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As 2021 comes to an end, the White House and the Department of State have announced:

  1. South African Travel Restrictions Lifted.

The 14-day travel restrictions on southern African countries will be lifted as of midnight on December 31, 2021. Adopted on November 29th, the restrictions based on spread of the COVID-19 Omicron variant have been in effect for travelers from Botswana, Eswantini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. The requirements that all travelers to the United States, unless otherwise excepted, must be fully vaccinated and present a negative COVID-19 test taken within one day of travel remain in effect.

  1. New Waivers of In-Person Visa Interviews.

To help ease the nonimmigrant visa backlogs, consular officials will have the discretion to waive in-person interview requirements for some with H-1, H-3, H-4, L, O, P, and Q USCIS-approved petitions until the end of 2022. The eligibility requirements for those who were previously issued a visa in the same category are:

  • No visa refusals, unless the refusal was overcome or waived
  • No apparent or potential ineligibility
  • Must be applying in their country of nationality or residence

For those applying for the first time for the visa category:

  • Must be a citizen or national of a Visa Waiver country
  • No apparent or potential ineligibility
  • Previously travelled to the U.S. on ESTA

The discretionary interview waiver has also been extended until the end of 2022 for certain students, professors, research scholars, short-term scholars, or specialists (e.g., F, M, and academic J applicants), for those applying for H-2 (temporary agricultural or non-agricultural) visas, and for those who are renewing any visas within 48 months of expiration.

Because consular resources and COVID-19 restrictions vary, applicants should check the relevant embassy or consular website to confirm available services.

  1. Expired U.S. Passports Can Still Be Used.

Citizens can continue to use expired U.S. passports to return to the U.S. until March 31, 2022. To be eligible, the individual must:

  • Be a U.S. citizen
  • Be currently abroad
  • Be flying directly to the United States, a U.S. territory, or have only a short-term transit, or connecting flight, through a foreign country on their return to the United States
  • Have been issued and possess an expired, undamaged passport that was originally valid for 10 years or, if 15 years of age or under when the passport was issued, the original validity must be for five years

Jackson Lewis attorneys are available to advise you on these new procedures. We wish you a happy new year!

The USCIS has started conducting in-person interviews for all employment-based adjustment of status (AOS) applicants whose applications were filed on or after March 6, 2017. The AOS will not be approved until after a “successful” interview.

Although there is no formal guidance as yet, there have been some reports on what to expect.

The Process

  • After review, the USCIS Service Centers will send cases to the National Benefits Center (NBC).
  • The NBC will get the case file into an “interview ready state” and generate the interview notice based upon availability at the appropriate local office.
  • The expectation is that interview notices will be sent at least 30 days in advance of the appointment.
  • The case file will be transferred from the NBC to the appropriate local office for the interview.
  • The NBC will try to schedule interviews for family groups together.
  • All dependents will be interviewed, although there may be a waiver for children under 14 years of age.

The Questions

The USCIS announced that “[c]onducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjustment process, and to determine the credibility of the individual seeking permanent residence in the United States.” Applicants can expect to have their credibility tested by the Field Officer regarding any information in their filings including:

  • Work Experience
  • Current Job
  • Educational Background
  • Potential grounds of inadmissibility
  • Maintenance of status
  • Job portability
  • Bona fides of the relationships between any dependents and the principal beneficiary

The subject of the interview is the AOS. In most cases the employer’s underlying I-140 (Immigrant Worker Petition) will have been approved prior to the interview and is not being adjudicated through the interview. However, where work experience or other employment-related facts on which the I-140 was based are called into question, local offices may return the I-140 to the appropriate Service Center for review.

Each applicant, including dependents, will receive their own interview notices. The notices will contain lists of documents to bring to the interview. These notices at least initially will be boilerplate but applicants should expect to be asked to bring the originals of all relevant civil documents, letters and degrees submitted as copies with the filing. Dependents should plan to bring evidence of the bona fides of their relationship with the primary beneficiary. The above-listed issues will impel the production of different types of documentation depending on the circumstances of individual cases. We encourage clients to contact their Jackson Lewis immigration counsel for guidance on appropriate documentation for the interview.

Because of the additional interview workload, delays are expected especially in San Jose, San Francisco, Newark, New York, Houston, Seattle, Chicago, Dallas, Atlanta and Los Angeles. Since the required medical examinations are only valid for one year, applicants may want to consult with their attorneys as to when and where to submit their medical examinations. Depending upon the rules at the time of filing, submission of the medical exams in response to a later agency request or at the interview may be both possible and preferable.

Attorney representation has always been allowed at adjustment of status interviews. Jackson Lewis attorneys have substantial experience preparing applicants for these interviews. Because AOS applications are fact-specific, each application should be reviewed and judged individually by an attorney to identify issues that may need to be addressed at the interview. Once an interview notice is received, please reach out to your Jackson Lewis attorney for an assessment and advice on what to bring and how to prepare.

USCIS spokesperson Carter Langston confirmed that as of October 1, 2017, the employment-based green card process will include an in-person interview.

Formal interviews have been a possibility for employment-based permanent residency applicants. However, for the last 10 years, employment-based green card applicants generally had the interview waived. Historically, in-person interviews were a sign of trouble, indicating additional evidence was needed to be vetted at the interview. Langston reported that this is “part of a comprehensive strategy to further improve the detection and prevention of fraud and security risks to the United States.” He further clarified that conducting in-person interviews will provide officers the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.

This increase in in-person interviews was part of President Donald Trump’s “extreme vetting” plan outlined his travel ban executive order.

Many employment-based green card applicants have already been in the U.S. for many years as non-immigrants, have been interviewed in-person for temporary visas at U.S. embassies or consulates abroad on numerous occasions, and have often been working for years for the same companies that ultimately have become their green card sponsors. Additionally, USCIS announced that family members of refugees or asylees will be required to have an in-person interview for provisional status. Reinstituting the interview requirements for employment-based applicants and adding requirements for refugees and asylees will amount to more than 100,000 additional applicants a year being interviewed at local USCIS offices. This undoubtedly will increase USCIS backlogs and lengthen the already years-long long process of obtaining a green card or entering as a refugee or asylee.

Jackson Lewis has experience and expertise in preparing clients for immigrant and non-immigrant interviews. If you have questions about the process, please let us know. We will continue to provide updates as more information becomes available about the new requirements.

USCIS is resuming the Cuban Family Reunification Parole (CFRP) Program beginning with already pending CFRP applications. This program started in 2007 and has been on hold for some time. It allows beneficiaries of approved Forms I-130, Petitions for Alien Relative, to come to the United States on parole while waiting for an available visa number.  The purpose of the program is to offer safe immigration pathways for those confronting humanitarian crises and alleviate the dangers associated with irregular immigration efforts for family members of U.S. citizens and legal permanent residents.

Under the CFRP, USCIS sends invitation letters to petitioners who are eligible for the program. Upon receipt of an invitation, parole forms and fees must be submitted. The last step is the scheduling of a consular interview in Havana. Upon arrival in the United States, beneficiaries are eligible to apply for work authorization. When the beneficiary’s immigrant visa becomes available or after one year of physical presence in the U.S., the beneficiary may apply for lawful permanent residence, if otherwise eligible.

At this time, USCIS is not issuing new invitations. The agency, however, has started to mail interview notices to petitioners with pending applications along with instructions for the beneficiary interviews. The Embassy in Havana was closed in 2017 and the USCIS field office in Havana was closed in 2018. Currently, there is limited interview capacity; however, on August 18, 2022, USCIS began conducting interviews.

USCIS is also sending general information about the program to petitioners with pending applications.  That information includes points that petitioners and beneficiaries should consider to determine whether they are still eligible for the program and how to proceed. These considerations include:

  • Has the beneficiary already applied for adjustment of status?
  • If the petitioner has naturalized, can the beneficiaries be considered immediate relatives for adjustment purposes?
  • Have any beneficiaries aged out?
  • Is immigrant visa processing an alternative?

USCIS has:

  • Recommended petitioners with pending CFRP applications for family members should ensure that USCIS and National Visa Center (NVC) both have their current address; and
  • Warned petitioners and beneficiaries to avoid scams explaining that the government agencies will not email or call to ask for money or payment or fees.

In June 2022, DHS announced that it would resume both the CFRP and the Haitian Family Reunification Parole (HFRP) Program. To date, the Haitian program has not resumed.

Jackson Lewis attorneys are available to advise regarding these family reunification programs.

U.S. Citizenship and Immigration Services (USCIS) is trying to approve as many employment-based green card applications as it can before the annual deadline of September 30, 2022 (the end of the fiscal year).

Primarily due to COVID-19 restrictions, approximately 140,000 family-based visa numbers went unused last fiscal year. As a result, these unused visa numbers were rolled over to this year’s employment-based visa number allocation; meaning, twice as many employment-based green cards are available this year.

USCIS and the Department of State (DOS) are primarily dealing with processing challenges and backlogs due to restraints imposed by the COVID-19 pandemic, as well as other issues.

What are USCIS and DOS doing in order to appropriately issue all available employment-based visas and hit the 280,000 limit this year? Among other things, the agencies are:

  • Prioritizing processing and adjudication of employment-based adjustment applications at all locations;
  • Prioritizing adjudication of immigrant visa petitions (I-140s) to focus on beneficiaries who are or will be current this year;
  • Providing overtime and supplemental USCIS staff to support the employment-based applications;
  • Initiating an aggressive hiring and training plan for new staff;
  • Waiving interviews and reusing biometrics, where possible;
  • Redistributing cases to match workloads with resources;
  • Establishing a dedicated mailing address for requests from those who wish to transfer their pending cases to a different employment-based category;
  • Encouraging applicants who know their Form I-693, Report of Medical Examination and Vaccination Records, are no longer valid to be prepared to submit a new medical as soon as they receive a Request for Evidence (RFE) (but not submit their I-693 before the RFE is issued);
  • Proactively identifying applications that lack valid medicals and issuing early RFEs; and
  • Temporarily waiving (until September 30, 2022) the requirement that the civil surgeon sign the Form I-693 no more than 60 days before the applicant files for adjustment of status.

DOS issued 19,799 immigrant visas and USCIS used 175,728 immigrant visas (through adjustment of status applications) for a total of 195,507 out of the available total of 262,288. Accordingly, 66,781 employment-based visas went unused. In comparison to this year, these respective agencies noted that, as of mid-June, they had used many more employment-based immigrant visas than they did at the same point in time last year, and they are continuing to adjudicate these respective applications at a higher rate than last year. According to USCIS, they are “well-positioned to use all the available employment-based immigrant visas in FY 2022 ….”

If you have any questions about pending green card matters, please reach out to your Jackson Lewis attorney.

USCIS has changed its mission statement again – this time to adopt a more immigration-friendly stance.

In 2018, USCIS, under the Trump Administration, changed its mission statement to align with President Donald Trump’s focus on enforcement, strict scrutiny, and extreme vetting. The statement did not emphasize customer satisfaction, i.e., the satisfaction of petitioners, applicants, and beneficiaries. The change in emphasis was stark and did not go unnoticed. Instead, the mission statement focused on protecting and serving the American people and ensuring that benefits were not provided to those who did not qualify or those who “would do us harm ….” The 2018 statement did not speak of the United States as a “nation of migrants” and it focused on efficiency while “protecting Americans, securing the homeland, and honoring our values.”

The new 2022 USCIS mission statement reflects President Joe Biden’s belief that “new Americans fuel our economy as innovators and job creators, working in every American industry, and contributing to our arts, culture, and government.” Accordingly, he has issued executive orders directing the various immigration agencies to reduce unnecessary barriers to immigration. The 2022 mission statement also reflects President Biden’s directions and USCIS Director Ur M. Jaddou’s “vision for an inclusive and accessible agency.” Director Jaddou “is committed to ensuring that the immigration system . . . is accessible and humane . . . [serving] the public with respect and fairness, and lead with integrity to reflect America’s promise as a nation of welcome and possibility today and for generations to come.”

According to Director Jaddou, USCIS will strive to achieve the core values of treating applicants with integrity, dignity, and respect and using innovation to provide world-class service while vigilantly strengthening and enhancing security. On February 3, 2022, Director Jaddou, along with her deputies, briefed the nation on the agency’s efforts to improve service at USCIS. The leaders of the agency made clear that USCIS knows it must continue to eliminate backlogs, cut processing times, reduce unneeded Requests for Evidence and interviews, eliminate inequities in processing times across service centers and improve the contact center, among other things, to achieve its goals. Using streamlining and technological innovation, USCIS hopes to make itself much more consumer-oriented.

The restrictions on the issuance of H-1B, L-1, and J-1 nonimmigrant “guest-worker” visas, which have been in place since June 24, 2020, expired without fanfare on March 31, 2021. As a result, U.S. consulates around the world will resume issuing H-1B, L-1, and J-1 visas without the need for an additional national interest exception application.

Now that the restriction has expired, H, L, and J visa applicants who have or had not been scheduled for interviews will be scheduled in accordance with each consulate’s existing phased resumption of services. Those who were refused visas based on the expired restrictions may reapply by submitting a new application and a new fee.

The expiration was not completely unexpected, given that a limited injunction had been issued in the fall of 2020 on the basis that the restrictions exceeded presidential authority. Additionally, many businesses, particularly those in the technology industry, have long-argued that the restrictions did not protect U.S. workers, but, instead, harmed the U.S. economy.

While the lifting of this particular restriction is helpful, the 14-day United Kingdom, Ireland, Schengen area, Brazil, South Africa, Iran, and China travel bans remain in place. Most of those travel bans, which are an effort to control the spread of COVID-19, were tightened in early March 2021. At that time, the Biden administration removed a number of categorial exceptions to the bans and left only exceptions for those who seek to enter the United States for humanitarian purposes, public health response, national security, or “vital support” for critical infrastructure sectors.

This is the fourth Trump administration travel ban that the Biden administration has removed. On January 20, 2021, the “Muslim” and “Africa” bans were terminated. In February, President Joe Biden also withdrew a Presidential Proclamation that prevented individuals from obtaining immigrant visas and entering the country as legal permanent residents, as it prevented the unification of family members and made it more difficult for industries to hire talent from abroad. At that time, many immigration advocates hoped the nonimmigrant visa restrictions would also be removed. Now, that has come to pass.

Jackson Lewis attorneys are available to assist you in determining how to continue to cope with the 14-day bans, COVID-19 test requirements for travel into the United States, and the reciprocal land port of entry travel bans at the Northern and Southern borders with Canada and Mexico.

USCIS may be close to negotiating an agreement that would mean EADs for thousands of foreign nationals with approved applications will finally start to be produced.

Yet, first-time EAD applicants who are in H-4 or L-2 status may still face impediments. In March, when the COVID-19 crisis began and USCIS offices closed, the Application Support Centers (ACS) had to reschedule biometrics appointments. The biometrics appointment is essential and a precondition to USCIS issuing a final determination. Although USCIS agreed to reuse previously submitted biometrics to expedite processing, first-time applicants (or applicants who were not previously required to submit biometrics) had no recourse but to wait.

When ASCs started to reopen in June, individuals with appointments were subject to COVID-19 precautions, including face coverings (which may be removed for identification or photographing purposes) and social distancing. These limitations have resulted in ASCs limiting the number of daily appointments. It appears that some individuals have been told that appointments will not be available until October.

It is reported that during a three-week period, starting in mid-July, ASCs completed approximately 74,000 biometrics appointments. But on an average day pre-COVID-19, 14,000 were photographed and fingerprinted across all the field offices and ASCs. So, the backlog continues and the possibility that USCIS may furlough two-thirds of its workforce by the end of August will only exacerbate the problem.

Those who do get appointments for biometrics, interviews, or naturalization ceremonies must remember to comply with the current USCIS Visitor Policy:

  • Wear face coverings;
  • Follow signage related to social distancing;
  • Be aware that USCIS is placing specific limits on those who can accompany applicants with scheduled appointments; and
  • Do not bring or invite guests to naturalization ceremonies.

Individuals will not be allowed to enter a USCIS office if they:

  • Are experiencing symptoms of COVID-19;
  • Have had close contact within the last 14 days with a person known or suspected to have COVID-19;
  • Have been instructed by a healthcare provider to public health authority to isolate or self-quarantine with the last 14 days; or
  • Refuse to wear a face covering in accordance with USCIS policy.

USCIS asks anyone who feels sick to reschedule their appointments.

If you have any questions regarding these regulations, please reach out to your Jackson Lewis attorney. We are available to assist you in interpreting the rules and advising on how to proceed.

New USCIS filing fees will go into effect on October 2, 2020, under a new final rule published by the Department of Homeland Security (DHS) in the Federal Register on August 3, 2020. This rule raises fees by a weighted average of 20% and changes the current fee structure to impose specific fees per visa category.

USCIS, a fee-based agency, has stated the increase in fees was required to avoid a DHS projected deficit of $1 billion per year. Some fees will decrease, but others will increase dramatically – such as a more than 80% increase for citizenship applications. Other larger percentage increases include popular business-related petitions:

  • 51% increase for TN and E petitions to $695
  • 75% increase for L petitions to $805
  • 53% increase for O petitions to $705
  • 34% increase for I-765 Employment Authorization Documents to $550 (excluding DACA)

Employers whose workforce is comprised of at least 50% H-1B or L-1 workers will see even bigger increases. Already paying an additional $4,000 for a new H-1B visa and an additional $4,500 for a new L-1 visa, those companies will be required to pay the additional fees for renewals as well. It is reported that this alone will bring in $200 million per year in fees to USCIS.

Employers filing H-2A and H-2B petitions for temporary, seasonal agricultural and non-agricultural workers also will see an increase, from $460 to $850 (85%) and $715 (55%), respectively. This comes despite the Administration’s recognition of the essential nature of workers involved in the food supply chain during the COVID-19 pandemic national emergency.

The USCIS Premium Processing fee, which brought in $2.39 billion in fees to USCIS between 2014 and 2019, will not increase, but the processing time has changed from 15 calendar days to 15 business days, up from two weeks to three weeks.

Comments on the new rule include a suggestion that USCIS increase its own efficiency instead of “charging more and providing less service.” Others noted the Administration’s own policy failings created the need for increased fees, citing the following as areas of concern:

  • Frivolous Requests for Evidence
  • “Extreme vetting”
  • Long suspensions of premium processing
  • Unnecessary in-person interviews
  • Increased denaturalization efforts
  • Litigation of improperly denied applications

In addition, commentators complained of the negative impact the increased fees would have on potential immigrants, the businesses that need to employ them, and the economy. To these and other comments submitted, DHS responded that it understands immigrants make significant contributions to the United States economy, but this final rule is not intended to impede or limit naturalization or legal immigration. Other commentators suggest the Administration’s policies have already impeded immigration and fee increases are not likely to help alleviate that.

USCIS also plans to publish updated forms before the new fees go into effect, including a new Form I-129 and a new Form I-765.

If you have any questions about the new fees or the new forms, please reach out to your Jackson Lewis attorney.

 

 

USCIS confirmed that its planned furlough of 70% of its workforce (13,400 employees) will be postponed at least until the end of August. The ostensible reason for the furlough was a budget shortfall, even though USCIS is a fee-based service that historically has covered costs.

The furlough announcement, when coupled with the anti-immigration agenda from the White House, caused some to question the claim that USCIS had of a $571-million deficit for FY 2020. Agency and indeed recent reports show that USCIS will end the fiscal year with a budget surplus large enough to keep employees on the payroll for now. In the meantime, Congress will have to time to act to provide emergency relief for FY 2021. As of July 10, 2020, the surplus was reportedly $121 million.

Senators Patrick Leahy (D-Vt.) and John Tester (D-Mont.) wrote to Acting Secretary of Homeland Security, Chad F. Wolf, when they learned of the surplus, which was in “stark contrast” to the previous deficit prediction. The Senators implored the agency not to put more American jobs “on the line” at this time of “unprecedented unemployment.” They made it plain that it was not just the employees who would be harmed.

[T]housands of United States Citizens, employers, and students rely on USCIS work, including members of the military. The loss of these valuable jobs will also cause hardship to the communities where these federal workers live and work – communities already struggling with the pandemic.

The USCIS Deputy Director for Policy, Joseph Edlow, stated that the changed forecast, occurring after an investigation, is due to increased revenue over the past few weeks. This revenue could be the result of Cap H-1B filings and the opening up of premium processing. At the end of March, USCIS suspended premium processing. On June 1, 2020, the agency slowly started resuming it. By June 22, 2020, premium processing became available for all I-129 petitions, including cap-subject petitions. At $1,440 for each petition, this resumption could account, at least partly, for the increased USCIS revenues. Given the current processing delays and the pent-up demand for premium processing, an increase in revenue could have been expected – and the fear of an almost-total halt in immigration processing alleviated.

USCIS union members (members of the American Federation for Government Employees) speaking to reporters explained that while the pandemic has decreased petitions, the agency has been crippled by “previous policy decisions that have restricted legal immigration.” In 2018, there was 17% decrease in petitions and applications. Since then, the public charge rule and increases in vetting, denials, requests for evidence, interviews, delays, and backlogs have led individuals and companies to file fewer petitions and applications. For some companies, it has become easier and more predictable to move jobs out of the United States into more welcoming environments. The impact of such a move is the opposite of what is needed in the U.S. economy’s recovery.

Senator Leahy expects to address the USCIS’ 2021 deficit with the next COVID-19 relief package.

If you have any questions, please contact a Jackson Lewis attorney.