Category: News

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.

 

As published in the Immigration Daily on June 20, 2022

1. Some movement on July visa bulletin.

Finally, some movement on family-based (FB) cases on the dates of filing chart although the employment-based (EB) categories hardly moved with the exception of the China and India EB-2 categories on both dates of filing and final action charts. The July visa bulletin is out with the following developments – FB final action dates – Only Mexico advanced, F-1 moved 1½ months to 3/15/00, F-2B two months to 4/1/01, F-3 one month to 10/15/97, and F-4 three months to 6/1/00. FB dates for filing had a lot of movement as worldwide F-1 advanced 1½  months to 7/1/16, F-2B one week to 10/1/16, F-3 one month one week to 10/1/09, and F-4 one week to 11/8/07. The rest of the action here was Mexico’s F-1 moving forward seven months to 12/1/01, F-2B three months one week to 8/8/01, F-3 1 ½ months to 4/15/01, and F-4 two weeks to 3/15/01. It should be noted that F-2A remains current for all countries under both charts. EB final action dates – China EB-2 moved one month forward to 4/1/19, and the big story is that India EB-2 moved three months to 12/1/14. EB dates of filing saw China EB-2 moving forward one month to 5/1/19 and India’s EB-2 moving forward one month to 1/1/15. The Central American countries El Salvador, Guatemala, and Honduras EB-4 and certain religious workers categories advanced almost 6 months to 12/8/17. Diversity cases – all DV numbers in July are current for all countries except Egypt, Nepal, and the Bahamas, and all numbers for all countries will be current for August.

It should be noted that USCIS is using dates of filing for FB cases and final action dates for EB adjustment of status applications.

2. Renewed guidance on distance learning.

ICE reaffirmed to all SEVIS users on 5/31/22 that the policy of allowing schools and students to engage in distance learning in excess of regulatory limits due to Covid-19 only applies to students who were actively enrolled on 3/9/20, and have continually complied with the terms of their nonimmigrant status. Students enrolling after 3/9/20 must adhere to the existing regulations regarding online learning. Under the March 2020 guidance, active F and M students are permitted to temporarily count online courses towards a full course of study in excess of the regulatory limits. Under the regulatory limits, online courses cannot count toward a full course of study for M and English language training students, and only one online or distance learning class can count toward a full course of study for an F-1 student during each term or semester.

3. Changed lockbox for some I-485 EB filings.

Be aware that for cases with pending or approved I-140s, there is a change of address for I-485’s beginning on 6/6/22 for persons residing in New Jersey or New York. The I-485’s must now be sent to the Elgin lockbox. If filing concurrent I-140/I-485’s, those still go to the Dallas lockbox. The address of the Elgin lockbox is:

USPS

USCIS
Attn: NFB
PO Box 4115
Carol Stream, IL 60197-4115

Courier

USCIS
Attn: NFB (Box 4115)
2500 Westfield Dr.
Elgin, IL 60124-7836

4. NVC current processing times.

In responses provided to the American Immigration Lawyers Association in lieu of the National Visa Center participating in the Spring 2022 liaison meeting, NVC acknowledged that its processing times continue to be lengthy due to substantial backlogs and that practitioners should refer to the NVC time frames page on travel.state.gov to track the current public inquiry form response time and that the processing dates are updated weekly. It should be noted that NVC is also no longer answering its telephones so that it can catch up on the backlog. NVC now wishes everyone to look at its site for processing times before sending in inquiries which are not yet up to the date of processing. The site can be accessed at https://travel.state.gov/content/travel/en/us-visas/immigrate/nvc-timeframes.html, or you can just type in on Google “NVC processing times”.

Currently NVC is taking two weeks to create a visa case and enter the data from the petition into the system after getting the file from USCIS (working on cases received 6/2/22 as of 6/13/22); taking 2 ½ months to review documents being sent to them (reviewing documents sent to NVC on 3/30/22 as of 6/13/22); taking one month and three weeks to respond to inquiries (responding to inquiries received on 4/22/22 as of 6/13/22).

5. USCIS says “go Fish”

We realize that USCIS is behind the 8 ball in many areas, but it should improve especially in providing information to individuals on the status of their cases. The superficial improvements to the published processing times are not very helpful, especially when applicants are given an unrealistic distant date in the future on which they can inquire about their cases after putting in their receipt dates and clicking onto “Get Inquiry Date”. Also the site’s assurance that a person’s case is processing normally is based on no actual knowledge whatsoever. More disturbing is the lack of accommodation in the local USCIS offices with the mantra that everything has to go through the USCIS Contact Center before appointments can be scheduled locally. The difficulty here is that live representatives in the Contact Center are hard to reach and ofttimes unwilling to set up appointments for people to go to the local field office. A further problem is the nonsensical and essentially “go Fish” answers that are being given by USCIS on case inquiries that take about a month to respond to and can come from a variety of immigration offices and service centers that clearly have not even looked at or studied the case, most likely have not even accessed the file, and do not know what to do except to give platonic and not useful answers. For example, on an I-212 (Application for permission to reapply for admission into the US after deportation or removal) case remanded to the New York District office over a year ago, our most recent response last week was from the California Service Center thanking us for the inquiry with the message, “We will review your request and provide notification if additional information is needed.” At the very least, USCIS should make an effort to really solve people’s problems than to provide answers from a service center having nothing to do with the case, having no knowledge of it, and giving the appearance of merely satisfying a USCIS scorecard by racking up robot answers.

As published in the Immigration Daily on May 18, 2022

1. Doyle memorandum gives hope to those in removal proceedings.

The memorandum by Principal Legal Advisor Kerry E. Doyle on April 4, 2022, changes the landscape of prosecutorial discretion (PD) used by the government in immigration cases. It is estimated that aggressive use of the PD guidelines will knock approximately 700,000 cases from the 1.7 million backlog of the immigration courts. ICE attorneys are to prioritize three groups of cases – threats to national security, threats to public safety, and threats to border security – and they are to use prosecutorial discretion for other cases in deciding actions such as “filing an NTA; moving to dismiss, administratively close, or continue proceedings; stipulating to the issues, relief, or bond; or pursuing an appeal.” In defining threats to border security, DHS included those who engage in serious immigration benefit fraud that threatens the integrity of the immigration system giving examples as fraud that has been criminally prosecuted including knowingly entering into a marriage for purposes of evading any immigration law or knowingly forging, counterfeiting, altering or falsely making certain immigration documents or their use, possession, or receipt; fraud that has resulted in or is significantly likely to result in a frivolous asylum bar finding; serious types of fraud that cannot be waived as a matter of law like certain false claims to US citizenship; and fraud that reflects an attempt to circumvent the immigration laws by multiple persons like document mill forgers.

The memorandum also gives some hope to cases that have already been closed and final orders of removal issued whereas previously there was no or little chance of reopening. The memorandum makes clear that the concentration for PD will be on active cases and not inactive ones. These requests are to be treated with lower priority as per a just-released instruction sheet by the New York City Office of the Principal Legal Advisor. Yet there is some hope in the memorandum language that government attorneys can join a motion to reopen to allow a nonpriority case to proceed on an application for permanent or temporary relief outside of immigration court as well as relief before the immigration court if such relief was not previously considered. It further adds that cases that can be reopened and dismissed for the consideration of new relief before USCIS will be viewed most favorably for joint motions to reopen.

It remains to be seen how the Doyle memorandum will play out in practice in the joint reopening of cases, but we note that the better chance for reopening will likely be the simpler cases without major impediments.

2. June visa chart big effects.

Notes on the visa chart for June 2022 – FB (family-based) dates of filing are the same as in the chart for May 2022; FB final action dates are all the same except for Mexico F-1 (sons and daughters of US citizens over the age of 21 and single) advancing one month to 2/1/00, F-2B (sons and daughters of LPR’s over the age of 21 and single) one month to 2/1/01, and F-4 (brothers and sisters of US citizens) two months to 3/1/00; EB (employment based) final action dates have the big change of India moving one year to 9/1/14 under EB-2 (professionals holding advanced degrees or persons of exceptional ability) and EB-W (unskilled workers requiring less than two years of work experience) worldwide moving from current except for a few countries in May to having a backlog date of 5/8/19– on EB-5 (immigrant investors), all China cases including direct investment have a backlog date of 11/22/15 (last month, only regional cases had a backup date) and all the visa set-asides for rural, high unemployment, and infrastructure investments are current as it has not yet been made known how they will be implemented (new and old or only new cases) and new cases have not yet been accepted; EB dates of filing remain the same except for the EB-5 backup date of 12/15/15 also applying to direct investments (last month current), and it should be noted that the Department of State does not appear to want the gates completely thrown open as it left India EB-2 at 12/1/14 (opening Indian dates of filing past the October 2020 India EB-3 date of 1/1/15 would invite a huge wave of adjustment of status applications). Diversity visa numbers became current for all regions for June and July with the exception of the Bahamas, Egypt and Nepal to maximize number use; and the State Department is warning that F-2A worldwide may have a final action backlog date as early as August.

3. USCIS gives 540 day extensions for many EAD renewals.

 With the temporary final rule, “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants,” FR 87 FR 26614 (May 4, 2022), USCIS is now giving a 540 day extension for persons with pending or new EAD renewal requests that qualify for 180 day extensions. This is certainly a much needed rule given the inability of the agency to adjudicate many employment renewal requests within a reasonable period of time because of various reasons. Such delay has spawned lawsuits and much hardship of individuals and families losing livelihoods for lack of renewal of the employment card. Certainly not helpful was the agency’s extremely stringent expedited rules making it unlikely that a request for expedite would be honored. USCIS will not be giving out new I-797C receipts, but says that receipts referring to a 180 day extension along with the expiring EADs will still receive the up to 540 day extension under the rule. This should be good enough for employers filling out I-9’s as an E-Verify notice on May 4 requires them to update section 2 of the employee’s I-9 to reflect the extension increase provided by the temporary final rule. The major eligibility requirements for automatic extension are that renewal applicants timely filed an application to renew prior to expiration based upon the same employment authorization category on the front of the expiring EAD and that their EAD applications fit within certain classes of which the most common are refugees A3, asylees A5, those granted withholding of deportation or removal A10, those granted TPS A12 or C19, spouses of E-1/E-2/E-3 A17 and L-1 A18 non-immigrants, those pending asylum or withholding of deportation or removal C8, applicants for adjustment of status C9, applicants for suspension of deportation or cancellation of removal C-10, and H-4 spouses of qualifying H-1B non-immigrants C-26.

4. More stats on H-1B season.

My partner, Arthur Lee’s article, “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 petitions selected in FY 2020, the year before USCIS switched to the lottery registration system, and attributed it to the low barrier of $10 that it costs an organization to put up a registration and the lack of sufficient penalties on employers not following through with H-1B petitions. He advocated a higher fee for registration. USCIS recently released figures for FY 2023 that it received 483,927 registrations, a whopping 175,314 registration increase representing a 57% increase over the previous year. This writer worries that something is clearly not working here, especially given the number of selected registrants from last year who did not have petitions filed for them, thus forcing USCIS to conduct second and third rounds of selection in July and November. Will that happen this year? USCIS selected a larger number of registrants this March, 127,600, than last year’s initial total of 87,500, undoubtedly in the hopes that it would not have to conduct additional rounds of recruitment. However, if the same scenario unfolds with USCIS having to run additional registrations to satisfy the 85,000 H-1B cap quota number, then it might seriously consider erecting a better “moat” than $10 to better separate serious organizations and their candidates from the semi-serious. Such could improve the anemic 26.4% success rate in registration selection.

5. Improvement on USCIS published case processing times?

USCIS is implementing a new online case processing time system which is cosmetically more appealing and less confusing than the previous published processing time although one might ask USCIS whether it can do more. With the prior iteration, a seeker of information clicked onto the type of form and then scrolled down on which benefit application he or she wanted to check relating to the form, e.g. I-129 H-1B, H-2B, H-3, L-1, etc. After such clicking, more clicking was required to identify the service center or local immigration office holding the case. Then another click to get the processing time. In the new iteration, the seeker is asked to identify the form, click again for the form benefit, then click for the USCIS office holding the case, before clicking again for the processing time. One of the big differences as stated by USCIS is that you now only get one figure for processing time, which represents the 80^th percentile processing of cases in a particular category, e.g. two weeks ago, the case processing time for the California Service Center for an F-4 case was 136.5-177.5 months – this week, it is 138.5 months. Another feature touted as improved is the day to inquire if the application or petition is overdue. For the F-4 case two weeks ago, the time to inquire was if the F-4 petition was filed before 7/28/07 – this week, you put in your receipt date, and if you put in one like in one of our cases, 10/19/11, and click the button, the response is that “Your case is processing normally”, and the earliest you can submit questions is October 15, 2026. It also includes the admonition “Please do not contact us before this date”.

A number of problems exist because of delayed USCIS processing times, especially for immigrant visas, on which USCIS should do more to better the lives of people. First and foremost is that petitioners in the US many times die and for those relatives overseas who hoped to join them and now still hope to join other members of the family in the US, there is generally no hope as even a device like humanitarian reinstatement is only afforded those with approved petitions. DHS should work with Congress to promote some form of legislation to allow humanitarian reinstatement applications to be filed where USCIS adjudications take an inordinate period of time like F-4 which at 138.5 months is 11 ½ years. Petitioners move and miss USCIS correspondence which many times means the demise of the case. USCIS should have a more forgiving attitude to reopen cases even where the petitioner never informed the agency of the move. Petitioners many times simply do not receive the correspondence and USCIS should again exhibit a more forgiving attitude. These are just some examples. And while it is nice to have an exact date on which individuals can submit a question on the case (see above October 15, 2026), what does the petitioner do if the case was approved long before the date, was forwarded to the National Visa Center, which subsequently attempted contact and after unsuccessful attempts, terminated the case? The admonition to not contact before a certain date is not helpful. Finally, there is no real assurance that a petition or application is “processing normally” as this information system does not take account of the individual case number and the statement is only based upon a general overview of the cases.

 

As published in the Immigration Daily on March 31, 2022

1. Cap H-1B selection process announced complete – start the petitions!

USCIS announced on 3/29/22 that the H-1B selection process was completed and that online accounts would either show submitted, selected, denied, or invalidated failed payment. Petitions can be submitted beginning April 1 and petitioners will have at least 90 days to submit petitions; a petition must be properly filed with the correct service center and within the filing period indicated on the registration selection notice; and that petitioners must include a printed copy of the selection notice with the petition. Other parts of the announcement were that USCIS will not be using any prepaid mailers, [e.g. FedEx labels], to send out communications or approvals. Also, that issuance of I-797 receipts may be delayed – that if more than 30 days pass since confirmation of delivery and no receipt, petitioners should contact the USCIS Contact Center for assistance.

2. EB-5 regional center reauthorization/reform law to begin in May.

A happy development has been the reauthorization of EB-5 regional centers for five years until September 30, 2027 in the “EB-5 Reform and Integrity Act of 2022”. The legislation goes into effect on 5/14/22, 60 days from the President’s signing on 3/15/22. There will likely be a number of changes in the May or June visa charts. Among the expected developments are backlogging of the China EB-5 direct investment category and a long date for China regional center cases. Some of the important features are carveouts for visa numbers – 20% for rural cases, 2% infrastructure cases in which federal, state, or local governments contract for EB-5 financing for the maintenance, building, and improvement of infrastructure, eg. private municipal bond deal, and 10% for areas of high unemployment. If these categories are more favorable than others for natives of China, they may feel inclined to invest in these types of projects. TEA (Targeted Employment Area) investment for rural and high unemployment areas will go up to $800,000 and the same amount will apply for an infrastructure project (which does not have to be in a TEA), and all others $1,050,000. Every five years beginning in 2027, the investment amounts will rise based on the change in the CPI (consumer price index). Federal and not the state will now determine whether the proposed area is in a high unemployment area or infrastructure project. A high unemployment area with 150% of the national rate of unemployment will be the census tract in which the NCE (new commercial enterprise) is principally doing business, and any adjacent census tract – the so-called “doughnut” approach. All present pending and filed cases will be grandfathered to the point that any future lapse in extending the regional center program will not affect adjudication and visa allocation. For investors in the US from countries with open quotas, they will be eligible to file concurrent I-526/I-485 applications. The dangling petition situation in which legislative nonrenewal of I-526 petitions filed up to June 30, 2021, left them hanging in uncertainty as to whether the cases could continue has been mostly alleviated by a provision that government agencies must continue adjudicating petitions and allocating visas to regional center investors who filed I-526 petitions up to September 30, 2026.

3. Title 42 news including Ukrainians.

Title 42 has been big in the news this month with the Administration giving case-by-case exceptions to Ukrainians and with two court cases, one with the Court of Appeals in Washington DC and the other with a District Court in North Texas. CBP came out with a memorandum on 3/11/22 announcing exceptions under Title 42 for Ukrainians – that the public safety pandemic concern that has been used to turn back migrants without allowing them a chance to apply for asylum, will basically not apply to Ukrainians at land border ports of entry – “that CBP is authorized, consistent with the Title 42 Order, on a case-by-case basis based on the totality of the circumstances, including considerations of humanitarian interests, to except Ukrainian nationals at land border ports of entry from Title 42.” Who is eligible? “Those “who are in possession of a valid Ukrainian passport or other valid Ukrainian identity documents, and absent risk factors associated with national security or public safety, may be considered for exception from Title 42 under this guidance.” Those granted an exception can be processed for any disposition “including urgent port of entry humanitarian parole on a case-by-case basis.” This may precipitate a rush of the southwestern border by Ukrainians. In the DC case, Huisha-Huisha v. Mayorkas, the DC court made the ruling that although the executive is allowed to use Title 42 to expel persons attempting to enter the US without an asylum hearing because of pandemic concerns, he is not allowed to send them back to countries where they face persecution. The Administration had been sending many back to countries of persecution. In the Texas case, Texas v. Biden, the judge said that the Administration could not continue exempting children from Title 42. The Title 42 ban is set to expire in early April and the question is whether the Administration should continue extending it. One writer said that stopping it would solve both problems. The Biden Administration appears to be leaning in that direction even though such action would promote a run on the border and perhaps cause problems in giving a midterm election line of attack for Republicans. News reports today indicate that the Biden Administration is willing to take the risk and lift Title 42 restrictions in May.

4. No more paper I-94’s at the border.

On another border issue, CBP gave notice on 3/18/22 that it will no longer be issuing paper I-94’s for land crossings, but only electronic I-94’s. So we should not be surprised from now on that persons crossing the border on TN and other statuses will no longer have paper I-94’s.

5. The departure of expanded expedited removal.

The Federal Register notice which expanded expedited removal, 84 FR 35409 (7/23/19) was rescinded on 3/21/22 by another notice in the Federal Register, 87 FR 16022 (3/21/22). Now we are back to the future. Under expanded expedited removal, the previous boundaries of only using it when undocumented immigrants were discovered within 100 miles of the Mexico/Canada borders and being here less than two weeks were expanded by Mr. Trump so that it could be used against undocumented immigrants discovered in any location in the country and they would have to prove that they were here for at least two years two years before being exempted from expanded expedited removal. Although not used much, the threat of it caused panic to many members of the immigrant communities.

 

As published in the Immigration Daily on February 14, 2022

1. Will K-3s come back into vogue?

The K-3 visa was instituted in 2000 when legacy INS took years to approve immediate relative spouse cases. It allows a US citizen petitioner to file not only the traditional I-130 petition for alien relative, but also a nonimmigrant I-129F K-3 petition for the married spouse. As the agency improved on backlog processing, use of the K-3 option decreased drastically, especially as the petition was nullified if both I-130 and I-129F met each other at the next waystation of the process after approval, the National Visa Center (NVC). Although USCIS processing times are known to be many times unrealistic, the published times give one pause to consider the possibility of K-3 petitions to all service centers except Nebraska. The following are the published processing times as of February 12, 2022, for immediate relative and K-3 petitions:

Service Center             I-130 processing times               K-3 processing times

California                         29.5-38.5 months                        9-12 months

Nebraska                             4.5-7 months                              5-7 months

Potomac                            12.5-16 months                            3.5-7 months

Texas                                  10.5-14 months                            3.5-7 months

Vermont                            11.5-15 months                             7-9 months

K-3 processing times at the consulates and embassies track the time for immigrant visas according to State Department information, so it would appear that there may be some merit to considering K-3 petitions at this time. If USCIS reduces the I-130 backlog times or processes cases out of chronological order (as we have seen in some of our cases), the attraction of the K-3 visa becomes less.

2. Why base PERM prevailing wage determinations on alternative requirements now?

For those attorneys whose practices include PERM labor certifications for permanent residence, the Department of Labor announcement through FAQs on July 16, 2021, relating to implementation of its revised prevailing wage determination form, ETA 9141, was a disappointing surprise in demanding that employers use the higher wage of either its principal or alternative requirements as the prevailing wage. The labor certification process is the method by which employers must test the American job market for able, qualified, available and willing US workers before a non-US worker can obtain residence status through nonavailability of US workers for the position. The sponsoring employer in the first step applies to the Department for a weighted-average wage in the job locality by informing the Labor Department of the job title, duties, and requirements and upon receiving a prevailing wage determination, then offers that wage to US workers in the recruitment process. Many employers not only have a principal set of requirements, e.g. Masters degree +3 years of experience, but also an alternate set of requirements, e.g. Bachelors degree +5 years of experience, that they will accept to attract a higher number of candidates and also sometimes because the non-US worker being sponsored might only qualify under the alternative requirements. Over the years, the Department policy had been to only consider the employer’s principal requirements for purposes of setting the wage to be assigned in understanding that principal and not alternative requirements should govern the wage level. Yet in one fell swoop, the Department reversed historical policy through the July 2021 round of FAQs. Such penalizes an employer that has a primary set of requirements for which it is willing to pay a prevailing wage by forcing it to now recruit such workers at a higher rate of pay if the Labor Department determines that the alternative requirements command a higher wage. Such makes little sense historically and logically. In addition, the upward forcing of wages does not serve the country’s best interests in the battle against inflation as it becomes part of an everlasting cycle of raised wages and raised product prices in response which largely contributes to the current rise of inflation in the US (7% from January 2021-January 2022). The author would be interested to know whether there is any attorney, firm, or organization with pending or impending litigation over the new policy.

3. Why 10-year LPR instead of 2-year CPR cards for those married less than two years?

Section 216 of the INA states that an alien spouse is considered a conditional resident who obtains status by virtue of a marriage entered into less than 24 months and that this applies to both spouses of US citizens and permanent residents. (Please note that this does not include spouses immigrating with their spouses – only those who are petitioned on form I-130). We have anecdotally seen cases in which such spouses of permanent residents recently approved for adjustment of status were given 10 year green cards instead of 2 year conditional residence cards. It may be that the current open availability of the F-2A visa category (for spouses and children of permanent residents) versus the past backlog in the category may be causing some confusion among USCIS adjudicators since F-2A cases used to take well over two years, but such errors have capacity for damaging future effects, and we encourage officers to be more careful in noting the marriage date. It is academic that an I-751 petition to remove the conditional basis of residence status must be filed within the 90 days preceding the second anniversary of the issuance of conditional permanent residence. A conditional resident who fails to file is not considered to be lawfully in the country. In addition, such an applicant who later files for naturalization would be denied, and informed that he or she would still have to file the I-751 petition. Mayhaps USCIS will apologetically recognize its error and offer the individual an opportunity to file the I-751 out of time, but such a result would nevertheless cause the applicant much stress not to mention the loss of time, energy, and money in filing and paying for an unsuccessful citizenship application.

4. Photos needed at naturalization oath ceremonies?

What do you ask your client to bring to USCIS for a naturalization interview? For convenience’s sake, we encourage them to take everything with them even though officers may only be interested in a few items. We also suggest bringing new passport size photos- if they wish- on the off-chance that an officer may ask. But we never thought that photographs would be requested at the swearing-in ceremony. Lo and behold, a client recently reported to us that at the oath ceremony for herself and husband, she was requested to provide passport photos while her husband was not. Such necessitated her having to exit the building, find a place that took photos (usually a few around federal buildings), and hustle back to the building in time for the ceremony. And she further informed us that the officer told her that “This happens all the time.” The moral appears to be that, if an applicant is willing to take new passport photos, it may be prudent to take the photos not only to the interview, but to the oath ceremony as well.

5. New forms for April and new USCIS lockbox in Elgin, Illinois.

The penalty for filing old or noncurrent forms with USCIS is rejection of petition or application, which can be both embarrassing and damaging if there is a time deadline. The watchword is to always look at the form edition and compare it with the current form in use before filing. A list of recent changed forms that will come into play in April are:

• I-864 and all its variations (A, EZ, W) – 12/8/21 editions as of 4/7/22 only.
• I-829 – 12/8/21 edition as of 4/7/22 only.
• I-824 – 12/2/21 edition beginning 4/7/22 only.
• I-102 – 12/2/21 edition as of 4/7/22 only.

USCIS also announced the opening of a new lockbox in Elgin, Illinois, for which I-751s must now be filed for those residing in New York, New Jersey, and most of the East Coast. The address of the lockbox is:

(USPS)

USCIS
Attention: I-751
PO Box 4072
Carol Stream, IL 60197-4072

(FedEx and other couriers)

USCIS
Attention-I 751 (Box 4072)
2500 Westfield Dr.
Elgin, IL 60124-7836

In addition to taking I-751s, the lockbox in Elgin will also begin accepting additional workloads including N-400s and I-130s  in the coming weeks and USCIS expects the transition to Elgin to be completed by late summer 2022. Additionally, it expects to move the lockbox facility in Arizona from Phoenix to Tempe in Fall 2022. So keep your eyes open!