Yearly Archives: 2021

DOS Announces Student Interviews May Be Waived

The Department of State announced that F, M, and academic J visa applicants (students, professors, research scholars, short-term scholars, or specialists) may be eligible to have their applications adjudicated without an in-person interview at a consular post. While each embassy or consulate will have its own procedures for waiving the interviews, applicants may have to obtain drop box appointments for visa stamping. As a reminder, students qualified for an F-1 or M-1 visa will automatically be considered for an NIE, or National Interest Exception, to travel to the U.S., despite the ongoing travel bans applicable to travel from 33 countries.

Challa Law Resources:

• India Travel Restrictions & Resources
• Interview Waiver Checklist: Are You Eligible for a Drop Box Appointment?

September 14, 2021 Update from the Department of State

Petitioners and attorneys: check your USCIS accounts! USCIS announced a second round of selections for the FY 2022 H-1B lottery. Petitioners can file H-1B petitions for the selected registrations beginning on August 2, 2021 and closing on November 3, 2021.

UPDATE 7/29/2021: USCIS is experiencing technical difficulties with attorney accounts, making the attorneys unable to check the status of the H-1B registrations. Some law firms have reported that USCIS accounts are still accessible to employers. If an additional selection was made, the employer would also have received an email notification from USCIS.

From USCIS

In March 2021, USCIS conducted an initial random selection on properly submitted electronic registrations for the fiscal year (FY) 2022 H-1B cap, including for beneficiaries eligible for the advanced degree exemption. Per regulation, we use historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B cap for a given fiscal year. Only those petitioners with selected registrations for FY 2022 are eligible to file H-1B cap-subject petitions. The initial filing period for those with selected registrations for FY 2022 was from April 1, 2021, through June 30, 2021.

We recently determined that we needed to select additional registrations to reach the FY 2022 numerical allocations. On July 28, we selected previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on July 28 will begin on Aug. 2 and close on Nov. 3. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details of when and where to file.

An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.

Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved. Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still submit evidence and establish eligibility for petition approval based on existing statutory and regulatory requirements.

For more information, visit the H-1B Cap Season page.

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USCIS no longer accepts written requests to reschedule biometrics appointments at application support centers (ASCs). Individuals must now call the USCIS Contact Center to reschedule their appointment in advance of the appointment date. As a reminder, you must establish “good cause” or USCIS will not reschedule the appointment. USCIS does not clearly outline the reasons that would be considered good cause, but the agency does note that you should not come to your appointment if you are sick, are starting to have symptoms of an illness, have been instructed to quarantine, or if you have been in contact with someone with COVID-19.

Attorney Lakshmi Challa hosted a webinar about Navigating the USCIS Contact Center. She shares tips for speaking to a live person and accomplishing your goals on the call.

Please note: missing your scheduled biometrics appointment could result in a denial of your case. You should confirm that your request to reschedule has been successful.

Recent Update from USCIS

We have closed the Biometrics Processing Unit (BPU) in Alexandria, VA and no longer accept written requests to reschedule biometric services appointments at application support centers. You must now call the USCIS Contact Center to reschedule a biometric services appointment. This change reduces paperwork and helps us track requests more efficiently. 

How to Reschedule a Biometric Services Appointment
You must call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833) before the date and time of your original appointment and establish good cause for rescheduling. If you fail to call before your scheduled appointment or fail to establish good cause, USCIS may not reschedule the appointment. If you fail to appear for your originally scheduled biometric services appointment and the appointment is not rescheduled, we will consider the related application, petition, or request abandoned and, as a result, we may deny it.

For more information, please visit the Preparing for Your Biometric Services Appointment webpage.

USCIS Eliminates Need for “Bridge” Applications for F-1 Change of Status Applicants

USCIS announced that individuals applying for a change of status (COS) within the U.S. to F-1 student status no longer have to apply to change or extend their nonimmigrant status while their initial F-1 COS application is pending. This eliminates the need to maintain another nonimmigrant status up to 30 days prior to the program start date listed on the student’s Form I-20. Under the previous policy, applicants for student status often had to file an initial COS and subsequent extensions of another nonimmigrant status to ensure there was no gap in status.

The new policy allows USCIS to grant the change of status to F-1 effective on the day the applicant’s I-539 is approved. In order to be eligible for a COS to F-1 student, the individual must be in a valid unexpired nonimmigrant status at the time of filing the initial COS application.

Although the policy is effective immediately, USCIS is still in the process of updating Form I-539 and the form instructions.

Additional Information from USCIS on Changing to Student Status

Changing to F or M Status from Another Nonimmigrant Status

If you are in the United States in valid nonimmigrant status for a purpose other than to attend school and wish to change your nonimmigrant status (PDF) to a student status while remaining in the United States, you must meet the criteria below and submit an application with USCIS to change your status.

In general, you may apply to change your nonimmigrant status while remaining in the United States if:

• You were lawfully admitted to the United States in a nonimmigrant status;
• Your nonimmigrant status remains valid;
• You have not violated the conditions of your status; and
• You have not committed any crimes or engaged in any other actions that would make you ineligible for change of status.

Until you receive notice of approval from USCIS, do not assume the requested status has been approved. Before USCIS may approve your application, you must take the following steps:

• Apply to and receive acceptance from a U.S. Student and Exchange Visitor Program (SEVP)-certified school.
• Obtain an initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the SEVP-certified school. The Designated School Official (DSO) should give change of status in the Issue Reason section of the Form I-20.
• Pay the I-901 SEVIS Fee.
• File a Form I-539, Application to Extend/Change Nonimmigrant Status, with USCIS.

Not all nonimmigrant classifications are allowed to change to student status. Read the Form I-539 instructions carefully to ensure that your category is eligible.

What if My Current Status Doesn’t Allow Me to Enroll in Classes?

If you are requesting to change from another nonimmigrant status to F or M student status and your current nonimmigrant status does not permit you to enroll in classes, do not enroll in classes or begin your studies until USCIS has approved your change of status. If USCIS has not adjudicated your change of status at least 15 days before the program start date on your Form I-20, contact the designated school official (DSO) at your new school. If USCIS does not grant your request to change status prior to the start date of classes, you may need to defer attendance and wait until the following term in order to begin your studies at the school in F or M status.

Please note that if you are applying to change status to M status, you must maintain a valid nonimmigrant status while your Form I-539 change of status application is pending.

We encourage all students and prospective students to work closely with their DSO to coordinate the timing of applying for change of status and enrolling in a course of study.

NOTE: If you are an M-1 student, you may not change to F status while you are in the United States.

What if My Change of Status Application to F-1 Nonimmigrant Student is Still Pending Within 30 Days of My F-1 Program Start Date?

Due to processing times, you may have to request that your DSO defer the F-1 program start date to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 program start date. If your COS application is approved, your change of status to F-1 will be effective as of the date of approval. You are not required to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”), provided that your nonimmigrant status is unexpired at the time of filing the change of status to F-1 application, and you otherwise remain eligible for a change of status.

What if My Change of Status Application to F-1 Nonimmigrant Student is Approved More than 30 Days Before My F-1 Program Start Date?

If we approve an application more than 30 days before your program start date, you must ensure that you do not violate your F-1 status. An example of a violation would be engaging in employment, including on-campus employment and practical training, more than 30 days before the program start date as listed on your Form I-20.

Leaving the United States to Become an F-1 or M-1 Student

You may consider consular processing if you are concerned about maintaining your nonimmigrant status to within 30 days of your M-1 program start date (which may be deferred as described above) or are otherwise not eligible to change status to F-1 or M-1 status in the United States. You will need to do the following:

• Apply to and receive acceptance from a SEVP-certified school.
• Receive a new initial Form I-20 from your designated school official (DSO).
• Pay the I-901 SEVIS fee.
• Apply at a U.S. consulate or embassy for an F-1 or M-1 visa to travel to the United States in order to seek admission as a student.
• If you are from a country where no visa is required, such as Canada, you may proceed directly to a U.S. port of entry or a U.S. pre-clearance/pre-flight inspection station and apply for admission to the United States as an F-1 or M-1 student.
• Once admitted by an immigration officer in F-1 or M-1 status, you may begin your studies.

For more information about consular processing, please visit the Department of State Travel page. For information about SEVP, please visit the ICE Student and Exchange Visitor Program page or the DHS Study in the States page.

Interfiling Medical Exams for I-485 Filings

USCIS requires that certain individuals seeking immigration benefits, such as permanent residence, must “establish that he or she is not inadmissible on health-related grounds.” Form I-693 is used by I-485 applicants to show they “are free from any conditions that would render them inadmissible under the health-related grounds.”

USCIS states that a medical examination, or completed Form I-693, is valid for 60 days after the civil surgeon physician signs the form. Once submitted to USCIS within the 60-day period, the exams will remain valid for up to 2 years while USCIS adjudicates your Form I-485.

What happens if you didn’t submit your medical form with your I-485?

You have a few options for submitting your Form I-693 after your I-485 has already been filed. Most commonly, USCIS will request the medicals when your case is in the final stages of adjudication by issuing a Request for Evidence (RFE). The I-485 applicant can submit the medical exams to the address on the RFE. You can also bring your medical exams with you if you are scheduled for an in-person interview at a USCIS field office.

In recent months, we have seen some employment-based cases approved without an interview at the field office. If you see that USCIS is processing cases near your priority date and your case may be nearing adjudication, you can also choose to “interfile” or mail USCIS your medical exams to have them linked to your case ahead of an RFE.

What are the risks of interfiling my medical exams?

The main risk is that USCIS may not be able to locate your file and attach the medical exams in a timely manner. For example, if the file has been transferred to a field office and you send your medicals to the service center, there could be a delay in connecting the documentation with your case. If your medical exams are lost or not connected within 60 days, you may have to pay the fees to obtain a new set of medical exams and send to USCIS when requested in an RFE or when you are scheduled for an interview.

Tips for Interfiling Medicals

1. Confirm the actual location of your case with USCIS. 

After checking your case status on your USCIS portal, you can also chat with Emma on the USCIS website (an automated tool that could also connect you to an agent for a live chat) or speak with someone at the USCIS Contact Center to ensure the location of your case.

2. Check the mailing address for the location.

If you have not received an RFE requesting the medical exams, you need to check the acceptable mailing addresses for the appropriate service center or field office. The USCIS website has an office locator function, in addition to listing the direct filing addresses for Form I-485.

3. Include your case details and prepare the package for filing. 

Make sure you have your I-485 receipt numbers and medical exams dated within the last 60 days. Include a copy of the G-28 if applicable. Download a sample medicals cover letter.

4. Ship the medicals with a trackable delivery service. 

Use a delivery service that provides tracking numbers so that you can confirm the date and time of arrival. Keep a record of the confirmation delivery with your files.

USCIS EB-5 Alerts

Investment Level Alert

Alert: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019, including:

• No priority date retention based on an approved Form I-526;
• The required standard minimum investment amount of $1 million and the minimum investment amount for investment in a Targeted Employment Area (TEA) of $500,000;
• Permitting state designations of high unemployment TEAs; and
• Prior USCIS procedures for the removal of conditions on permanent residence.

In other words, we are applying the regulations in effect before Nov. 21, 2019, on this website and in the USCIS Policy Manual, Volume 6, Part G, Investors. In addition, we again will accept the April 15, 2019, version of Form I-526, Immigrant Petition by Alien Entrepreneur, because the Nov. 21, 2019, version of the form reflects updates from the now-vacated rule.

EB-5 Immigrant Investor Regional Center Program Alert

Alert: Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021. This lapse in authorization does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. Due to the lapse in authorization related to the Regional Center Program, USCIS will reject the following forms received on or after July 1, 2021:

• Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
• Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.

In general, we will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority until further notice. If you were issued written correspondence regarding your petition or application on or before June 30, 2021, you should review the written correspondence and respond by the due date (as applicable). Although USCIS is unable to review your response at this time, we will receive and maintain the response for review if circumstances change.

We will continue to accept and review Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, in the normal course, including those filed on or after July 1, 2021.

We will begin rejecting all Forms I-485, Application to Register Permanent Residence or Adjust Status, and any associated Forms I-765, Application for Employment Authorization, and Forms I-131, Application for Travel Document, based on an approved Regional Center Form I-526.

We will provide further guidance to the public if circumstances change or further guidance becomes necessary.

Connecting with Challa Law Group

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

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