USCIS Introduces “Bona Fide Determination” Policy to Speed Up Work Authorization for U Visa Petitioners

USCIS Introduces “Bona Fide Determination” Policy to Speed Up Work Authorization for U Visa Petitioners

USCIS announced a new policy that will provide faster work authorization for certain U visa petitioners. After conducting background checks and biometrics, USCIS can use discretion to issue employment authorization and deferred action if the individual does not pose a risk to national security or public safety.

U nonimmigrant status is available to noncitizens who have been victims of certain crimes, including domestic violence and sexual assault, and who are or have been helpful to law enforcement in the prosecution or investigation of those crimes. A noncitizen granted U-1 nonimmigrant status as a principal petitioner is authorized to work based on that status. USCIS automatically issues an Employment Authorization Document (EAD) to principal petitioners upon the approval of the Petition for U Nonimmigrant Status (Form I-918).

If the number of approvable petitions exceeds the annual visa cap allocation, USCIS places the approvable petitions on a waiting list. USCIS grants deferred action or, in limited circumstances, parole to U-1 principal petitioners and qualifying family members on the waiting list. USCIS may, as a matter of discretion, also authorize employment for such petitioners and qualifying family members.

If a bona fide determination can be made, USCIS will issue an EAD and defer action for 4 years for U visa petitioners and qualifying family members, instead of waiting for a full adjudication. The announcement also clarified that USCIS is adopting a Ninth Circuit court decision nationwide, which confirms that a relationship between the principal petitioner and the qualifying family member (based on marriage) will be evaluated on whether the marriage relationship existed at the time of favorable adjudication, rather than when the petition was initially filed.

From USCIS:

U.S. Citizenship and Immigration Services is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.

“Today we are taking steps to help victims of crime and promote public safety,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These are individuals who have come forward to help law enforcement keep us all safe, but who are in need of a measure of protection for themselves as well. The Bona Fide Determination process is consistent with the Department’s statutory authorities and will ensure these individuals receive the support they need.”

“Victims of crime need a way to support themselves as they heal and continue their pursuit of justice,” said USCIS Acting Director Tracy Renaud. “This Bona Fide Determination process will allow U visa petitioners to work while they remain safely in the United States, providing valuable support to law enforcement to detect, investigate, or prosecute the serious crimes they have survived or witnessed.”

Through this new process, USCIS will issue employment authorization and grant deferred action to petitioners in the United States with pending U visa petitions that it determines are bona fide (made in good faith and without intention of deceit or fraud) and who merit a favorable exercise of discretion. To be considered bona fide, the petition must include a certification from law enforcement that the petitioner was a victim of a crime and that the victim has been, is being, or is likely to be helpful in the investigation or prosecution of that crime.

Congress has capped the number of principal U visas available each fiscal year at 10,000, but since 2010 USCIS has received more than 10,000 U visa petitions each year. As a result of this high case volume, U visa petitioners now wait approximately five years before receiving a determination that allows them access to an employment authorization document and deferred action. This wait time not only leaves these individuals vulnerable to financial instability and fear of deportation, but it also can disincentivize victims from coming forward and cooperating with law enforcement. Through this policy update, victims with pending bona fide petitions will receive the stability they need as they rebuild their lives while working with law enforcement to investigate and prosecute criminal activity. This increase in victim cooperation will further fortify law enforcement’s ability to protect communities throughout the United States.

USCIS will deem a petition bona fide if:

  • The principal petitioner properly filed Form I-918, including Form I-918B U Nonimmigrant Status Certification;
  • The principal petitioner properly filed a personal statement from the petitioner describing the facts of the victimization; and
  • The result of the principal petitioner’s biometrics has been received.

USCIS will issue employment authorization and deferred action if, after conducting and reviewing background checks, the agency determines, in its discretion, that petitioners merit a favorable exercise of discretion and do not pose a risk to national security or public safety.

This guidance is effective immediately and applies to all Form I-918 and Form I-918A petitions that are currently pending or filed on or after June 14, 2021.

Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking and other qualifying crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and who cooperate with law enforcement authorities during the investigation or prosecution of the criminal activity. In the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Congress specifically authorized DHS to grant employment authorization to a noncitizen who has a pending, bona fide petition for U nonimmigrant status. This guidance implements that authority.

This reform is one of a number of initiatives designed to eliminate complex, costly, and unjustified administrative burdens and barriers, and thus to improve our immigration processes.

Visit  Victims of Human Trafficking and Other Crimes to learn more about other protections for victims of crime, human trafficking and domestic violence.

For more information see the policy alert.

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USCIS Adds History Section to Policy Manual

USCIS has made historical versions of the USCIS Policy Manual available to the public. These historical versions will reflect the pertinent policy in effect on a particular date and are being provided for research and reference purposes only. Users can find the historical versions under the “History” tab within the Policy Manual chapters. However, this tab will only reflect historical changes moving forward. For historical versions before June 11, you can visit the Internet Archive.


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Lockbox Delays: USCIS Filing Flexibilities

USCIS announced that additional flexibilities will be extended to certain applicants and petitioners who have been affected by delays at USCIS lockboxes. From June 10 to August 9, 2021, benefit requests rejected to expired filing fee payments may be resubmitted. The agency also noted that resubmissions that affected children reaching an age that makes them no longer eligible to file will be granted flexibility for the request and deem it to have been received on the date the initial request was received. This follows similar flexibilities granted to F-1 students who were impacted by lockbox delays.

From USCIS: 

U.S. Citizenship and Immigration Services will offer filing flexibilities to provide relief to certain applicants and petitioners impacted by delays at a USCIS lockbox. These flexibilities only apply to benefit requests submitted to a USCIS lockbox and not to USCIS service centers or field offices.

The following temporary flexibilities are effective for 60 days from June 10 until Aug. 9, 2021:

  • If you submitted a benefit request to a USCIS lockbox between Oct. 1, 2020, and April 1, 2021, and that request was rejected during that timeframe solely due to a filing fee payment that expired while the benefit request was awaiting processing, you may resubmit the request with a new fee payment. If USCIS concurs that it has rejected the benefit request because of the delay, USCIS will deem the request to have been received on the initial filing date it was first received and waive the $30 dishonored check fee.
  • USCIS will allow applicants and petitioners to submit documentation with a benefit request resubmission demonstrating that because of the time that elapsed between when a benefit request was originally submitted to a USCIS lockbox and when USCIS rejected it, an applicant, co-applicant, beneficiary or derivative has reached an age that makes them no longer eligible to file for the benefit requested. If USCIS agrees that the delayed rejection caused the person to be ineligible due to age, USCIS will accept the request and deem it to have been received on the date the initial benefit request was received. This flexibility does not apply to Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.

Applicants and petitioners can contact USCIS to verify previously filed benefit requests have not been rejected in error. If USCIS concurs, we may allow applicants and petitioners to resubmit an erroneously rejected benefit request and deem the benefit request to have been received on the date the initial benefit request was first received at a USCIS lockbox.

For more information on these filing flexibilities, including how to request them, visit the USCIS website.


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USCIS to Improve Immigration Services: Expedited Processing, RFEs, & EAD Updates

USCIS to Improve Immigration Services: Expedited Processing, RFEs, & EAD Updates

USCIS has issued a series of policy updates that are intended to improve immigration services, updating expedite criteria, how RFEs and NOIDS will be issued, and increasing the validity period for EADs for certain adjustment of status applicants.

Quick Summary of USCIS Updates: 

  • Adds non-profits contributing to the cultural and social interests of the U.S. to the eligibility list for expedited processing
  • Clarifies when expedited processing may be warranted
  • Rescinds 2018 memo permitting officers to deny immigration benefit requests instead of first issuing an RFE or NOID.
  • Increase the one-year validity period on initial and renewal EADS to two years for certain adjustment of status applicants
    • This should reduce the volume of EAD applications and speed EAD processing for nonimmigrant categories

From USCIS: 

WASHINGTON—U.S. Citizenship and Immigration Services has issued new policy updates in the USCIS Policy Manual to clarify the criteria and circumstances for expedited processing; improve request for evidence (RFE) and notice of intent to deny (NOID) guidance; and increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

“We are taking action to eliminate policies that fail to promote access to the legal immigration system, and will continue to make improvements that help individuals navigate the path to citizenship, and that modernize our immigration system,” said Secretary of Homeland Security Alejandro N. Mayorkas.

“These policy measures are consistent with the Biden-Harris administration’s priorities to eliminate unnecessary barriers to our nation’s legal immigration system and reduce burdens on noncitizens who may be eligible for immigration benefits,” said Acting USCIS Director Tracy Renaud. “USCIS is committed to promoting policies and procedures that ensure we operate in a fair, efficient, and humane manner that reflects America’s heritage as a land of opportunity for those who seek it.”

Expedited Processing

Under the updated expedite criteria policy, benefit requestors and USCIS officers are provided further guidance on when expedited processing may be warranted. Additionally, nonprofit organizations whose request is in furtherance of the cultural and social interests of the United States may request that a benefit be considered for expedited processing, even if premium processing is available for that benefit.

Expedited processing is a special-situation service that USCIS considers for benefit requestors who urgently need their request for immigration benefits adjudicated. USCIS reviews such requests on a case-by-case basis. Expedited requests for noncitizens with a final order of removal or noncitizens in removal proceedings are coordinated between USCIS and U.S. Immigration and Customs Enforcement.

Requests for Evidence and Notices of Intent to Deny

USCIS is returning to the adjudicative principles of a June 2013 memo that instructed agency officers to issue an RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit. As part of the updated RFE and NOID policy, USCIS is rescinding a July 2018 memo that permitted agency officers to deny certain immigration benefit requests instead of first issuing an RFE or NOID.

This updated policy will ensure that benefit requestors are given an opportunity to correct innocent mistakes and unintentional omissions. In general, a USCIS officer will issue an RFE or NOID when the officer determines additional information or explanation may potentially establish eligibility for an immigration benefit.

Employment Authorization Documents

Updated policy guidance will increase the current one-year validity period on both initial and renewal EADs to two years for certain adjustment of status applicants. Increasing the validity period on EADs for certain adjustment applicants is expected to reduce the number of employment authorization requests USCIS receives and allow the agency to shift limited resources to other priority areas.

This guidance was issued due to ongoing processing delays affecting the completion of adjustment of status applications. Renewing EADs in this category is generally free, and USCIS received nearly 370,000 adjustment-related employment authorization requests in fiscal year 2020.

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Can Registering to Vote Prevent You From Becoming a U.S. Citizen?

Can Registering to Vote Prevent You From Becoming a U.S. Citizen?

There is often confusion around registering to vote, especially when the application process is included as part of a state benefit application process. If an individual knowingly makes a false statement or claim that he or she is or has been a U.S. citizen or national of the United States, with the intent to obtain a federal or state benefit or service or to engage unlawfully in employment, they are committing an unlawful act making the individual ineligible to naturalize during the statutory period. What happens if an individual unknowingly registers to vote?

In order to become a U.S. citizen, individuals must prove that they have “good moral character” (GMC), which is defined in the USCIS Policy Manual as “character which measures up to the standards of average citizens of the community in which the applicant resides.” Individuals must prove GMC for the statutory period prior to filing and up to the time of the Oath of Allegiance. For most legal permanent residents, that statutory period is 5 years but is reduced to three years if the individual obtained permanent residence based on their marriage to a U.S. citizen. There is also a reduced statutory period of one year of GMC for qualifying military service.

A number of unlawful acts are recognized by case law as barring good moral character. There are permanent bars to GMC, as well as “conditional bars” that are triggered by “by specific acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization.” 

Conditional Bars to GMC for Acts Committed in Statutory Period

  • One or More Crimes Involving Moral Turpitude (CIMTs)
  • Aggregate Sentence of 5 Years or More
  • Controlled Substance Violation
  • Incarceration for 180 Days
  • False Testimony under Oath
  • Prostitution Offenses
  • Smuggling of a Person
  • Polygamy
  • Gambling Offenses
  • Habitual Drunkard
  • Two or More Convictions for Driving Under the Influence (DUI)
  • Failure to Support Dependents
  • Adultery
  • Unlawful Acts
    • Bail jumping, bank fraud, conspiracy to distribute a controlled substance, failure to file or pay taxes, falsification of records, false claim to U.S. citizenship, forgery-uttering, insurance fraud, obstruction of justice, sexual assault, social security fraud, unlawful harassment, unlawfully registering to vote, unlawful voting, violating a U.S. embargo

Claiming U.S. Citizenship, Registering to Vote, & Unlawful Voting

Voting or registering to vote can prevent an individual from naturalizing during the statutory period. Only U.S. citizens can vote in local, state, or federal elections.

The update to the USCIS Policy Manual recognizes that individuals may unknowingly take steps to register to vote, but still cautions that an unlawful act could have occurred.

However, USCIS does not consider an applicant to have made a false claim to U.S. citizenship in order to register to vote if the applicant was unaware that the false claim would result in his or her voter registration. In addition, an applicant who makes a false claim in a driver’s license or state benefit application, where unconnected to voter registration, does not commit an unlawful act under 18 U.S.C. 1015(f). This is because a violation of 18 U.S.C. 1015(f)requires the applicant to have made a false claim “in order to register to vote or to vote in any Federal, State, or local election.” However, the applicant may have violated 18 U.S.C. 1015(e)or an applicable state law.

USCIS does not consider an applicant to have unlawfully claimed to be a U.S. citizen if the applicant did not affirmatively indicate that he or she is a U.S. citizen. However, if the applicant registered to vote, the applicant has the burden to prove that the registration form did not contain a question about whether the applicant is a U.S. citizen or that the applicant did not indicate, in response to such a question, that he or she is a U.S. citizen.

Who Can Vote?

You can vote in U.S. elections if you:

  • Are a U.S. citizen
  • Meet your state’s residency requirements
  • Are 18 years old on or before Election Day
    • In almost every state, you can register to vote before you turn 18 if you will be 18 by Election Day.
  • Are registered to vote by your state’s voter registration deadline. North Dakota does not require voter registration.

Who CAN’T Vote?

Tips for Noncitizens

  • When applying for a driver’s license or other state benefit, carefully review any forms or documents you are asked to complete and sign.
  • Even if you are a permanent resident, voting is not permitted. You must be a U.S. citizen to vote in federal, state, or local elections. 

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USCIS Updates Citizenship Policy Guidance for Certain Veterans

USCIS Updates Citizenship Policy Guidance for Certain Veterans

Effective immediately, USCIS clarifies that naturalization interviews for veterans residing outside of the United States must take place in the United States. However, USCIS may exercise discretion to coordinate with U.S. Customs and Border Protection to allow USCIS officers to conduct naturalization interviews at a port of entry. All background checks must be completed prior to an interview being scheduled. The policy also defines the documentation used to review an applicant’s military service and whether any separation occurred under honorable conditions. The policy update also explains that Form N-426 must be certified within 6 months of submission of the N-400 to USCIS, except for applicants enlisted in the Selected Reserve of the Ready Reserve through the Military Accessions Vital to National Interest (MAVNI) program before October 13, 2017.

The policy manual update notes:

In general, an applicant who files on the basis of honorable military service during hostilities is not required to be a lawful permanent resident (LPR) under certain conditions. In accordance with the statutory provisions, some veterans of the U.S. armed forces who served and were honorably discharged but are not LPRs may be eligible to naturalize under INA 329 even if currently residing outside the United States. In some cases, such veterans may seek to be admitted or paroled into the United States for the purpose of attending a naturalization interview and oath ceremony.

If you have questions on whether the physical presence or continuous residence provisions may be waived, please contact us at info@challalaw.com.

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Supreme Court Rules TPS Doesn’t Erase Unlawful Entry 

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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CBP Snaps Photos for New Facial Biometrics Program

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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June Visa Bulletin Department of State Q & A

 

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:

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 visarelated 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 familysponsored or employmentbased 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 F3 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 Suspends Biometrics for 24 Months (H-4, L-2, E-1, E-2, E-3 Visas)

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

Effective May 17, 2021, U.S. Citizenship and Immigration Services will temporarily suspend the biometrics submission requirement for certain applicants filing Form I-539, Application To Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, and E nonimmigrant status. USCIS will allow adjudications for those specific categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director.

This temporary suspension will apply to applicants filing Form I-539 requesting the following:

  • Extension of stay in or change of status to H-4 nonimmigrant status;
  • Extension of stay in or change of status to L-2 nonimmigrant status;
  • Extension of stay in or change of status to E-1 nonimmigrant status;
  • Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor)); or
  • Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D).

This suspension will apply only to the above categories of Form I-539 applications that are either:

  • Pending as of May 17, 2021, and have not yet received a biometric services appointment notice; or
  • New applications postmarked or submitted electronically on or after May 17, 2021.

However, USCIS retains discretion on a case-by-case basis to require biometrics for applicants who meet the criteria above, and any applicant may be scheduled for an application support center (ASC) appointment to submit biometrics.

Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment.

Effective May 17, 2021, Form I-539 applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period. USCIS will return a biometric services fee if submitted separately from the base fee. USCIS will allow a short grace period during which USCIS will not reject Form I-539 filed with the biometric services fee. USCIS will begin rejecting paper Form I-539 applications postmarked May 27, 2021, or later (while this suspension of the biometrics requirement is in effect), if applicants meeting the above criteria submit a single payment covering both the filing fee and the $85 biometrics services fee. If USCIS rejects the paper application because the applicant included the $85 biometrics service fee after the grace period, the applicant will need to re-file Form I-539 without the biometric services fee.

Background
Beginning March 2019, USCIS required certain Form I-539 applicants and co-applicants to appear in person at an ASC to submit their biometrics. In March 2020, USCIS temporarily suspended in-person services at its field offices, asylum offices, and ASCs to help slow the spread of COVID-19. Although ASCs have since reopened to the public, they are not yet operating at full appointment capacity due to necessary COVID-19 health and safety protocols. These temporary closures and capacity limitations at the ASCs, accompanied by other processing delays, created a substantial volume of cases awaiting biometrics appointments at ASCs.

The significant volume of pending cases related to Form I-539 are particularly impacting the timeframe for USCIS to adjudicate the related employment authorization applications (Form I-765, Application for Employment Authorization) for H-4 nonimmigrants (spouses and children of H-1B nonimmigrants), L-2 nonimmigrants (spouses and children of L-1 nonimmigrants), and certain E nonimmigrants (dependents of E-1, E-2 and E-3 principal nonimmigrants).

While DHS regulations provide for an automatic extension of employment authorization for certain EAD renewals, H-4, L-2, and E nonimmigrants are not included in the applicable automatic renewal provisions. Form I-765 cannot be approved until after the dependent spouse’s underlying H-4, L-2, or E nonimmigrant status is granted or extended upon approval of Form I-539.

Suspending biometrics requirements for 24 months for H-4, L-2, and E nonimmigrants filing Form I-539 who meet the criteria above will provide sufficient time for USCIS to address the processing delays that have been exacerbated by limited ASC capacity due to COVID-19 health and safety protocols. USCIS has decided to suspend biometrics submission for all H-4, L-2, and E nonimmigrants (in other words, both dependent spouses and children) filing Forms I-539 rather than limiting the suspension to only those dependent spouses who are also filing Form I-765 because it would not be operationally feasible to treat dependent children differently from dependent spouses. USCIS will continue to monitor ASC capacity and adjudication processing times for Form I-539 and Form I-765 and may adjust or extend this suspension as circumstances change.

USCIS has general authority to require the submission of biometrics from applicants, petitioners, and beneficiaries for immigration or naturalization benefits or requests. The Immigration and Nationality Act (INA) at section 103(a), 8 U.S.C. 1103(a), provides general authority for DHS to collect or require submission of biometrics. DHS regulations provide specific authority to require biometrics submission at 8 CFR 103.2(b)(9) and 103.16.

This alert is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or  benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

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