processing times for I-601A grew sixfold from 2017 to 2022, and that of the two service centers handling the waivers, it is taking three years at one center and 3 ½ in another one to decide 80% of the waivers. Attorneys in the lawsuit estimate that the class of people who have waivers pending for more than 12 months would include at least 70,000 people. In favor of the ultimate destination being HART, it otherwise makes little sense to transfer from the Nebraska Service Center to the Potomac Service Center since both have a current published processing time of 44 months for 80% of the cases.

3. New vetting center for specific affirmative asylum cases.

In the past, asymmetrical affirmative asylum cases have been filed at service centers and then later at local asylum offices. Now USCIS has created a new vetting center in Atlanta, Georgia, to have one clear address at which these atypical cases can be filed. They are the following cases with USCIS instructions:

• Loss of Derivative Status After Asylum Approval but Before Adjustment of Status (Nunc Pro Tunc):If you are currently a derivative asylee, but you are unable to adjust status to lawful permanent resident due to a loss of derivative relationship, then you may submit a new Form I-589 and request a grant of asylum nunc pro tunc. In your letter, please provide information about your previous Form I-589 and explain that you are now filing independently as a principal applicant.
• Loss of Derivative Status After Initial Filing but Before Final Decision:If you withdrew from a principal’s Form I-589 as a dependent, or if you lost derivative status by marriage, divorce, or death of the principal applicant, then you may submit a Form I-589 as a principal applicant. In your letter, please provide information about your previous Form I-589 and explain that you are now filing independently as a principal applicant.
• Simultaneous Filing as a Principal Applicant and a Derivative Applicant:If you are already listed as a derivative applicant on another pending Form I-589, you may file a Form I-589 as a principal applicant. Also, you and your spouse may file separate Forms I-589 at the same time as principal applicants and list each other as derivative applicants. In your letter, please provide information about any previous Form I-589 and explain that you are now filing independently as a principal applicant.
• Previously Issued a Final Action by USCIS on a Form I-589:If you previously filed Form I-589 with USCIS, you may be eligible to file a new Form I-589 with USCIS if you have not been placed into immigration court proceedings after USCIS denied or dismissed your Form I-589, including if we dismissed it after you withdrew your Form I-589.
• Previously in Immigration Court Proceedings: If you have reason to believe we have jurisdiction over your Form I-589 and you were previously in immigration court proceedings, then you may submit a Form I-589.
• The address of the vetting center is:

Mailing by U.S. Postal Service (USPS):

USCIS Asylum Vetting Center
P.O. Box 57100
Atlanta, GA 30308-0506

Mailing by FedEx, UPS or DHL:

DHS-USCIS Asylum Vetting Center
401 W. Peachtree St. NW, Suite 1000
Atlanta, GA 30308

As published in the Immigration Daily on June 14, 2023

1. July 2023 visa bulletin and USCIS chart acceptance quick summary.

The number of changes without counting diversity visa distribution is minimal in advances, and features a 3 ½ year retrogression to the India EB-3 final action date. A quick summary of family-based (FB) and employment based (EB) changes from June reveals the following: FB dates for filing – F-1 moved up nine months to 9/1/17 for all countries except Mexico and the Philippines; F-2A stays current; F-3 moves up three weeks to 3/1/10; and F-4 one month to 3/1/08. FB final action dates – only Mexico moved. EB filing dates – No movement at all. EB final action dates – EB-3 worldwide (except for China and India) moved back four months to 2/1/22 and India went backwards 3 years 6 ½ months to 1/1/09 in both EB-3 and EB-3W categories – ouch! A big warning was given in the notes that there is a strong likelihood that it will be necessary to retrogress the F-2A final action date next month, that the F-2B category final action dates will be continually monitored and that it may become necessary to retrogress the category to keep it within FY-2023 annual limitations. The July adjustment chart put out by USCIS is the same as in previous months – acceptance of dates for filing chart for FB and final action date chart for EB cases.

2. Watch out for distance learning.

During the pandemic, USCIS was operating under Covid flexibilities under which distance-learning had been allowed in excess of the regulations under 8 CFR 214.2(f)(6)(i)(G) which states:

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

In an ICE SEVP Broadcast Message on 5/11/23: “Termination of SEVP COVID-19 Flexibilities”, ICE said that because of the termination of the Covid public emergency on 5/11/23, the SEVP Covid-19 guidance terminated on that day. Active F and M nonimmigrant students are able to complete the 2022-23 academic year under Covid-19 flexibilities through the 2023 summer semester. But active F and M nonimmigrant students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits for the 2023-24 academic year. Initial or reentering students must enroll in programs complying with the regulatory limits for distance learning. This must give pause now to those students wishing to enroll in schools offering a tenuous connection to physical classroom instruction as USCIS may now be looking harder at these schools’ arrangements for instruction following the ending of the pandemic emergency.

3. DOS administrative processing time being shortened.

The Department of State has good news for everyone. It sent out a message on 5/19/23 and reiterated it in the June 8, 2023 advice, “Facilitating Travel and Safeguarding National Security”, that the Department is processing visas more efficiently than ever and is continuously reducing the time required for administrative processing; that it has recently adopted new technology and enhanced coordination to reduce the number of these applications requiring administrative processing on security grounds, while upholding strict national security protections. It adds that since October 2022, most cases that would have previously required additional administrative processing were resolved immediately without additional, time-consuming handling.

As published in the Immigration Daily on January 30, 2023

1. White House expands and renews Hong Kong deferred enforced departure program.

The Biden Administration announced in a White House memorandum on January 26, 2023, that it would not only renew, but also expand the Hong Kong deferred enforced departure (DED) program for old and initial applications for 24 months. The original grant of DED is to expire on February 5, 2023. Qualified applicants are those Hong Kong residents who have been in the country since 1/26/23 and have not voluntarily returned to Hong Kong or the PRC after 1/26/23. It confers both protection from deportation and employment authorization for those who apply for an EAD. Besides voluntary return to Hong Kong or the PRC, those not eligible are those who have not resided continuously in the US since the date of the memorandum; are inadmissible under security grounds which includes membership in the Communist Party or deportable under such; or have been convicted of any felony or two or more misdemeanors in the United States; or the person persecuted others; has been convicted of a particularly serious crime and constitutes a danger to the community of the United States; there are serious reasons for believing the alien committed a serious nonpolitical crime outside the US; there are reasonable grounds for regarding the alien is a danger to US security; terrorist activity; or when the person is firmly resettled in another country prior to coming to the United States; or is subject to extradition; or whose presence in the US is not in the interests of the United States or represents a danger to public safety; or whose presence in the country the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.

A Hong Kong “resident” has previously been defined for purposes of the program as an individual of any nationality, or without nationality, who has met the requirements for, and been granted, a Hong Kong special administrative region passport, a British national overseas passport, a British overseas citizenship passport, a Hong Kong permanent identity card, or a Hong Kong special administrative region (HK SAR) document of identity for visa purposes.

The Federal Register notice implementing the memorandum is expected momentarily.

2. USCIS sets schedule for H-1B cap registration program.

USCIS on January 27, 2023, set out the schedule for H-1B registration for cap cases for FY 2024 (10/1/23-9/30/24) which will run from noon EST 3/1/23 – 3/17/23 noon EST. Registrants can open new accounts on 2/21/23 at noon, but submission must be 3/1/23 or later. USCIS will notify account holders by 3/31/23. Last year, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. It is expected that the number of registrations will decrease this year as many technology firms, prime users of H-1B visas, are in the midst of laying off workers because of their overambitious expansion plans fueled by easy access to money (low interest rates) which are presently being stymied by the Federal Reserve’s hiking of those rates.

3. Final Covid-19 flexibility dates advanced to March 23, 2023.

In the wake of the pandemic, USCIS has given extra time for individuals and organizations to respond to requests for information from the agency since 2020. It announced in its latest extension on January 24, 2023, that the extension of 60 calendar days for notices for information in addition to the notice deadline date and 90 days from decision date to file appeals, motions, and requests for hearings would end with notices or decisions issued by March 23, 2023, inclusive barring changes presented by the pandemic. If so, that means requests and notices after that must be responded to by the stated response dates, and appeals, motions, and requests for hearing filed within 30 days of decision.

The additional 60 days applies to the following:

• Requests for Evidence;
• Continuations to Request Evidence (N-14);
• Notices of Intent to Deny;
• Notices of Intent to Revoke;
• Notices of Intent to Rescind;
• Notices of Intent to Terminate regional centers;
• Notices of Intent to Withdraw Temporary Protected Status; and
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

The 90 days from decision date applies to:

• Form I-290B, Notice of Appeal;
• Form I-290B, Motion;
• Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA)

Applicability of the 60 days is for requests or notices issued between March 1, 2020 – March 23, 2023 inclusive, and the 90 days for decisions made between November 1, 2021 – March 23, 2023 inclusive.

USCIS also added that the reproduced signature flexibility rule announced in March 2020 became a permanent policy on July 25, 2022.

4. USCIS announces new dates for expanded premium processing classes of cases.

USCIS on January 12, 2023, announced premium processing expansion for all initial and pending EB-13 (multinational executive and manager) and E-21 NIW (national interest waiver) petitions beginning 1/30/23. It is also planning to offer premium processing for F-1 students seeking OPT or STEM OPT extensions who have a pending I-765 application in March, and in April to those in the same classes who are filing an initial I-765. It is anticipating expanding premium processing for students and exchange visitors with pending I-539 applications in May and those in the same classes filing initial applications in June. This is the final phase of premium processing expansion which began with the first phase on June 1, 2022, accepting I-907 premium processing requests for certain cases received in early 2021.

5. Trump public charge rule finally killed by Supreme Court?

The Supreme Court on January 9, 2023, denied as improvidently granted a petition for certiorari in Texas v. Cook County, Illinois, 22-234, in which the red states presented two issues (1) Whether petitioner states were entitled to intervene in defense of the inadmissibility on public charge grounds rule when they sought to do so within days of the federal government’s rescindment of the rule by acquiescing in a district court’s nationwide vacatur; and (2) whether petitioners were entitled to either relief from the District Court’s judgment under Federal Rules of Civil Procedure 60 (b)(6) or equitable vacatur of the judgment. This was an attempt to resurrect an effort of 13 states led by Arizona in Arizona v. City and County of San Francisco to gain the right to intervene in a California lawsuit against the Trump rule in which the Biden administration decided not to defend it on appeal and in which the states wanted to intervene on behalf of the government to preserve the rule. In that case, the justices also dismissed as improvidently granted the certiorari petition. So is that the dagger to the Trump public charge concept which would have put the final coffin nail in the Statue of Liberty’s promise to “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”? Unfortunately, no, as the Texas Attorney General Ken Paxton brought suit again on January 5, 2023, in the US District Court, Southern District of Texas, Victoria division, State of Texas v. Alejandro Mayorkas, Civil Action No.6:23-CV-1, claiming that the Biden administration seeks to further its open borders policy by enacting a new agency rule effectively nullifying federal law excluding aliens likely to become public charges. Stay tuned.

The law firm of Alan Lee and Arthur Lee, Attorneys at Law, is happy to announce that Arthur Lee, partner at the law firm, and Ann Back, his long-time girlfriend and fiancée, married on November 11, 2022, at Leonard’s Palazzo in Great Neck, Long Island, New York, before 100+ guests. On the following day, another celebration was held for Alan Lee’s mother-in-law, Yuchu Wen, who turned the grand age of 101 at the East Ocean Palace in Forest Hills, New York.

 

As published in the Immigration Daily on October 6, 2022

1. Confusion in the immigration courts.

Does anyone know what is going on? There appears to be confusion again on appearances in court as David L Neal, Director of EOIR (Executive Office for Immigration Review), came out with a memo “Internet-based Hearings” on 8/11/22, that once again gives the power back to the IJ’s (Immigration Judges) on how they can conduct their hearings. Some of the points are:

• Whether the judge appears remotely or in court is up to the judge.
• Whether respondent and counsel appear in court or remotely also rests with the court, but the IJ should accommodate a respondent’s request to appear in court or remotely where appropriate and practicable.
• An IJ should accommodate a request for a witness to appear remotely where such a request is reasonable.
• A request for a remote or in-person appearance must be made in writing 15 days before the hearing unless waived by the IJ.
• If respondent and counsel are both appearing remotely, they may appear either together or from different locations. There is no requirement that respondent and counsel appear together from counsel’s office.

Now attorneys are running around again madly asking what is the procedure for each individual IJ. Previously, EOIR had taken a strong position in favor of Internet-based hearings by WebEx or telephone. In one recent incident, an attorney reported that a particular IJ likes open voice for master calendars even though her temp clerk says she also does WebEx and is in court if anyone shows up in person. Another attorney said that she appeared via WebEx for an individual hearing before the same judge; that the IJ logged in late and informed her that she was conducting only in-person merits hearings, but because it was not well-publicized, she would go forward on WebEx that time only.

To its credit, EOIR in the last week of September conducted webinars by region to go over the memorandum, but could not completely quell the doubts of attorneys that their clients could be found removable in absentia because attorney and client were not clear on an IJ’s mode of hearing preferences, or the communication equipment used or the link was faulty.

2. New public charge rule on responsibility of affiants giving I-864 support.

The Biden administration issued the final rule, “Public Charge Ground of Inadmissibility”, in the Federal Register on Volume 87, Number 174, 9/9/22, which while not overly commenting on affidavits of support, played down the enforceability of the affidavits while stating that affidavits of support are to be considered in the totality of circumstances. In doing so, it knocked down the idea that there should be something in the rule concerning enforcement of the affidavit of support obligations and basically agreed with commenters that since an affidavit of support is enforceable regardless of the sponsor’s actual intent, the rule should not require officers who are favorably inclined to the affidavit of support to consider the sponsor’s credibility or underlying motives in executing the affidavit; and it declined to require officers to consider whether the sponsor would actually carry out the legally binding obligations as part of the totality of the circumstances analysis.

It appears that the taking of means tested benefits other than Temporary Assistance to Needy Families (TANF) and Medicare for long-term institutionalization are not to be counted against the applicant (not be a ground of inadmissibility) and the credibility of an affidavit of support at time of interview will be considered in the totality of circumstances.

3. US-Canada taking separate Covid paths.

Unlike the US, Canada has abandoned Covid restrictions for visitors as of 10/1/22 so that unvaccinated visitors are now allowed into the country. Visitors no longer have to upload evidence of vaccination and other data into a government app called Arrive-Can. Canadian officials said the repeal was possible because public-health modeling indicated the country had passed peak infection fueled by the Covid-19 Omicron variants, countrywide vaccination rates, lower hospitalization rates, and availability of Covid-19 treatments and vaccine boosters targeting Omicron variants. The US still requires everyone who is not a permanent resident or US citizen to be vaccinated by a WHO approved vaccine upon entry, which means fewer visitors and less tourist dollars. President Biden declared his belief that the pandemic was over last month and might wish to take a similar step.

The 2022 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 77 attorneys chosen in the area of immigration law.

This is the eleventh time that Alan Lee has been selected, having previously been honored in 2011, 2013-2021.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2022“

As published in the Immigration Daily on August 23, 2022

1. USCIS pronounces finality to H-1B selections

USCIS has been giving case alerts for the past few days requesting H-1B petitioners and representatives to login to their H-1B registry accounts only to find that registry cases are now being marked “not selected”. To most practitioners, it appeared that there would not be a second selection for FY-2023. With the steady stream of non-selections, most petitioners/representatives had already seen the vast majority of their “submitted” cases move to “not selected”. Perhaps it was the sheer volume of candidates that caused the non-selection process to play out over a period of days. For FY-2023, USCIS received 483,927 H-1B registrations and selected 127,600 projected as needed to reach the fiscal year’s numerical allocations. That left 356,327 previously standing “submitted” registrations. USCIS ended the suspense this morning with an announcement that it had reached the fiscal year 2023 H-1B cap and had completed sending non-selection notifications to registrants’ online accounts. One would hope that USCIS in future years will make the announcement first so that registrants do not entertain false hopes of being selected.

2. Consular Practice.

It may be worth repeating that in the DOS/AILA (Department of State/American Immigration Lawyers Association) liaison committee meeting of 6/9/22, consul posts are the final arbiter of whether original signatures are required or not; there is a known issue with CEAC (Consular Electronic Application Center) requesting police certificates for some applicants who lived in another country for less than one year and if you are not required to submit a police certificate that CEAC is asking for, you should instead submit an explanatory comment (NVC (National Visa Center) follows the guidance in 9 FAM 504.4-4 (B) for collecting police certificates for countries in which individuals previously resided for a year); and to the complaint that, where a US citizen spouse is regularly residing overseas and an applicant is relying upon assets to establish eligibility for the affidavit of support, NVC is requesting W-2s and a joint sponsor –NVC answered that its processes for affidavit of support eligibility remain the same as per 9 FAM 601.14-6 d to request W-2s for the periods of employment if a sponsor submitted a copy of the tax return (1040) regardless of filing status or if the sponsor submitted an original tax transcript and is only using his or her income to meet the poverty guidelines. (We have found that explanations have been useful here).

3. Happiness or Sadness When IJ’s Dismiss Cases.

Are you happy or are you sad and does it depend upon what kind of case you have? TRAC reported on July 29, 2022, that DHS is failing to file NTAs (Notices to Appear) with the courts, and this is leading to one out of every six new cases being dismissed by the court. According to the article, Border Patrol agents are given the ability to use the immigration courts’ Interactive Scheduling System (ISS) to directly schedule an initial hearing. Supposedly, the actual NTA is created at the same time and a copy given to the asylum-seekers with the scheduled hearing location and time they are to show up in court noted on the NTA. CBP (Border Patrol is part of Customs and Border Protection) then only has to follow up with the task of seeing that the court also receives a copy of the NTA. The article opines that with the implementation of the court’s ECAS (EOIR and Appeals System) system of e-filing, this should make the process quick and straightforward (ha ha!). The article says that the failure to have this done suggests that there is a serious disconnect between CBP personnel entering the cases on an NTA and other CBP personnel responsible for submitting a copy to the court. The article further says that this is exceedingly wasteful of the court’s time and problematic for the immigrant and possibly the attorney if they show up at hearings only to have the case dismissed by the IJ because the case has not actually been filed with the court. Question – in weak cases, don’t you think that the alien and his or her representative will be jumping up with joy?

4. Little to Do in Office with September Visa Charts.

The one thing to be said about the September Visa bulletin is that it simplifies the job in many law offices of tracking the movement of cases occasioned by changes in the monthly charts. The September bulletin is a repeat from August with the only change being in China’s EB-5 (Immigrant Investors) final action date moving up one month to 12/22/15 and dates of filing one week to 1/1/16. It did give DV (Diversity Visas) cut off dates for October and finalized numerical limitations for FY-2022 as being 226,000 for the worldwide family sponsored preference limit, and 281,507 for the worldwide employment-based (EB) preference limit. It remains to be seen whether USCIS/US consular posts will be able to use up most of if not all of the EB numbers.

5. NRC News.

There was an interesting article in the Wall Street Journal that shed some light on the National Record Center (NRC), a place where USCIS has occasionally informed us that some of our cases are located that we are tracking at one time or another. NRC in Lee’s Summit, Missouri, is the central hub of storage, preservation, and overall management of A-Files prior to their long term, inactive storage in a NARA (National Archives and Records Administration) Federal Records Center and eventual permanent transfer to the National Archives. According to the article, NARA/National Archives is a federal storage facility that had all but closed for Covid-19; that the National Archives operates miles of limestone caves beneath the Kansas City Metro area, where millions of individuals’ immigration histories are stored. This article was occasioned by a suit for delayed citizenship revealing that citizenship officers are required to look through the histories when considering an immigration application; and that before the pandemic, USCIS routinely requested immigration histories from the archives in Kansas City without issue, but due to COVID and to minimize the time employees spent underground, the National Archives stopped responding to all but emergency requests. Finally in March, the archives fully reopened its facilities and as of May, it was processing all incoming requests. At the time of writing, there were 87,500 pending requests for immigration histories, down from a high of 350,000 in January. 

6. ETA 9089 Filling Where No Sunday Newspaper.

In the 2022 AILA Spring conference and DOL’s Open Forum on the question of how employers should complete the mandatory Sunday newspaper advertisements where there is no Sunday newspaper of general circulation like in North Dakota where the newspapers have transitioned to weekend editions released on Saturdays, OFLC (Office of Foreign Labor Certifications) said employers should still place their Sunday newspaper ads in the weekend edition of the newspaper. On the 9089, the employer should say “no” in section I.c.8 requesting whether there is a Sunday edition of the newspaper; and then after including the newspaper’s name in section I.c.9, the employer should indicate “Weekend Edition – No Sunday Edition Available”.

 

As published in the Immigration Daily on July 22, 2022

1. Contacting USCIS on rejected and no receipt cases.

Filers of immigration cases are occasionally frustrated in submitting petitions and applications to a USCIS lockbox and having their packages rejected and returned with little explanation. The Ombudsman’s revised June 2022 handout “When to Contact a USCIS Lockbox” outlines the procedure for seeking clarification on why USCIS rejected the form, or when more than 30 days have passed since USPS or a courier service confirmed delivery and USCIS has not taken the money, or 30 days have passed since USCIS processed the fee but has not given a receipt notice. For these situations, it advises that individuals should email queries to lockbox support@uscis.dhs.gov and include the

• Form number.
• Receipt number, if available.
• Petitioner/applicant’s name (include the beneficiary’s name, if applicable).
• Mailing address of the petitioner/applicant.
• Delivery confirmation tracking information (if you are seeking to locate a package).
• Payment type submitted and if USCIS received payment.
• Do not provide A numbers or Social Security numbers.

While this is not a perfect system in our experience, following the outlined steps can help in many cases.

2. 3/10 year bars can be satisfied in some cases while living in US.

There is an interesting 6/24/22 policy alert from USCIS affecting the 3 and 10 year bars in which the bars will continue to run regardless of whether a person is outside or reentered the US – however, that a person who has reentered the US and is in unlawful status may accrue another 3 or 10 year bar.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), most individuals staying in the US illegally for more than 180 days or one year or more after April 1, 1997, are barred from returning to the US for three or 10 years respectively.

How would this policy work in practice? Under the alert, for example, it would appear that a person who overstayed for six months or one year, left and reentered the US with H-1B or L-1 visa along with a nonimmigrant waiver of the bar, might be able to run out the 3 year bar and possibly the 10 year bar while in the US dependent upon when he or she reentered. If in the same classes and coming in without a waiver, he or she could theoretically exhaust the 3 or 10 year bar while living here, but then subject himself/herself to inadmissibility based upon visa fraud/misrepresentation in reentering without a waiver. And if a barred individual reentered the country illegally, he or she could theoretically stay up to 180 days without incurring a new 3/10 year bar, but could be subject to the permanent bar (only able to apply for a waiver after 10 years) for reentering the country illegally if he or she had previously spent one year illegally in the US.

3. NYC CIS District Office policy changes coming.

Applicants for immigration having interviews in the New York District office of USCIS have long been able to enjoy two advantages that applicants in many other USCIS offices have not had – Service provided interpreters and the certainty of married couples not being separated for questioning at first interview. In part, the interpreter advantage was occasioned by unscrupulous consulting agencies providing interpreters who did not interpret statements that were unfavorable to the applicant. That led to the New York District providing interpreters at the time of interviews and rejecting those brought in by applicants unless the District was unable to provide an interpreter in the same language. The current Acting District Director, Denise Frazier, indicated that those policies would change in a stakeholder meeting on June 22, 2022. On interpreters, New York will start following the practice of most of the rest of the country and applicants will have to begin bringing in their own interpreters telephonically. Director Frazier said that the District would begin messaging everyone on this in the coming days so that no one is surprised. On marriage interviews, it was conceded to this writer’s question at the meeting that New York historically has not separated couples at the time of first marriage interviews. The Brooklyn field office is conducting a pilot program under which it has been sending out notices saying “Stokes” on some initial interview notices for marriage-based adjustment cases or standalone I-130s and then having a normal interview conducted – to which the Brooklyn section chief said that this was part of a movement in which officers evaluate in phase 1 whether to have an interview at all and in phase 2 to decide that such is necessary and that the Stokes language is in line with the Stokes agreement.[1]  Director Frazier said that this was a pilot program in which Brooklyn was participating, but that the entire District would be sending out such notices by July and August. The upshot is that New York will begin having the ability to separate people at the initial interviews and questioning them under Stokes procedures and that it will be up to the officer whether to conduct a normal or Stokes interview.

4. Flexibility period for RFE’s, RFI’s, NOIDS’s, etc. likely at an end

The final flexibility date may be July 25, 2022. In its last release of flexibility dates on 3/30/22, USCIS said that it anticipated that this may be the final extension of those flexibilities which have allowed an additional 60 days in most cases to respond to USCIS communications. If such is true, the extra time will be missed as many organizations and individuals have not returned to pre-Covid operational levels. USCIS has added to the list of included actions occasionally during the flexibility time of March 1, 2020 – July 25, 2022, and the current list covers:

• Requests for evidence (RFE’s);
• Continuations to request evidence (N-14);
• Notices of intent to deny (NOID’s);
• Notices of intent to revoke (NOIR’s)
• Notices of intent to rescind;
• Notices of intent to terminate regional centers; and
• Motions to reopen an N-400 pursuant to 8 CFR §335.5, receipt of derogatory information after grant.

Applicants and petitioners should look at the Request for Evidence or other to see whether it was issued on or before 7/25/22 for entitlement to the extra 60 days.

USCIS will also consider a Form I-290B Notice of Appeal or Motion, or Form N-336 Request for Hearing on a Decision in Naturalization Proceedings if:

• The form was filed up to 90 calendar days from the issuance of a decision; and
• USCIS made the decision between November 1, 2021 – July 25, 2022 inclusive.

5. August visa chart shows multiple FB and few EB changes.

The August visa bulletin arrived fairly early on July 12 –fairly early given the lateness of most of the recent bulletins. F-2A (spouses and unmarried children under 21 of LPR’s) remains current on both “final action dates” and “dates of filing” charts except for Mexico with a backup date of 4/22/19 for final action dates. Otherwise, FB (family-based) final action dates: Everything remains the same from last month. FB dates of filing: F-1 (unmarried sons and daughters over 21 of USC’s) moves forward one month and one week to 8/8/16, F-2B (unmarried sons and daughters over 21 of LPR’s) three months to 1/1/17, F-3 (married sons and daughters of USC’s) one month and one week to 11/8/09, and F-4 (siblings of USC’s) one month and one week to 12/15/07. Of the three countries with differences, Mexico and the Philippines were static from last month and India’s F-4 remains the same at 2/22/06. EB (employment based) final action dates: Very much the same from July’s chart except that China EB-3 (professionals and skilled workers) advances one month to 4/22/18, and India’s EB-3 and EB-3W (other workers) advance one month to 2/15/12. EB dates of filing: The only changes are China EB-3 advancing one month and three weeks to 5/22/18, and India’s EB-3/EB-3W moving one month to 2/22/12. DV (Diversity visas): All countries are current.

The Government fiscal year closes at the end of September, so no large changes are expected in the next visa bulletin. One can only hope that the charts advance significantly with the opening of FY 2023 in October.

For August, USCIS is choosing the “dates of filing” chart for FB and “final action dates” chart for EB cases to decide who can submit I-485 adjustment of status applications for permanent residence.

[1] The Stokes judgment was a 1976 consent agreement of the New York District office comprising 56 points elucidating the rights of individuals at marriage interviews and the procedures under which they were to be interviewed including written notice of the procedures and rights which “shall” be included as part of the call-in forms.