USCIS Updates Visitor Policy for Vaccinated Individuals

USCIS announced a change to the visitor policy to align more closely with Centers for Disease Control (CDC) guidance. If you are fully vaccinated, USCIS states that you may enter the office without a face covering. Full vaccinated is defined as an individual at least two weeks past the receipt of the second dose in a two-dose series or at least two weeks after receiving a single-dose vaccine. If a location is controlled by DHS, the announcement states that the guidance supersedes state, local, tribal, or territorial rules and regulations regarding face coverings.

The announcement also states that all applicants, petitioners, and visitors two years or older who are not fully vaccinated to wear face coverings that cover the mouth and nose while in USCIS offices. Face coverings must follow CDC guidance and USCIS states that neck gaiters, bandanas, or masks with exhaust valves are not approved face coverings. While a replacement mask may be available, USCIS could also ask you to reschedule your appointment and reserves the right to deny entry to anyone who is not wearing an acceptable face covering. USCIS also notes that social distancing measures and limits on the number of people in the waiting room are still in place. You may also be directed to remove your face covering briefly so that USCIS personnel can confirm your identity or take your photograph.

Individuals with appointments may only be accompanied by an attorney, interpreter (if permitted), parent, legal guardian, or trusted adult (if applicant is a minor), immediate family members listed as dependents on the application or interview notice, and an individual assisting a disabled person. Guests are also not permitted at naturalization ceremonies (with the exception of individuals helping disabled persons). Face coverings are required during the ceremony for individuals who are not fully vaccinated, even if the ceremony is held outside.

USCIS offices continue to follow additional COVID-19 protocols, such as hand sanitizer at the entrance, markings and barriers in the office to promote social distancing, and health screening questions. Individuals are encouraged to bring their own black or blue ink pens. Individuals may not enter the USCIS facility more than 15 minutes before their scheduled appointment time, or 30 minutes before naturalization ceremonies.

  • You may not enter a USCIS facility if you:
    • Have any symptoms of COVID-19, including a recently developed cough, fever, difficulty breathing, new loss of smell or taste, fatigue, muscle aches, headache, congestion, sore throat, or vomiting (list is not all-inclusive);
    • Have been in close contact (within six feet for a total of 15 minutes or more) with anyone known to have COVID-19 in the last 14 days (unless you are fully vaccinated or you are a health care worker and consistently wear an N95 respirator and proper PPE or equivalent when in contact with COVID-19 positive individuals);
      • DEFINITION: Fully vaccinated is at least two weeks from receipt of the second dose in a two-dose series or at least two weeks from receipt of a single-dose vaccine
    • Have returned from domestic air, international air or cruise ship travel in the past 10 days (unless you are fully vaccinated);
    • Have been instructed to self-quarantine or self-isolate by a health care provider, public health authority or government agency within the last 14 days; or
    • Refuse to wear a face covering or mask in accordance with USCIS policy (unless you are fully vaccinated).

While not outlined in the USCIS announcement or COVID-19 guidance, it is possible that field offices could ask for proof of vaccination if you arrive without a face covering. To prevent delays or rescheduling of your appointment, please be prepared with an appropriate face covering, as well as proof of vaccination.

To reschedule your appointment, call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833). To reschedule your appointment with an asylum office, please follow the instructions in your interview notice.

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

 

Read More

DOS Announces Change in Citizenship Policy for Some Children Born Abroad Via Surrogacy and Assisted Reproductive Technology

DOS Announces Change in Citizenship Policy for Some Children Born Abroad Via Surrogacy and Assisted Reproductive Technology

The Department of State announced that it was updating its policies for the acquisition of U.S. citizenship at birth to recognize the advances in assisted reproductive technology (ART) and surrogacy. In the announcement, the spokesperson stated “This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952.”

Children born abroad to parents who are married and at least one of whom is a U.S. citizen, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet all other legal requirements. Previously, DOS interpreted Section 301 of the Immigration and Nationality Act (INA) to limit citizenship to children born abroad that have a genetic or gestational relationship to the U.S. citizen parent. This prevented some same-sex couples from transmitting U.S. citizenship to children born overseas because the Department of State interpreted the birth as being “out of wedlock” for immigration purposes. A number of same-sex couples have sued the Department of State over the previous surrogacy policy.

The policy change is effective immediately and the DOS expects that it “will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA.” In the announcement, the DOS also noted requirements for children born to unmarried parents remain unchanged.

Department of State Frequently Asked Questions

1.  Will My Child Acquire U.S. Citizenship at Birth?

The U.S. Department of State determines whether a child born abroad to a U.S. citizen parent acquired U.S. citizenship at birth.

A child born abroad acquires U.S. citizenship at birth if the parent or parents of the child meet the conditions prescribed in the Immigration and Nationality Act (INA).

The U.S. Department of State interprets the INA to mean that a child born abroad must be genetically or gestationally related to a U.S. citizen parent or to a non-U.S. citizen parent who is married to a U.S. citizen parent at the time of the child’s birth. The parent must meet the following statutory transmission requirements of INA 301 or 309 in order for the child to acquire U.S. citizenship at birth:

  • A U.S. citizen father who is the genetic father of the child may transmit citizenship to the child if he meets all other statutory requirements in order to transmit U.S. citizenship to the child at birth.
  • A U.S. citizen mother who is the genetic or the gestational and legal mother of the child may transmit U.S. citizenship to the child if she meets all other statutory requirements in order to transmit U.S. citizenship to the child at birth. A gestational mother is the woman who carries and gives birth to the child.
  • A U.S. citizen parent who is not genetically or gestationally related to the child may transmit citizenship to the child if they are, at the time of the child’s birth, married to a parent who has a genetic or gestational connection to the child. They must also meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth.

DNA testing is often the best way to establish a genetic relationship after the child is born.

In addition to establishing a genetic or gestational relationship to the child, U.S. citizen parents must also establish that other citizenship transmission requirements have been met, such as having had certain periods of physical presence or a residence in the United States prior to the birth of the child. For more information about specific requirements, visit INA Sections 301 and 309.

If a child born overseas to a surrogate is not genetically or gestationally related to a U.S. citizen parent or a spouse of a U.S. citizen, we will not consider the child to have automatically acquired U.S. citizenship at birth based upon INA Sections 301 and 309.

We can only determine the U.S. citizenship status of a child born abroad after the child is born and in association with an application for a U.S. passport or Consular Report of Birth Abroad (CRBA).

2. What Type of Evidence or Documentation May Be Required to Establish My Child’s Claim to U.S. Citizenship?

A U.S. citizen parent who has a child overseas, including via a foreign surrogate mother, may apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) or a U.S. passport for the child at the U.S. embassy or consulate in the country where the child was born.

To learn which documents you must submit, consult your nearest U.S. embassy or consulate. Parents must provide evidence of the child’s identity, birth, and citizenship. In an ART case, the parents may be requested to provide medical and documentary evidence of the child’s conception and birth and other evidence to demonstrate their genetic or gestational connection to their child. Parents may also need to provide evidence of their identity, citizenship, physical presence, or residence in the United States, and legal status as the child’s parent under local law.

Parents may also arrange for DNA tests of the child, using approved labs and procedures as described in our Information Sheet for Parents on U.S. Citizenship and DNA Testing.

3. Will I Be Able to Obtain a Travel Document for My Child?

If your child under age 16 is a U.S. citizen, you may apply for the child’s U.S. passport. Both legal parents must authorize issuance of the passport except in limited circumstances where one parent cannot appear in person. If, under local law, a surrogate mother is the legal mother of a child born through ART, then the surrogate mother would need to consent to passport issuance unless one of the exceptions to the two-parent consent requirement apply.

Foreign Country Passports: In some countries, a child will not acquire the citizenship of the country where they were born because the surrogate mother is not considered the parent of the child.  As a result, the child may not be entitled to a passport from the country in which they were born.

4. Will I Be Able to List Myself or My Partner As A Parent on My Child’s Consular Report of Birth Abroad  (CRBA)?

CRBAs are issued to both U.S. citizens and non-citizen nationals, and they document that a child was a U.S. citizen at birth. A CRBA neither serves as proof of the child’s legal parents nor is it intended to serve as proof. In general, the name or names listed on the CRBA are the U.S. citizen or national’s parent(s) with a genetic or gestational connection to the child.  The name of the parent(s) through whom the child’s claim to U.S. citizenship is made must be listed on the CRBA. A parent who is not transmitting U.S. citizenship may be listed on the CRBA with consent of the parent who is transmitting U.S. citizenship.

5. Other Important Issues to Consider

  • Entering the United States

If your child did not acquire U.S. citizenship at birth and therefore cannot be issued a U.S. passport or otherwise documented as a U.S. citizen, you may encounter difficulty when attempting to enter the United States with your child. Please consult with your nearest U.S. embassy or consulate on appropriate travel documentation for travel to the United States.

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

 

Read More

Is the International Entrepreneur Rule Right for Your U.S. Expansion?

Is the International Entrepreneur Rule Right for Your U.S. Expansion?

USCIS (U.S. Citizenship and Immigration Services) recently announced that the International Entrepreneur Rule would not be withdrawn as it was discussed during the Trump administration. The rule allows certain international entrepreneurs temporary parole in the U.S. to start-up or scale their businesses. Each entrepreneur would be granted parole on a case-by-case basis and the rule is particularly geared towards start-up entities whose founding entrepreneurs’ entry into the U.S. would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Initial parole can be granted for up to 30 months (2.5 years).

Are you looking to bring your new business idea to the United States? Entrepreneurs must meet several criteria before being granted temporary entry and must also meet eligibility criteria in order to obtain an extension.

International Entrepreneur Eligibility

In order to prove that a start-up entity would “provide a significant public benefit” and has “potential for rapid growth and job creation” DHS will evaluate entrepreneurs on the following criteria:

  • 1) The new start-up entity must be recently formed

The entity must be recently formed in the U.S. and has lawfully done business since its creation. It will be considered recently formed if created within the five years preceding the date of the filing of the initial parole application.

  • 2) The applicant is an entrepreneur

The applicant for parole must be an entrepreneur of the entity who is positioned to advance the entity’s business. The applicant can demonstrate satisfaction of the standard by providing evidence that he or she possesses a significant ownership interest in the entity (at least 10%) and has an active and central role in the operations and future growth of the entity. DHS states that this role would be one “such that his or her knowledge, skills, or experience would substantially assist the entity in conducting and growing its business in the United States.” It is important to note that the applicant cannot be a mere investor.

  • 3) The entity has significant U.S. capital investment or government funding.

This funding can come from several sources: established U.S. investors, government grants, or in limited cases, alternative criteria. If capital investments come from U.S. investors, they must have established records of successful investments, such as venture capital firms, angel investors, or start-up accelerators. Applicants can meet this standard by proving investments of $250,000 or more from these historically successful investors, within the 18 months immediately preceding the filing for initial parole. Grants from Federal, State, or local government entities with expertise in economic development, research and development, and/or job creation totaling $100,000 or more can also meet the qualifying standards. Alternative criteria may be considered for applicants who partially meet one of the sub-criteria for investment if he or she can also provide additional evidence that his or her entry would provide a significant public benefit to the U.S.

Extensions of Parole

Entrepreneurs can request an additional period of parole if they can demonstrate:

  • 1) The start-up entity continues to operate lawfully in the U.S.

The business must also continue to have substantial potential for rapid growth and job creation.

  • 2) The applicant continues to be an entrepreneur and well-positioned to advance the business.

The applicant must continue to possess at least a 5 percent ownership interest and continue to have an active role to grow the business. The reduced ownership amount allows start-up entities to raise additional venture capital investment during their initial years of operation.

  • 3) The business has generated significant U.S. investment, revenue, and/or job creation.

The applicant must provide evidence of the continued potential for rapid growth and job creation, through additional investments or grants (at least $500,000 in additional funding during the initial parole period), revenue generation (at least $500,000 in annual revenue, with average growth of at least 20 percent during the initial parole period), and job creation (at least 5 full-time jobs for U.S. workers during the initial parole period).

Alternatively, the applicant may partially meet one or more of the above criteria may be considered for re-parole if he or she can provide additional evidence that parole will continue to provide a significant public benefit and that entity has the substantial potential for rapid growth and job creation.

Future of the International Entrepreneur Rule

The Department of Homeland Security believes this rule will “encourage foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States, which are expected to facilitate research and development in the country, create jobs for U.S. workers, and otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.”

Qualifying entrepreneurs will be granted entry into the U.S. for a 30-month (2.5 years) temporary period, but may be eligible for an additional 30-month extension if they can demonstrate the start-up entities have shown signs of growth and continue to have “substantial potential for rapid growth and job creation.” The final rule states that no more than three entrepreneurs may receive parole for any one qualifying entity.

What happens when you have reached the 5-year limit?

The rule states that when the parole period has expired, the entrepreneur and any dependents granted parole under the program will be required to depart unless they are otherwise eligible to lawfully remain in the U.S. The rule states that “individuals may apply for any immigrant or nonimmigrant classification for which they may be eligible.” However, DHS also notes that parole is not considered an admission to the U.S., so parolees are ineligible to adjust or change status under many immigrant or nonimmigrant visa classifications. This does not prevent an individual from applying for the immigrant or nonimmigrant visa, but they would need to depart the U.S. and apply for a visa with the Department of State for admission to the U.S. in the new visa classification.

Are you considering expanding your business or pursuing entrepreneurship in the U.S.? Schedule a consultation with one of our attorneys to discuss all of the available pathways for your professional and immigration goals. Email us at info@challalaw.com to request an appointment.

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

Read More

India Travel Restrictions & Resources

Restrictions on Travel From India

Effective May 4, 2021, India was added to a list of countries with restrictions on entry to the United States. Other countries with restrictions include Brazil, China, Iran, Ireland, Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland), United Kingdom, and South Africa. Certain travelers physically present in these countries during the 14 days prior to their planned or attempted U.S. entry, are restricted from entering the U.S. The proclamation notes that India accounts for over one-third of new global cases and a variant strain is circulating throughout the country. The proclamation also stated that the CDC determined the variants have “characteristics of concern, which may make them more easily transmitted and have the potential for reduced protection afforded by some vaccines.”

Exceptions

Immigrants, U.S. citizens, and lawful permanent residents (LPRs) are not subject to the India travel ban proclamation. Other exceptions include:

  • Spouses of U.S. citizens or lawful permanent residents
  • Parents or legal guardians of U.S. citizen or lawful permanent resident (if the child is unmarried and under the age of 21)
  • Siblings of U.S. citizens or lawful permanent resident (if they are both unmarried and under the age of 21)
  • Children, foster children, or wards of U.S. citizens or lawful permanent residents
  • Prospective adoptees seeking to enter U.S. under IR-4 or IH-4 visa classifications
  • C-1, D, C-D crewmembers as air or sea crew
  • Noncitizens traveling at the invitation of the U.S. government related to the containment or mitigation of the virus
  • Members of U.S. Armed Forces and their spouses and children
  • A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), E-1 (as an employee of TECRO or TECO or the employee’s immediate family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 (or seeking to enter as a nonimmigrant in one of those NATO categories) or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement

National Interest Exceptions

The proclamation also gives authority to the Secretary of State, the Secretary of Homeland Security, or their designees to determine categories of noncitizens

  • Immigrants (not applicable to the restrictions under Proclamation 10199, which only covers nonimmigrant travel)
  • Fiancé(e)s
  • Students and certain academics covered by exchange visitor programs. Students subject to these geographic COVID proclamations due to their presence in India, China, Iran, Brazil, or South Africa may qualify for a National Interest Exception only if their academic program, including optional practical training (OPT), begins August 1, 2021, or later. Students with valid F-1 and M-1 visas intending to begin or continue an academic program, including OPT, beginning August 1, 2021, or later do not need to contact an embassy or consulate to seek an individual National Interest Exception to travel. They may enter the United States no earlier than 30 days before the start of their academic studies. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
  • Travelers who are seeking to provide vital support for critical infrastructure sectors or directly linked supply chains.
  • Journalists
  • Pilots and aircrew traveling to the United States for training or aircraft pickup, delivery, or maintenance, including individuals who are traveling to the United States on B-1/B-2, B-1, or M-1 visas, or Visa Waiver Program authorizations. This also includes certain M-2 dependents when the principal visa holder’s necessary training is four weeks or longer
  • Certain exchange visitors, including some au pairs, specialized teachers, travel in support of critical foreign policy objectives, etc.
  • Derivative family members accompanying or following to join a noncitizen who has been granted, would be reasonably expected to receive an NIE, or is otherwise not subject to the proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more
  • Travelers seeking to enter the U.S. for purposes related to humanitarian travel, public health response, and national security.

International Travel Tips

The Department of State advises “Travelers in these categories who wish to visit the United States and have a valid visa in the appropriate class, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling.” The DOS website also notes that the Secretary of State may revise the national interest determinations at any time.

  1. Limit nonessential international travel and consider postponing essential travel. 
  2. If you absolutely must travel, check COVID-19 testing and quarantine requirements for each country on your itinerary. The U.S. requires a negative COVID-19 test within the 3 days prior to their inbound flight, but many countries require mandatory quarantines or prohibit entry if you have traveled through certain countries with restrictions.
  3. Check appointment availability and/or schedule your visa stamping appointment prior to departure. You should also consider the conditions where you are traveling. Some consulates and embassies can close or cancel appointments with no advance notice.
  4. Prepare for extended leave from the United States. Closures, additional travel restrictions, or lack of visa appointments could delay your return to the U.S. When you depart, consider that you could be stranded abroad for several months if conditions are unfavorable.
  5. Check the U.S. Embassy website for the latest COVID-19 information in India.

Many consulates are reporting no appointments available before October or November of this year. Some individuals whose appointments were scheduled for this spring now have additional scheduling delays of several months. If your request for an emergency appointment is rejected, you cannot attempt the request again, so be sure that the evidence you provide fully demonstrates your eligibility.

Already Have a Valid Visa? 

The travel ban is a suspension of entry if you have been physically present in one of the affected countries in the past 14 days. If you have a valid visa and the ability to travel to a country not on the list and quarantine for 14 days, you would still be able to enter the U.S. on your valid visa. You would still have to comply with any local restrictions in the third country, as well as COVID-19 testing requirements for U.S. entry, so be sure to check that testing is widely available in the third country. You should also maintain careful records of your flights and accommodations to demonstrate you have not been in the affected countries in the 14 days prior to your entry or attempted entry into the U.S.

Don’t Have a Valid Visa and Need Visa Stamping?

Most consular posts have explicitly stated that visas will not be issued and/or appointments will not be scheduled unless the applicant also qualifies for a National Interest Exception. Each post has a different process for obtaining approval for the NIE, so check the consulate’s website to confirm the latest procedures. Since regular appointments are not readily available, you may also be required to prove your eligibility for an emergency appointment. If you qualify for a drop box appointment, you must still provide evidence of your NIE eligibility.

Related Topics & Resources:

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

Read More

USCIS Announces International Entrepreneur Program Will Remain

In a departure from the previous administration’s stance, USCIS announced that it would withdraw a rule that would have removed the International Entrepreneur program. While the IE parole program was never officially discontinued, it remained an uncertain option after the Trump administration first announced it would delay implementation and then signaled that the program would end.

USCIS: Program Will Provide Opportunities for Foreign Entrepreneurs

WASHINGTON—U.S. Citizenship and Immigration Services announced today that the Department of Homeland Security is withdrawing a 2018 notice of proposed rulemaking that proposed to remove the International Entrepreneur program from DHS regulations. The International Entrepreneur (IE) parole program, first introduced in 2017, will remain a viable program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States. The program will help to strengthen and grow our nation’s economy through increased capital spending, innovation, and job creation.

Today’s announcement is consistent with President Biden’s Executive Order 14012: “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” The executive order requires the secretary of homeland security to “identify any agency actions that fail to promote access to the legal immigration system.”

“Immigrants in the United States have a long history of entrepreneurship, hard work, and creativity, and their contributions to this nation are incredibly valuable,” said Acting USCIS Director Tracy Renaud. “The International Entrepreneur parole program goes hand-in-hand with our nation’s spirit of welcoming entrepreneurship and USCIS encourages those who are eligible to take advantage of the program.”

The initial IE final rule was published on Jan. 17, 2017, and was scheduled to take effect on July 17, 2017. This final rule guided DHS in the use of its parole authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation.

Prior to the effective date, DHS published a final rule to delay the implementation date of the IE final rule to March 14, 2018. This allowed DHS additional time to draft and seek public comments on a proposal to rescind the IE final rule. However, in December 2017, a federal court vacated the delay, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE final rule. Since then, the program has been up and running, and USCIS continues to accept and adjudicate applications consistent with existing DHS regulations.

Under the IE program, parole may be granted to up to three entrepreneurs per start-up entity, as well as their spouses and children. Entrepreneurs granted parole are eligible to work only for their start-up business. Their spouses may apply for employment authorization in the United States, but their children are not eligible for such authorization based on this parole. Additional information on eligibility and how to apply is available on the International Entrepreneur Parole page. USCIS will plan information sessions and other outreach activities to ensure foreign entrepreneurs are aware of this opportunity and how to pursue it.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook and LinkedIn.

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

Read More

USCIS Plans to Suspend Biometrics for H-4 & L-2 Applicants

24-Month Biometrics Suspension Proposed for May 17, 2021

In March, the American Immigration Lawyers Association (AILA) with a partner law firm, filed a class action complaint with the U.S. District Court Western District of Washington, alleging that: “More than 91,000 people have lost their jobs because the Department of Homeland Security has not done its job.” The complaint questions USCIS delays in processing extensions of status and employment authorization documents (EAD) for H-4 and L-2 nonimmigrant spouses of H-1B and L-1 visa holders, respectively. The complaint cites multiple H-4 and L-2 spouses who have lost their jobs because of biometrics appointment delays and processing delays.

As part of the ongoing litigation, USCIS submitted a declaration in Edakunni v. Mayorkas litigation, announcing a plan to suspend biometrics requirements for certain I-539 applicants for two years. The 24-month suspension is proposed to begin May 17, 2021, and last through May 23, 2022, unless extended by USCIS. The agency has not made any official announcements of this change in policy.

On May 4, 2021, the Acting Associate Director of Service Center Operations for USCIS, Connie Nolan, submitted a declaration stating:

  • Recently, USCIS has undertaken a variety of adjudicative actions to aggressively address the backlog. Service centers currently have approximately 120 officers adjudicating Form I-539 for the H-4 and L-2 classifications with another 33 officers scheduled for training in May 2021. In the past 60 days, service centers completed approximately 25,000 related to H-4 and L-2 spouses.
  • Additionally, USCIS is finalizing a policy that will temporarily suspend biometrics submission requirements for individuals filing Form I-539 to request an extension of stay in or change of status to H-4, L-2 and certain E nonimmigrants due to the extended processing times resulting from limited ASC capacity due to ongoing COVID-19 health and safety protocols.
  • Expected to begin on May 17, 2021, the new policy suspending biometrics submission requirements for the H-4, L-2 and E nonimmigrants is intended to be in effect for 24 months, and is intended to automatically expire after May 17, 2023, subject to affirmative extension or revocation by the USCIS Director.
  • The suspension of biometrics is intended to apply only to H-4, L-2 and E-1, E-2 and E-3 categories of Form I-539 applications that are pending as of the effective date of the policy and have not yet received a biometric services appointment notice, and new applications received by USCIS after the effective date of the policy through the stated expiration date, subject to affirmative extension or revocation by the USCIS Director.
  • USCIS will retain discretion on a case-by-case basis to require biometrics, and any applicant may be scheduled for an ASC appointment to submit biometrics for identity verification and other screening purposes.

Extension Filing Tips

We could see processing times speed up once biometrics appointments are no longer required across the board. EADs could be issued faster not only for dependent spouses but for I-485 applicants who are also competing for biometrics appointments at the USCIS Application Support Centers. It may take a few months for USCIS to address the existing appointment backlogs. In the meantime, here are some tips for filing your extension:

  • File your extension as soon as you are statutorily eligible to do so.
  • If you receive multiple biometrics appointment notices, attend the earliest and bring all appointment notices with you.
  • If you are filing your H-4 or L-2 extension, please continue to include biometrics fees until USCIS makes a formal announcement of the policy change and its effective date.
  • Plan to attend all scheduled biometrics appointments, unless directed not to by USCIS and your legal representative. If you miss a scheduled appointment, your case could be denied.
  • If you receive a biometrics appointment after the proposed May 17 effective date, plan to attend the appointment. USCIS states it retains the discretion to require biometrics for any case.

Additional Biometrics Update

The Department of Homeland Security has withdrawn a proposed rule that would have expanded department authorities and requirements for collecting biometrics by removing age restrictions; requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waives or exempts the biometrics requirement; codifying the authority to use DNA test results; and authorizing the use of additional types of biometric modalities.

DHS announced its decision to withdraw the proposed rule, originally published on Sept. 11, 2020, in a Federal Register notice. The withdrawal is consistent with Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, and additional administration priorities to reduce barriers and undue burdens in the immigration system.

Connecting with Challa Law Group

Join us on Wednesdays for a live webinar at 12 PM ET on critical immigration updates

Don’t miss out on the immigration news! You can sign up for our mailing list or follow us on FacebookTwitterInstagramYouTube, or LinkedIn. You can also join our Telegram community.

Contact us at info@challalaw.com or 804-360-8482 to get your case started today.

Read More