Yearly Archives: 2021

Supreme Court Rules TPS Doesn’t Erase Unlawful Entry 

In a unanimous decision, the U.S. Supreme Court determined that Temporary Protected Status (TPS) does not erase an unlawful entry and allow an individual to adjust status to legal permanent resident. The TPS program provides humanitarian relief to foreign nationals in the U.S. from countries designated for dangerous conditions, such as natural disasters or armed conflicts. The regulations state that for purposes of adjustment of status, a person granted TPS “shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”  §1254a(f)(4).

The petitioner, Jose Santos Sanchez, challenged his green card denial, arguing that his Temporary Protected Status was sufficient to allow his permanent residence adjustment. USCIS found Sanchez ineligible because of his unlawful entry. 8 U.S. Code § 1255 states that eligibility for permanent residence requires an “admission” or “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”  §1101(a)(13)(A).

Justice Kagan wrote that “lawful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.” While the petitioner argued that since a TPS recipient is considered a nonimmigrant, he must also be considered as admitted, the court disagreed and confirmed that:

“the immigration laws nowhere state that admission is a prerequisite of nonimmigrant status. So there is no reason to interpret the TPS provision’s conferral of nonimmigrant status as including a conferral of admission. In fact, contrary to Sanchez’s position, there are immigration categories in which individuals have nonimmigrant status without admission.”

Unless Congress changes the existing regulations, there is not a pathway to legal permanent residence (or citizenship) for individuals who entered the country unlawfully, even if they subsequently obtained a temporary nonimmigrant status.

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Non-citizens entering the U.S. may be asked to stop for a photo for identity verification, according to a new CBP press release introducing the practice at Denver International Airport. The biometric facial comparison process compares the photo taken at an inspection point at the airport with one already on file with the government, such as passport and visa photos. If a match can not be made using the new system, the individual will be asked to proceed through the traditional inspection process so officers can review travel documentation.

• U.S. citizens and foreign travelers who are not required to provide biometrics can opt out of the biometric process by notifying a CBP officer
• Photos of most foreign nationals will be stored by the Department of Homeland Security
• Photos of U.S. citizens will be deleted within 12 hours
• 76 million travelers have already participated in the biometric facial comparison process since 2018

Press Release From U.S. Customs and Border Protection (CBP):

DENVER — U.S. Customs and Border Protection (CBP) in partnership with the Denver’s Department of Aviation, announced today the implementation of the Simplified Arrival process at Denver International Airport (DEN). CBP’s enhanced international arrival process uses facial biometrics to automate the manual document checks that are already required for admission into the United States.

As part of our innovation efforts, Simplified Arrival provides travelers with a touchless identity verification process that further secures and streamlines international arrivals while fulfilling a longstanding congressional mandate to biometrically record the entry and exit of non-U.S. citizens.

“We are excited to be rolling out CBP’s Simplified Arrival process in Denver,” said Richard F. Di Nucci, CBP Director of Field Operations in San Francisco. “The combination of skilled CBP officers and the use of advanced biometric technology provides travelers with a secure, efficient, and touchless arrival process and enhances the customer experience.”

Simplified Arrival only uses the biometric facial comparison process at a time and place where travelers are already required by law to verify their identity by presenting a travel document.

When travelers arrive at DEN on an international flight, they will pause for a photo at the primary inspection point. (this should be one paragraph). CBP’s biometric facial comparison process will compare the new photo of the traveler to a small gallery of high-quality images that the traveler has already provided to the government, such as passport and visa photos. In addition, foreign travelers who have traveled to the U.S. previously may no longer need to provide fingerprints as their identity will be confirmed through the touchless facial comparison process.

Simplified Arrival pairs one of the industry’s highest ranked facial comparison algorithms (as assessed by the National Institute of Standards and Technology) with trained CBP officers who are skilled at verifying the authenticity of travel documents. If a traveler cannot be matched to a photo on record using the Simplified Arrival process, the traveler will proceed through the traditional inspection process consistent with existing requirements for entry into the United States.

U.S. citizens or those foreign travelers who are not required to provide biometrics who wish to opt out of the new biometric process may notify a CBP officer as they approach the primary inspection point.  These travelers will be required to present a valid travel document for inspection by a CBP officer and they will be processed consistent with existing requirements for admission into the United States.

CBP is committed to its privacy obligations and has taken steps to safeguard the privacy of all travelers. CBP has employed strong technical security safeguards and has limited the amount of personally identifiable information used in the facial biometric process. New photos of U.S. citizens will be deleted within 12 hours. Photos of most foreign nationals will be stored in a secure Department of Homeland Security system.

CBP and its air travel partners are expanding the use of facial biometrics through public-private partnerships to not only fulfill the Congressional security mandate, but also to further secure and enhance touchless travel wherever identity verification is required for international travel.

To date, more than 76  million travelers have participated in the biometric facial comparison process at air, land, and seaports of entry. Since September 2018, CBP has leveraged facial biometrics to prevent more than 700 imposters from illegally entering the United States by using genuine travel documents that were issued to other people.

More information about CBP’s efforts to secure and streamline travel through facial biometrics can be found here.

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This month’s chat with Charlie provided some valuable insight on how the Visa Bulletin will advance throughout the rest of the year. First, we’ll provide the quick highlights, followed by comprehensive notes on the Q & A session.

Charles Oppenheim predicted that annual limits for FY 2021 are unlikely to be reached given the ongoing effects of the pandemic. However, he also stated that USCIS did a great job processing in the summer of 2020, so he is hopeful progress can be made.

Chats with Charlie Highlights

• Annual limits for FY 2021 are unlikely to be reached this year due to ongoing COVID limitations.
• The family limit in FY 2022 is expected to be 226,000.
• The employment limit is expected to be at least 290,000, which is a new all-time high.
• China and India employment are expected to continue advancing aggressively through the end of the summer and most likely through the early part of FY 2022 as well.
• Charlie expects USCIS to begin accepting adjustment of status filings by Dates for Filing for India in the upcoming months.
• Family-sponsored dates in most preference categories are likely to continue to be held through most of FY 2022.
• The DV rank cutoffs will remain current through the end of the DV 2021 program.

To view the current and upcoming Visa Bulletins, you can visit these links:

• May 2021 Visa Bulletin
• June 2021 Visa Bulletin

Charlie Oppenheim has been with the State Department since 1978 and has been the Chief of the Immigrant Visa and Reporting Division in the Office of Domestic Operations since 1998. The division’s main responsibility is the administration of the annual numerical limits on immigrants, subdivided by preference category and country as provided for by the Immigration and Nationality Act. This division then publishes the Visa Bulletin which summarizes the availability of visa numbers for the coming month, as well as providing other visa–related information.

Do you expect that the FY 2021 family-sponsored and employment-based annual limits will be reached?

No, we do not believe that based on the implications of the COVID-19 situation and other issues which have impacted processing since October, we do not expect that those limits will be reached. The processing of cases at our overseas post has resumed in recent months, but we’re still not at the normal processing levels and my guess is that the USCIS offices are facing the same processing issues.

 What do you expect that the FY 2022 family-sponsored and employment-based annual limits will be?

Under the current INA guidelines, we expect that the family-sponsored annual limit will once again be 226,000. it has been that way since about FY 2000 and for the employment based limit I now expect that the limit will be at least 290,000 for FY 2022. That will be another all-time high in terms of the employment limit.

Do you expect that China and the India employment second preference dates will continue to advance?

Yes. We will continue to advance those dates and most other employment dates as well, with a probable exception of the employment fifth preference category for China. All other employment dates will be moved aggressively through the end of the summer and most likely in the early part of FY 2022 as well again based on the expected exceedingly high annual limit for 2022.

 Do you expect that the worldwide family preference dates will continue to advance through September as well?

Originally, we had expected the movement of the family dates to have slowed or stopped for the summer months but based on changing conditions at our overseas posts which are allowing additional numbers to be utilized, there is an excellent chance that we will be able to continue advancing many of the family dates through the summer.

Which countries typically use the majority of the employment-based visa numbers?

China and India typically use the vast majority of the employment numbers, the reason being these applicants have the earliest priority dates, and also if there are otherwise numbers available under the annual limits, those otherwise unused numbers can be made available to the applicants with the earliest dates. Again, those being typically China and India, particularly in the Indian employment second and third preference categories.

How are the Final Action Dates determined for each month?

We consider a number of variables when making the determination of the dates based on preference category and annual limits, for example, the overall per-country limits and category limits. We determine how many numbers have already been used, how many initial additional numbers we expect to be used during the current month, and the amount of known demand for which number use might be required based on the movement of the Final Action Dates for the upcoming month, so those are just a few of the variables that are involved. There’s a number of others but those are kind of the highlights.

Does USCIS share information with your office regarding the amount of cases they have in various stages of processing?

 Yes, we’re very lucky. The USCIS Ombudsman’s Office hosts a monthly meeting at which State Department, USCIS officers, and sometimes other government agencies are on the on the call or the in-person meeting. In earlier times we discussed the number situations. At the beginning of each month, USCIS provides me with a very detailed report indicating the amount of demand they have, which is in various stages of processing in the various categories we use that information in the determination of the Final Action Dates knowing that such demand could require the use of a number during that upcoming month, for example at the beginning of May, I received the report, I was able to look at that, and based on the information there, determine what the June employment dates should be, based on the likelihood numbers would be used during June.

At what point is a number allocated for use by an applicant based on the determination of the monthly Final Action Dates?

If the applicant has already been reported to our office as being documentarily qualified, meaning they’ve submitted all the required documents that are normally required at the time of visa interview, and their priority date is within the newly announced Final Action Date, the numbers are immediately allocated to for potential final action on their case then throughout that month and the upcoming month, numbers are continually allocated as new cases can be finalized because all of the required processing on them have also been received and finalized. For example I believe one of the questions last month was about the USCIS offices requesting additional information on the case for example a new medical etc. well that new medical is received and then immigration would then once it’s received they could request an additional number for use by that applicant

Do you expect any of the Final Action Dates to be retrogressed?

 No, we do not expect any of the family–sponsored or employment–based Final Action Dates to be retrogressed either in FY 2021 or for the foreseeable future in FY 2022.

In terms of FinalAction Dates, as we move forward, we do expect that many of the family-sponsored Final Action Dates will be held for an extended period of time once our overseas posts do return to completely normal operating status, most likely sometime in next year. The reason being that the dates which have already been established will provide sufficient demand to utilize the vast majority of the 2022 numbers, at least in the first half of the year, potentially moving forward into the second half again, so in terms of family movement of dates they are likely to stop once overseas processing resumes full operational status.

Do you expect any of the DV 2021 rank cutoffs to be retrogressed?

No, all of the DV rank cutoffs will remain current through the end of the DV 2021 program.

Do you anticipate EB-2 EB-3 with some September 2011 priority date will retrogress in FY 2022?

We do not believe that will happen again with the anticipated high limit for 2022 I think that everybody can be assumed that all of the employment dates will continue to be advanced at a very aggressive pace at least for the first half of the year then depending on the amount of new filings and processing rates, things may slow down or have to be held at some point during the second half of FY 2022.

How much movement can we see with EB-3 in the July bulletin?

It will be very aggressive. I think it’s safe to say that most if not all of the application filing dates which are listed for employment in the bulletin, with the exception of China EB-5 will be reached by the end of the year, so again expect very aggressive movement of the employment dates for the month of July.

F-4 retrogressed last year in January 2020. Until now it hasn’t come up to the same month, which was February 2021.

No, the family fourth preference has never reached 2021, so I’m not sure the person submitting the question is on the fourth preference, but the date did retrogress in FY 2020. The reason being throughout, FY 2019, the response rate by applicants who had been requested to assemble and submit required documentation was extremely low, so the worldwide family fourth preference date had been advanced at a very rapid pace to try to maximize number use under the family’s sponsored fourth preference, then eventually the response rate did start picking up and therefore we had to retrogress it, because the amount of available numbers was insufficient to meet the new demand and we’ve been slowly recovering from that retrogression during the course of the last year and a half.

When can we expect a 2016 March EB-3 to be current for India?

I think that the India third preference date is likely to advance into 2012 in the near future. Beyond that we will have to continue to watch incoming demand.

Is there any chance of the spillover from family-based for FY 2021 to employment-based in FY 2022? From the last prediction of 135,000, is it still that same prediction?

Yes, my prediction as I mentioned earlier, I expect that the fall across under the INA guidelines of unused family numbers which are automatically added to the employment annual limit for the following year. I believe that will result in the FY 2022 employment-based limit being at least 290,000.

How is your work audited for the way you move Visa Bulletin dates if all the data is carefully headed under a few months later? It took USCIS 113 days to publish quarter one results.

Over the years, there has been internal monitoring of the number used and the dates constantly. Immigration looks at it as well and over the years the OIG has also looked at the methodology etc. in the past and been satisfied with the results of their studies as well. Basically, everything that is done with the movement of the dates is done in an effort to comply with the Immigration and Nationality Act guidelines. They’re pretty cut-and-dried, saying what should be done. For example the preference limits, the per-country limits, how otherwise unused numbers may be allotted, etc. So it’s fairly easy, we just follow those guidelines.

What is the point of advancing Indian EB-2 filing dates as USCIS refused to accept adjustment of status filing for the month of June 2021?

The State Department has no jurisdiction over what they may choose to do but we continue to advance the application filing dates, because that allows our National Visa Center to contact the eligible applicants based on the movement, and ask them to begin assembling and submit the required documentation. That is an excellent way for me to gain much-needed visibility into potential demand when and if I were to move the Final Action DateFinal Action Dates, and the Immigration Service has a formula which they use to decide whether the either only the Final Action DateFinal Action Dates or a combination of the final action and application filing dates will be allowed to be used. I would suggest that listeners carefully monitor the USCIS website which provides that information on whether the application dates will be able to be used for the upcoming months. At this point I fully believe that the dates which are announced in the October Visa Bulletin for Application Filing Dates be allowed to be used for filing. That has been the standard policy in recent years.

Shouldn’t the spillover go specifically to India since it’s the most backlogged?

No. We are currently estimating that there will be approximately 150,000 unused family-sponsored numbers. Those 150,000 numbers get added to the 140,000 minimum employment-based annual limit resulting in the 290 figure, then the Immigration and Nationality Act guidelines which indicate that in the first employment, first second, and third preference categories, those preference categories are entitled to 28.6 percent of the annual limit and the fourth and fifth preference are entitled to 7.1 percent of those annual limits. Then there is also a 7 percent per-country annual limit which is applied to that 290,000 figure and once that per-country limit is established, then once again there’s 28.6 percent and the 7.1 percent limits are imposed to the availability of numbers within an individual country. So again the Immigration and Nationality Act guidelines imposing the seven percent annual limit, the intent is to prevent a handful of countries from potentially monopolizing all of the available numbers giving an equal chance at applicants around the world to have use of the numbers and then if the numbers are not being used in the various employment categories, then they can be those “otherwise unused numbers” under the annual limit can be provided to the countries which have applicants with the earliest priority dates.

Why is the difference between Filing Date and Final Action Date in the India F-4 only six months and when in other categories the difference is between nine to twelve months?

With the Application Filing Dates, they are established at a point where we believe the Final Action Date is likely to reach within the next eight to twelve months. The amount of applicants in the India F-4 preference category which have applied and submitted all the required documentation is sufficient within that roughly six month period to utilize all the numbers we believe will be available in the near future. Once that level of demand starts to be diminished, then the Application Filing Date for India F-4 would be advanced. Those dates are established and advanced depending on the various preference categories.

Does the State Department have authority to make all priority dates current if USCIS does not use the employment-based visas available this year for example the 262,000 for FY 2021?

The way the Final Action DateFinal Action Dates are determined, we have a number use target for a given month. We compare that target with the amount of numbers available and the demand, so we look carefully at the amount of demand which potentially could utilize the available numbers. If there is not sufficient demand that we can see, then a category, for example, in the worldwide employment third preference category that is currently deemed to be current because the level of demand that we have on file at this moment is not sufficient to fully utilize all the available numbers, but if we were able to see the demand was there we might have to establish a Final Action Date.

Why did you move the family first preference Filing Dates aggressively and are you planning to move the priority dates aggressively with the Application Filing Dates?

On the family categories family first preference, once again we wanted to stimulate applicant responses so that we could generate sufficient demand to fully utilize the available numbers. The advancement of the F-1 Final Action Date has also been done in a manner to allow enough applicants to be ready to go, and potentially use all of the available numbers under that limit. The F-1 annual limit is 23,400, so by the end of the year we want to have a date which will generate enough demand to allow all those numbers to be utilized.

Out of 262,000 visas which were available to employment immigrantion, how many visas have already been used, and how many visas can be expected to be used by the end of this fiscal year?

We do not publish mid-year figures or discuss that in terms of number use. I do believe that both on the family and employment side there will be significant amounts of unused numbers under the annual limit. We are hoping that that proves not to be the case through continuing efforts to utilize visa numbers. For example, during the summer months of 2020, last summer, we did not expect the employment annual limit to be reached then, yet the extraordinary efforts of USCIS in terms of being able to process cases during the summer months allowed the vast majority of the employment numbers to be utilized. We continually monitor the situation, and again the aggressive movement of the employment dates have been done in a manner to potentially maximize number use by making numbers available to qualified applicants.

When do you expect F–3 final action for the rest of the world will have a strong forward movement again?

In the F-3 preference category, as I mentioned earlier, the dates have already been advanced at an aggressive pace to maximize potential number use under this year’s annual limits, therefore to the extent we’re not able to utilize those numbers, we will already have them ‘on hand ready to go as we move into FY 2022. That is the reason I believe that at some point the family-sponsored dates in many or most preference categories are likely to be held for an extended period of time, because we will already have enough applicants ‘queued up ready to go’ based on the existing dates and therefore we do not need to continue to advance those dates.

What is the reasoning for progressing the EB-2 India Filing Dates especially since the Filing table cannot be used?

As mentioned earlier, we advanced the Application Filing Dates to allow our National Visa Center to notify applicants who have petitions on file with them for processing abroad to begin assembling the required documents, so that they will have visibility into such demand in the future and that those applicants then are potentially ready to be scheduled based on the movement of the Final Action Date at some future point. Again, this is to gin up in the demand for visibility on our side. The Immigration Service has a different policy for determining when they will allow those application filing dates to be utilized.

When you say aggressive, what does that exactly mean to you? Are you talking 12 months, 15 months, 9 months?

I would say, for example, in the India second preference. For the previous two fiscal years, often the India employment second preference date was often moving by a matter of days, up to a week, maybe two weeks or a month. Our aggressive movement in recent months has been three to five to eight months at a time. so therefore again the aggressive movement is made in an effort to make sufficient numbers available to fully utilize the annual limits. At this point, all of the employment first preference categories are current, meaning there’s sufficient demand for all applicants, additional numbers which will not be required in the first can fall down and be utilized in the employment second preference category, and that is allowing both the China and India dates to be moving at a very rapid pace.

What order are the applications processed in? Is it based on priority date, received date, or notice date?

I cannot speak to the USCIS processing, but at the State Department, it’s based on when the applicants become documentarily qualified, meaning they’ve submitted all the required, requested documents to the National Visa Center, and then have been reported to the Visa Office for consideration. The cases will be processed in the order that they were originally provided to the visa office.

How are cases at KCC prioritized?

The KCC handles all of the documents that are submitted for overseas processing of diversity visa categories. Once again, they would be processing in the order that the cases became documentarily qualified, so it is my understanding that for both the family and employment cases and the diversity cases, a case that was submitted in October would be scheduled for an interview before a case that only was reported became qualified and reported to the Visa Office in March. so again we’re taking the cases in the order the people became ready.

Do you believe that India EB-3 from 2013 will be current in 2022?

I do believe that an India 2013 priority date will be reached in FY 2022. If you look at the application filing dates which are listed in June, and the employment categories with the exception of employment fifth preference China, I believe all of the other application dates will be reached by the Final Action Date by September. One example is for Vietnam employment fifth preference that there is no application filing date. I believe there is an excellent chance the Vietnam employment fifth preference category will become current by September.

In our last monthly chat, you indicated that dates for processing immigrant visas for the F-4 category were going to move. However, those dates didn’t move this month. Do you know why?

The worldwide family fourth preference for the month of June did advance. I don’t have the sheet with the May date, but I believe the worldwide fourth preference date advanced two to three weeks for the month of June.

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USCIS Temporarily Suspends Biometrics Requirement for Certain Form I-539 Applicants

What is Considered “Critical Infrastructure” & Eligible for a National Interest Exception to Travel Bans?

There are currently four Presidential Proclamations suspending entry into the United States of noncitizens physically present in any of 33 affected countries. However, the Secretary of State has determined that it is in the national interest to allow entry to certain travelers providing executive direction or vital support for critical infrastructure sectors or directly linked supply chains. These 16 critical infrastructure sectors are outlined on the Cybersecurity & Infrastructure Security Agency (CISA) website.

From CISA: Identifying Critical Infrastructure During COVID-19

There are 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof. Presidential Policy Directive 21 (PPD-21): PPD-21 identifies 16 critical infrastructure sectors.

Chemical Sector

The Chemical Sector is an integral component of the U.S. economy that manufactures, stores, uses, and transports potentially dangerous chemicals upon which a wide range of other critical infrastructure sectors rely. Securing these chemicals against growing and evolving threats requires vigilance from both the private and public sector.

Commercial Facilities Sector

The Commercial Facilities Sector includes a diverse range of sites that draw large crowds of people for shopping, business, entertainment, or lodging. Facilities within the sector operate on the principle of open public access, meaning that the general public can move freely without the deterrent of highly visible security barriers. The majority of these facilities are privately owned and operated, with minimal interaction with the federal government and other regulatory entities.

Communications Sector

The Communications Sector is an integral component of the U.S. economy, underlying the operations of all businesses, public safety organizations, and government. Presidential Policy Directive 21 identifies the Communications Sector as critical because it provides an “enabling function” across all critical infrastructure sectors. Over the last 25 years, the sector has evolved from predominantly a provider of voice services into a diverse, competitive, and interconnected industry using terrestrial, satellite, and wireless transmission systems. The transmission of these services has become interconnected; satellite, wireless, and wireline providers depend on each other to carry and terminate their traffic and companies routinely share facilities and technology to ensure interoperability.

Critical Manufacturing Sector

The Critical Manufacturing Sector is crucial to the economic prosperity and continuity of the United States. A direct attack on or disruption of certain elements of the manufacturing industry could disrupt essential functions at the national level and across multiple critical infrastructure sectors.

Dams Sector

The Dams Sector delivers critical water retention and control services in the United States, including hydroelectric power generation, municipal and industrial water supplies, agricultural irrigation, sediment and flood control, river navigation for inland bulk shipping, industrial waste management, and recreation. Its key services support multiple critical infrastructure sectors and industries. Dams Sector assets irrigate at least 10 percent of U.S. cropland, help protect more than 43 percent of the U.S. population from flooding, and generate about 60 percent of electricity in the Pacific Northwest.

Defense Industrial Base Sector

The Defense Industrial Base Sector is the worldwide industrial complex that enables research and development, as well as design, production, delivery, and maintenance of military weapons systems, subsystems, and components or parts, to meet U.S. military requirements. The Defense Industrial Base partnership consists of Department of Defense components, more than 100,000 Defense Industrial Base companies and their subcontractors who perform under contract to the Department of Defense, companies providing incidental materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities. Defense Industrial Base companies include domestic and foreign entities, with production assets located in many countries. The sector provides products and services that are essential to mobilize, deploy, and sustain military operations. 

Emergency Services Sector

The Emergency Services Sector (ESS) is a community of millions of highly-skilled, trained personnel, along with the physical and cyber resources, that provide a wide range of prevention, preparedness, response, and recovery services during both day-to-day operations and incident response. The ESS includes geographically distributed facilities and equipment in both paid and volunteer capacities organized primarily at the federal, state, local, tribal, and territorial levels of government, such as city police departments and fire stations, county sheriff’s offices, Department of Defense police and fire departments, and town public works departments. The ESS also includes private sector resources, such as industrial fire departments, private security organizations, and private emergency medical services providers.

Energy Sector

The U.S. energy infrastructure fuels the economy of the 21st century. Without a stable energy supply, health and welfare are threatened, and the U.S. economy cannot function. Presidential Policy Directive 21 identifies the Energy Sector as uniquely critical because it provides an “enabling function” across all critical infrastructure sectors. More than 80 percent of the country’s energy infrastructure is owned by the private sector, supplying fuels to the transportation industry, electricity to households and businesses, and other sources of energy that are integral to growth and production across the nation.

Financial Services Sector

The Financial Services Sector represents a vital component of our nation’s critical infrastructure. Large-scale power outages, recent natural disasters, and an increase in the number and sophistication of cyberattacks demonstrate the wide range of potential risks facing the sector.

Food and Agriculture Sector

The Food and Agriculture Sector is almost entirely under private ownership and is composed of an estimated 2.1 million farms, 935,000 restaurants, and more than 200,000 registered food manufacturing, processing, and storage facilities. This sector accounts for roughly one-fifth of the nation’s economic activity.

Government Facilities Sector

The Government Facilities Sector includes a wide variety of buildings, located in the United States and overseas, that are owned or leased by federal, state, local, and tribal governments. Many government facilities are open to the public for business activities, commercial transactions, or recreational activities while others that are not open to the public contain highly sensitive information, materials, processes, and equipment. These facilities include general-use office buildings and special-use military installations, embassies, courthouses, national laboratories, and structures that may house critical equipment, systems, networks, and functions. In addition to physical structures, the sector includes cyber elements that contribute to the protection of sector assets (e.g., access control systems and closed-circuit television systems) as well as individuals who perform essential functions or possess tactical, operational, or strategic knowledge.

Healthcare and Public Health Sector

The Healthcare and Public Health Sector protects all sectors of the economy from hazards such as terrorism, infectious disease outbreaks, and natural disasters. Because the vast majority of the sector’s assets are privately owned and operated, collaboration and information sharing between the public and private sectors is essential to increasing resilience of the nation’s Healthcare and Public Health critical infrastructure. Operating in all U.S. states, territories, and tribal areas, the sector plays a significant role in response and recovery across all other sectors in the event of a natural or manmade disaster. While healthcare tends to be delivered and managed locally, the public health component of the sector, focused primarily on population health, is managed across all levels of government: national, state, regional, local, tribal, and territorial.

Information Technology Sector

The Information Technology Sector is central to the nation’s security, economy, and public health and safety as businesses, governments, academia, and private citizens are increasingly dependent upon Information Technology Sector functions. These virtual and distributed functions produce and provide hardware, software, and information technology systems and services, and—in collaboration with the Communications Sector—the Internet. The sector’s complex and dynamic environment makes identifying threats and assessing vulnerabilities difficult and requires that these tasks be addressed in a collaborative and creative fashion.

Nuclear Reactors, Materials, and Waste Sector

From the power reactors that provide electricity to millions of Americans, to the medical isotopes used to treat cancer patients, the Nuclear Reactors, Materials, and Waste Sector covers most aspects of America’s civilian nuclear infrastructure. The Nuclear Sector Risk Management Agency within the Department of Homeland Security is responsible for coordinating the security and resilience of the Nuclear Sector.

Transportation Systems Sector

The Department of Homeland Security and the Department of Transportation are designated as the Co-Sector Risk Management Agencies for the Transportation Systems Sector. The nation’s transportation system quickly, safely, and securely moves people and goods through the country and overseas.

Water and Wastewater Systems Sector

Safe drinking water is a prerequisite for protecting public health and all human activity. Properly treated wastewater is vital for preventing disease and protecting the environment. Thus, ensuring the supply of drinking water and wastewater treatment and service is essential to modern life and the Nation’s economy.

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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.

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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.

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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.