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 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.

  1. 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.

  1. 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.

  1. 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.
  1. 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.