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.

  1. 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.

  1. 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.

  1. 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.

  1. 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 80th 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.