Category: News

As published in the Immigration Daily on March 25, 2024

1. The Ending of This Year’s H-1B Registration– What Are Your Odds?

With the final registration filed before noon Eastern Standard Time on March 25, 2024, the book now closes on H-1B cap registrations for the year. Pending the results, USCIS appears to have done a good job in implementing the February 2, 2024 final rule, “Improving the H-1B Registration Selection Process and Program Integrity”. The most important part – a fix to cut down on the rampant fraud of past years when USCIS moved from a full paper petition- based filing registration system to one simply based upon organization registration and payment of a small $10 fee to identify each of its candidates – was implementation of the beneficiary centric process through selection by unique beneficiary rather than by the number of organization registrations. In such process, even if 25 organizations put in registrations for the same beneficiary, the system would only identify the beneficiary once for purposes of selection rather than giving the beneficiary 25 chances.

So what are the odds? USCIS gave its forecast of the number of registrations that it expected to receive in another final rule, “USCIS Citizenship and Immigration Services Fee Schedules and Changes to Certain Other Immigration Benefit Request Requirements” on January 31, 2024 – 424,400. Assuming that the number is somewhat accurate, we believe that the percentage picked will be somewhere in the area of the low 30%’s based upon past selection records of the agency. Throwing out last year in which USCIS picked 188,400 after the hue and cry over the fraud which allowed 780,884 registrations, the average number of selections over the previous three years was 127,980 [1]. Such yields a selection rate of 30.15% of the 424,400 estimate, and would be an improvement over last year’s fiasco in which the selection rate was 24.1%. If the number selected is greater, or the number of individual beneficiaries less than estimated, the percentage of selection would be correspondingly higher than 30.15%. We can only hope.

Good luck to all participants in this year’s selection!

2. April 1 –Complex Intertwining of New Fees and Forms for Certain Applications and Petitions.

Unless blocked by litigation, the fee schedule implemented by the above final rule will come into effect on April 1, 2024. Many of the fee changes are straightforward, going from an old fee to a new fee, although some are humongous such as the fees for immigrant investors in which forms I-526 and I-526E for investors to file petitions either through individual or regional investment center investments move from $3,675 to $11,160 and for forms I-956 to apply for regional center designation and I-956F to request approval for investments in a commercial enterprise jump from $17,795 to $47,695.

The below are some of the more common petitions and forms that people use which not only feature changes in fee, but also tack on new charges to bring about more revenue to USCIS and/or to help cover the asylum program expenses.

• I-130 – Increase of $90 for online filing ($625), $140 for paper filings ($675) (required for concurrent I-485 filings).
• I-129 –H-1B – Increase of $320 on organizations with at least 26 ($780) and old fee of $460 for 25 and less and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
• I-129 –L-1 – Increase of $925 for companies 26 and over ($1385) and $695 fee for 25 and under and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
• I-129 –O-1 – Increase of $595 for companies 26 and over ($1055) and $530 fee for 25 and under and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
• I-140 – Increase of $15 ($715) + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
• I-485 – Increase of $215 for adults ($1440) and for child filing with one parent $200 ($950). For combination I-130/I-485 filings, $140 (I-130) plus $215 (I-485) = $355 more. Associated advance parole = $630 and EAD $260 (new fees).

Readers should check that the proper new fees are being submitted for cases postmarked to USCIS after March 31, 2024, to ensure that the petitions or applications are not rejected.

 3. April Visa Bulletin Movements and Projections.

The April Visa bulletin saw most movement in the Employment-Based (EB) final action dates chart with limited movement in the other three. Movement on the bulletin from March was as follows: FB (Family-based): B chart (dates for filing) India F-4 advanced one month two weeks to 4/8/06 and Philippines one year to 4/22/05. A chart (final action dates) F-2A advanced worldwide two months two weeks to 9/8/20 with the exception of Mexico which advanced two months to 8/15/20. EB (Employment-based) B chart (dates for filing) India EB-1 moved up three months to 4/1/21, its EB-3 advanced one month two weeks to 9/15/12 as did its EB-3W; EB-4 worldwide for ministers and for certain religious workers advanced 11 months to 12/1/20. A chart: (final action dates) China EB-1A advanced one month two weeks to 9/1/22 and India five months to 3/1/21; EB-2 ROW (Rest of World) advanced one month three weeks to 1/15/23 while China moved up one month to 2/1/20 and India one and ½ months to 4/15/12; EB-3 ROW moved one month two weeks to 11/22/22 and India advanced one month two weeks to 8/15/12; EB-3W ROW advanced one month to 10/8/20 and India one month two weeks to 8/15/12; EB-4 worldwide moved up 11 months to 11/1/20 and non-ministers went from 12/1/19 to unavailable. Unmentioned categories had no movement.

The State Department prediction of visa availability in coming months is that F-1 worldwide can advance up to three months; F-2A excluding Mexico up to six months; F-2B up to 10 weeks; F-3 several months; F-4 up to four weeks. In the EB categories, very little to no forward movement since the final action dates for many categories advanced for April 2024.

USCIS continued to use dates for filing for family-based cases and final action dates for employment-based in the month of April.

4. Unwritten Rule for Consular Processing.

In an AILA New York consular practice webinar in March, two former consular officers talked about unwritten rules and mentioned that it looks bad to the consulate when a person changes status in the US and then comes back for the visa because there is an intent issue with the consulate, especially where nonimmigrant intent is relevant, and this is a big no-no for people on tourist or business visas who may be able to get six months to stay, but the consular officer knows that most Americans would only stay a few weeks in a foreign country before going back.

5. New Worries for Chinese Graduate Students Reentering US.

This has become a hot button issue being reported on by the New York Times and Washington Post among others. Students and scholars from China with valid visas who take trips home are in danger of having their visas canceled and being sent home when they return to the US. This has happened to more than a dozen Chinese graduate students in PhD science programs at Yale, John Hopkins, and other major US research universities. In addition to having the visas canceled after being interrogated for hours, some wind up with a five-year ban on entry. Dulles Airport was reported as having the highest propensity to question and remove Chinese students so that the Chinese Embassy on January 29 warned Chinese students not to enter at that airport. Other mentioned airports in articles were Dallas-Fort Worth, Chicago O’Hare, and Boston Logan International Airport. For the foreseeable future, students and scholars from China in postgraduate science-related programs may wish to curtail nonessential trips back home.

[1] Figures from February 2, 2024 final rule, “Improving the H-1B Registration Selection Process and Program Integrity.”

As published in the Immigration Daily on January 31, 2024

1. Matter of Stockwell Brought Back to Beginning State.

Looking at the USCIS policy manual recently, it now entirely embraces Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), in which a person receiving conditional residence can marry someone else and that person can sponsor for permanent residence without having to go into the immigration court. USCIS had taken this route before, but complicated it later by saying that these applicants would have to go through the court, but now is coming back to the idea that USCIS can adjudicate.

This applies where USCIS has terminated the conditional residence for failure to timely file form I-751. Previously USCIS said that conditional residence could only be terminated by a formal notice by the agency. In the policy manual now, persons who file for adjustment of status from another marriage after the second anniversary of obtaining conditional residence, may be eligible to adjust on the new basis regardless of whether USCIS issues a notice of termination of status before the individual files an adjustment under the new basis. USCIS is now conceding that the INA provides that a conditional residence status terminates as a matter of law as of the second anniversary of the noncitizen’s lawful admission for resident status.

2. Another BIA Decision Affirms Rights of Conditional Residents through Marriage.

The BIA decided in a recent ruling, Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), to solve the problem of persons who do not have the above situation of another marriage in the wings; whom DHS believes have non-bona fide marriages, but in going to immigration court, have their cases terminated, and are left in legal limbo without lawful status. In Ferreira, the immigration judge (IJ) first concluded the DHS had not established removability and terminated and when the respondent filed another I-751, it was denied by USCIS and removal proceedings re-initiated. The IJ then terminated a second time because DHS could not find the file in two hearings. The BIA ruled that given the significance of a respondent’s interest in securing review of a denial of an I-751, an immigration judge should ordinarily review the denial of a form I-751 upon the request of the respondent.

As published in the Immigration Daily on January 22, 2024

1. USCIS Takes First Steps for H-1B Cap Season.

A big change for H-1B filings – both cap and non-cap with I-129 and I-907 is being announced to take effect in February to make everything electronic. USCIS is encouraging setting up organizational accounts to allow multiple people in an organization and legal representatives to collaborate and prepare H-1B registrations, I-129’s, and I-907’s. There will be two national engagements on organizational accounts on January 23 for companies and 24 for legal representatives as well as several smaller sessions leading up to the H-1B registration. The entire H-1B lifecycle then becomes fully electronic from registration to final decision and transmission to the Department of State. For those still doing paper filings, USCIS will transition the paper filing location from service centers to the USCIS lockbox.

This is a good change to further save the forests of the world. USCIS will have shrunk its H-1B paper footprint from two copies to the present one copy to the future no copy. If this had been announced earlier, it would have given USCIS the option of demanding complete petition filings of all interested parties instead of soliciting registrations of organizations if the new beneficiary centric registration system was not yet ready for this year’s H-1B cap selection process.

2. Policy Manual on F-1 and M-1 Students Clarifies Points of Law and Procedure.

Perusing the USCIS policy manual pertaining to nonimmigrant students, there are some new and old policies of which readers should be aware of or remember:

1. The policy manual on F or M-1 status now says that officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or immigrant visa petition as not necessarily impacting eligibility for the classification, so long as the student intends to depart at the end of the temporary period of stay – that in all cases, the officer must consider all facts presented when determining whether the student is eligible for F or M classification.
2. F-1 students may be eligible for public high school for one year after paying the school district the real cost of schooling, but there is no F-1 study allowed in public schools for elementary grade children.
3. When a student is transferring between schools or programs, the limit is five months that he or she is allowed before resuming classes at the transfer school or program, or within five months of the program completion date on the I-20 – whichever date is the earlier.
4. The policy manual reminds students on STEM OPT extensions that they have duties not only to report change of address or employer or loss of employment within 10 days of the change to the DSO, but also to complete a validation report every six months to the DSO within 10 business days of each reporting date; and submit a self-evaluation of progress toward the training goals described in the I-983 prior to the conclusion of the STEM OPT period, and both student and employer must sign each evaluation to attest to its accuracy. There must be an initial evaluation within 12 months, and a concluding evaluation.
5. On travel outside the US during the cap-gap period and returning under F-1 status, the policy manual says that travel is permitted where USCIS has approved the H-1B petition and request for change of status; the student seeks readmission before the date of the student’s H-1B employment beginning (normally October 1), and the student is otherwise admissible. If traveling when the application for change of status is pending, the change of status portion is deemed abandoned.

Knowing or remembering the rules may serve to keep the nonimmigrant student from running afoul of the intricacies of the law in this area.

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.