USCIS Selects Third Round of H-1B Registrations for FY 2022

From USCIS, 11/19/2021

USCIS Conducts Third Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

We recently determined that we needed to select additional registrations to reach the fiscal year (FY) 2022 H-1B numerical allocations, including the advanced degree exemption. On Nov. 19, we selected from among previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on Nov. 19 will begin on Nov. 22, 2021, and close on Feb. 23, 2022. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details about when and where to file.

In July 2021, we conducted a second random selection from among properly submitted electronic registrations for the FY 2022 H-1B numerical allocations. The petition filing period based on registrations selected in July ended on Nov. 3, 2021.

We conducted an initial selection in March 2021. The initial filing period for those with selected registrations for FY 2022 was from April 1, 2021, through June 30, 2021. Per regulation, we take into account historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B numerical allocations for a given fiscal year. Only those petitioners with selected registrations for FY 2022 are eligible to file H-1B cap-subject petitions.

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

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

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

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USCIS Issues Policy Guidance on Automatic EAD Extensions for Dependent Spouse (H-4, E, L)

USCIS Issues Policy Guidance on Automatic EAD Extensions for Dependent Spouse (H-4, E, L)

USCIS reached a settlement agreement as a result of recent litigation (Shergill, et al. v. Mayorkas) targeting the delayed processing times for EAD applications and extensions. Previously USCIS prohibited H-4 spouses from benefiting from automatic employment authorization extensions while their EAD applications were pending. Following the settlement agreement, USCIS released new guidance allowing H-4 spouses automatic EAD extensions and clarifying that L and E spouses will now enjoy automatic work authorization incident to status. The L and E dependent spouses will no longer have to apply for employment authorization unless they prefer to have the document for identity verification and other related purposes.

While the new guidance is effective immediately, the settlement agreement notes a maximum 120-day timeline for implementing the changes. USCIS will continue to issue E and L dependent spouses EADs upon filing Form I-765. Individuals may want to continue filing I-765 since EADs are acceptable for I-9 purposes as List A documents, demonstrating employment authorization and identity.

Under the new guidance, what is acceptable evidence of work authorization for I-9 purposes?

  • A document combination to include:
    • an unexpired Form I-94 indicating nonimmigrant status (H-4, E, or L)
    • Form I-797C (receipt notice) showing a timely-filed EAD renewal application stating “class requested” as “(a)(17),” “(a)(18),” or “(c)(26),” and
    • The facially expired EAD issued under the same category (that is, indicating Category A17, A18, or C26).

Note: DHS will modify Forms I-94 for L and E dependents to distinguish spouses from children. Only once those changes are made will the revised Form I-94 be acceptable as a List C document and EAD extensions will no longer be required for L and E dependent spouses. The evidence of employment authorization must have a notation indicating the individual is an E or L dependent spouse. Prior to that change taking place, L and E dependents should follow the same guidelines outlined above for EAD applicants.

My E or L EAD extension is still pending. Can I start working again?

    • E and L dependent spouses are employment authorized incident to status and therefore will no longer have to file Form I-765 once the I-94 has been updated, but may continue to file if they choose to receive an EAD.
    • However, the updated guidance states: “Therefore, until USCIS is able to issue alternative evidence of employment authorization for this group, they will likely continue to request an EAD through the Form I-765 process to meet Form I-9 requirements.”
    • To utilize the I-94 without an EAD as evidence of work authorization, the guidance from USCIS states that the I-94 must bear a notation indicating the individual is a qualifying E, or L spouse. CBP and USCIS could take up to 120 days to modify the I-94s.
    • Until that time, E and L spouses should follow the same guidelines as H spouses with EAD extensions pending.

My H-4 and H-4 EAD extension are still pending. Can I begin working again?

    • If the spouse filed an I-539 application to extend H-4 status concurrently with an EAD application, the H-4 spouse would only qualify for the auto-extension of the EAD if they have time remaining on their existing I-94.

CHALLA TIP: If the primary H-1B has already been approved and extended (perhaps after a premium upgrade), the H-4 dependent spouse can depart the country and then re-enter on the H-4 visa, using the H-1B approval notice to obtain an I-94 with longer validity. The individual would then be eligible for an automatic extension of up to 180 days or the earlier of the scenarios described below. Check out our Travel FAQs & New Guidance on COVID-19 Vaccination Requirements before planning your trip.

When will the automatic extensions be valid? 

  • Automatic extensions for H-4, E, or L dependent spouses will be applicable if they properly file an application to renew their EAD before the expiration date (if applicable) and they have an unexpired I-94 showing their valid status.
  • The automatic extension will continue until the earlier of:
    • The end date on the Form I-94 showing valid status
    • The approval or denial of the EAD renewal application, or
    • 180 days from the date of expiration of the previous EAD

Wondering if you qualify for an automatic extension? Email us at info@challalaw.com with your questions.

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DHS Adds Countries to H-2A and H-2B Eligibility List

From DHS, 11/09/2021

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has announced the lists of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in the next year. The notice listing the eligible countries will be published in the Federal Register on Nov. 10, 2021.

For the next year, the secretary of homeland security, with the concurrence of the secretary of state, has decided to:

  • Add Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for  the H-2A program), Haiti, Mauritius, and Saint Lucia to the list of countries eligible to participate in the H-2A and H-2B programs; and
  • No longer designate Moldova as an eligible country for the H-2A visa program because it no longer meets the regulatory standards for that program. However, Moldova’s eligibility for the H-2A program remains effective until Jan. 18, 2022.

DHS maintains its authority to add countries to the eligible countries lists at any time, and to decide not to redesignate any country at the end of the one-year period following the date of publication of a country’s last designation in the Federal Register, should DHS and DOS determine that a country fails to meet the requirements for continued designation. Examples of factors that could result in the exclusion of a country or the removal of a country from the list include fraud, abuse, denial rates, overstay rates, human trafficking concerns, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country that are contrary to U.S. interest.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS approves H-2A and H-2B petitions only for nationals of countries that the secretary of homeland security has designated as eligible to participate in the programs. However, USCIS may approve H-2A and H-2B petitions, including those that were pending as of the date of the Federal Register notice, for nationals of countries not on the list on a case-by-case basis only if doing so is determined to be in the interest of the United States.

Effective Nov. 10, nationals of the following countries are eligible to receive H-2A and H-2B visas:

Andorra Fiji Malta Saint Lucia
Argentina Finland Mauritius San Marino
Australia France Mexico Serbia
Austria Germany Moldova* Singapore
Barbados Greece Monaco Slovakia
Belgium Grenada Mongolia** Slovenia
Bosnia and Herzegovina Guatemala Montenegro Solomon Islands
Brazil Haiti Mozambique South Africa
Brunei Honduras Nauru South Korea
Bulgaria Hungary The Netherlands Spain
Canada Iceland New Zealand St. Vincent and the Grenadines
Chile Ireland Nicaragua Sweden
Colombia Israel North Macedonia Switzerland
Costa Rica Italy Norway Taiwan***
Croatia Jamaica Panama Thailand
Republic of Cyprus Japan Papua New Guinea Timor-Leste
Czech Republic Kiribati Paraguay* Turkey
Denmark Latvia Peru Tuvalu
Dominican Republic Liechtenstein Philippines** Ukraine
Ecuador Lithuania Poland United Kingdom
El Salvador Luxembourg Portugal Uruguay
Estonia Madagascar Romania Vanuatu

*Moldova and Paraguay are eligible to participate in the H-2A program but they are not eligible to participate in the H-2B program. Moldova’s eligibility for the H-2A program remains effective until Jan. 18, 2022.

**Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

***Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

This notice does not affect the status of H-2 beneficiaries who currently are in the United States unless they apply to extend their stay in H-2 status on the basis of a petition filed on or after the date of publication of the Federal Register notice. Similarly, this notice would not affect the eligibility of an H-2 beneficiary to apply for an H-2 visa and/or seek admission to the United States based on an H-2 petition approved prior to the date of publication of the Federal Register notice. It does apply to nonimmigrants changing status in the United States to H-2A or H-2B. Each country’s designation is valid from Nov. 10, 2021, until Nov. 9, 2021.

For more information on these programs, see the H-2A Temporary Agricultural Workers and H-2B Temporary Non-Agricultural Workers pages on the USCIS website.

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Travel FAQs & New Guidance on COVID-19 Vaccination Requirements

DHS Releases Details on Easing Travel Restrictions & Travel FAQs

On Friday, DHS released new details for travelers who plan to enter the U.S. at land ports of entry and ferry terminals. Previously non-citizen travelers were permitted to enter for essential travel, but with the new requirements, non-essential travelers can enter the U.S. provided they are fully vaccinated and can provide proof of COVID-19 vaccination status. DHS also notes that unvaccinated travelers may continue to cross the border for essential travel, including lawful trade, emergency response, and public health purposes.

DHS states that “Starting November 8, when arriving at a U.S. land POE or ferry terminal, non-citizen travelers should be prepared to (1) provide proof of COVID-19 vaccination, as outlined on the Centers for Disease Control (CDC) website; and (2) verbally attest to their reason for travel and COVID-19 vaccination status during a border inspection.”

The requirements are consistent with the Proclamation issued on October 25, 2021, suspending and limiting entry for nonimmmigrants seeking to enter the U.S. by air travel who are not fully vaccinated against COVID-19. The Presidential Proclamation and CDC order do not apply to U.S. citizens, U.S. nationals, U.S. lawful permanent residents and immigrants. Certain air crew members may also be exempt.

Air and Land Travel FAQs

Who is considered fully vaccinated?

You are considered fully vaccinated:

  • 2 weeks (14 days) after your dose of an accepted single-dose COVID-19 vaccine.
  • 2 weeks (14 days) after your second dose of an accepted 2-dose series COVID-19 vaccine; or
  • 2 weeks (14 days) after you received the full series of an “active” (not placebo) COVID-19 vaccine in the U.S.-based AstraZeneca or Novavax COVID-19 vaccine trials
  • 2 weeks (14 days) after you received 2 doses of any “mix-and-match” combination of accepted COVID-19 vaccines administered at least 17 days apart*

If you don’t meet these requirements, you are NOT considered fully vaccinated.

Example: If your last dose was given at any time on October 1st, you would be eligible to travel on October 15th or later to meet the 14-day requirement. If your flight departs on October 14th, you will be asked to reschedule after the full 14 days have passed.

What are considered acceptable COVID-19 vaccines?

CDC has not recommended the use of mix-and-match COVID-19 vaccine primary series. However, such strategies are increasingly common in many countries outside of the United States. Therefore, for the purpose of interpreting vaccination records for travel to the United States, CDC will accept combinations of accepted COVID-19 vaccines.

How can I prove that I have been vaccinated for COVID-19? 

The CDC has provided several options for proving your COVID-19 vaccination status: verifiable records, non-verifiable paper records, and non-verifiable digital records.

  • Verifiable records (digital or paper): could be a vaccination certificate with a QR code (which links to the information confirming the credential was generated from an immunization record in an official database and is protected from tampering) or a digital pass via a smartphone application with a QR code
  • Non-verifiable paper records: printout of COVID-19 vaccination record or vaccination certificate issued at a national or subnational level or by an authorized vaccine provider, such as the CDC vaccination card
  • Non-verifiable digital records: digital photos of vaccination card or records, downloaded vaccine record or certificate from official source (public health agency, government agency, or other authorized vaccine provider) or a mobile phone application without a QR code

All COVID-19 vaccination records must have:

  • Personal identifiers (at least full name and date of birth) that match the passenger’s passport or other travel documents,
  • Name of official source issuing the record (public health agency, government agency, or other authorized vaccine provider), and
  • Vaccine manufacturer and date(s) of vaccination.

Procedures for Travelers Who Qualify for Exceptions

Categories of noncitizen, nonimmigrants that meet the criteria for an exception under the proclamation and CDC’s order include:

  • Persons on diplomatic or official foreign government travel
  • Children under 18 years of age
  • Persons with documented medical contraindications to receiving a COVID-19 vaccine
    • Must show a letter from a licensed physician on official letterhead with contact information that clearly states the medical condition and the vaccine product
    • Example: immediate or severe allergic reaction after a previous dose or a component of a COVID-19 vaccine or known allergy to a component of the vaccine
    • Check with the airline to determine if a translation of the letter is necessary for their review
  • Participants in certain COVID-19 vaccine trials
  • Persons issued a humanitarian or emergency exception
    • Emergency medical evacuations or other situation where the individual is unable to access or complete the vaccination requirement before travel.
    • Contact the U.S. embassy or consulate in or nearest to the country from which they are departing for the United States. The embassy will transmit the information to the CDC for consideration.
    • You can contact the nearest U.S. embassy or consulate, or call these numbers at the U.S. Department of State headquarters: From the United States and Canada: 888-407-4747; from overseas: 202-501-4444
  • Persons with valid visas [excluding B-1 (business) or B-2 (tourism) visas] who are citizens of a foreign country with limited COVID-19 vaccine availability
  • Members of the U.S. Armed Forces or their spouses or children (under 18 years of age)
  • Sea crew members traveling pursuant to a C-1 and D nonimmigrant visa
  • Persons whose entry would be in the national interest, as determined by the Secretary of State, Secretary of Transportation, or Secretary of Homeland Security (or their designees)

If you are a noncitizen, nonimmigrant who does not fall under any of these exceptions, you must show proof of being fully vaccinated before boarding a flight to the United States.

If you qualify for an exception, you must attest that you will test for COVID-19 within 3 to 5 days after your arrival in the U.S. unless you have documentation of recovery from COVID-19 from within the past 90 days. You must also self-quarantine for 7 days, even if your COVID-19 viral test is negative and you must self-isolate if the test is positive or if you develop COVID-19 symptoms.

Depending on the category of the exception, the CDC notes that if you plan to stay in the U.S. for longer than 60 days, you may also be required to attest that you will agree to be vaccinated against COVID-19 and you have arranged to become fully vaccinated within 60 days of your arrival or as soon thereafter as is medically appropriate. Children too young to be vaccinated will not attest to the vaccination requirement, but parents or another authorized person will have to attest on behalf of any passenger who is unable to sign their own attestation on the other requirements.

Please note: there are no exceptions under the Presidential Proclamation and CDC’s Order for religious reasons or other moral convictions.

Additional Travel Considerations

As non-essential travel resumes, DHS expects that travel volumes and wait times will increase at border crossings and other ports of entry.

  • Plan for long lines and increased wait times when scheduling travel.
  • Consider facial biometrics and the CBP mobile app to access CBP services.
  • Keep COVID-19 documentation and valid travel documents readily accessible for all members of your party.
  • Check that COVID-19 documentation is accurate and matches your passport and other travel documents.

If you have any additional questions, please contact us at info@challalaw.com.

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Market Analyst H-1B Denied? You May Be Able to Appeal 

Market Analyst H-1B Denied? You May Be Able to Appeal 

From USCIS, 10/28/2021

USCIS reached a settlement agreement (PDF, 268.06 KB) [PDF] in the case of MadKudu Inc., et al. v. U.S. Citizenship and Immigration Services, et al., No. 20-cv-2653 (N.D. Cal.). On Oct. 19, 2021, the U.S. District Court, Northern District of California, San Jose Division, granted final approval of the settlement agreement. This agreement outlines new, overarching guidance for adjudicating pending or future H-1B petitions for market research analysts.

Additionally, the agreement allows class members to submit a Form I-290B, Notice of Appeal or Motion, to request that certain denied Forms I-129, Petition for a Nonimmigrant Worker, seeking H-1B classification for a market research analyst be reopened and adjudicated per the terms of the settlement agreement. No fee will be charged for such a request. Class members have until April 26, 2022 to submit a Form I-290B.

Class members eligible to submit a Form I-290B are those that:

  • Filed a Form I-129 H-1B petition between Jan. 1, 2019 and Oct. 19, 2021, for a market research analyst.
  • USCIS denied the petition based on a finding that the Occupational Outlook Handbook (OOH) entry for a market research analyst did not establish that the occupation is a specialty occupation, and thus did not satisfy 8 CFR 214.2(h)(4)(iii)(A)(1).
  • If not for this finding, the petition would have been approved.
  • There is any amount of time remaining on the period specified in the certified Labor Condition Application (LCA) originally submitted with the underlying Form I-129 at the time that the Form I-290B is filed.

Class members whose eligible Form I-129 was denied may submit their Form I-290B (without fee) on or before April 26, 2022, to have their reopening request and, if eligibility is established, their underlying I-129 H-1B petition adjudicated per the terms of the settlement agreement.

USCIS will make a decision on all eligible, timely-filed reopening requests within 90 days of receipt of the physical file at the adjudicating office. USCIS will attempt to prioritize reopening requests for petitions with LCAs expiring less than 90 days after the Form I-290B is properly filed with USCIS.

If USCIS determines that the underlying petition is not eligible for this reopening process, in accordance with the bullets above (for example, you are not a class member eligible to submit a Form I-290B under the settlement agreement), we will reject the Form I-290B.

Filing Instructions 

All Forms I-290B must be submitted to the Nebraska Service Center, on or before April 26, 2022, at the addresses below.

USPS FedEx, UPS, and DHL Deliveries
USCIS Nebraska Service Center
Attn: Madkudu Project
P.O. Box 87129
Lincoln, NE 68701
USCIS Nebraska Service Center
Attn: Madkudu Project
850 ‘S’ Street
Lincoln, NE 68508

When submitting Form I-290B, you should:

  1. Include a cover sheet to clearly identify that the Form I-290B is filed by a claimed member of the class.
  2. Indicate on the cover sheet and Form I-290B the name of the office (name of the Service Center or Administrative Appeals Office (AAO)) that made the last adverse decision.
  3. Demonstrate class membership by submitting a copy of USCIS’ denial of the underlying H-1B petition (if you appealed to, and had your appeal dismissed by the AAO, you should submit a copy of the AAO decision instead of, or in addition to, the service center denial). The denial of the original H-1B petition should show that:
    • The petition was filed on or after Jan. 1, 2019, through Oct. 19, 2021, (for cases in which the denial does not include the filing date of the petition, you should submit a copy of USCIS’ receipt notice for the petition).
    • USCIS found that the job fell within the market research analyst occupation;
    • USCIS considered the OOH entry for market research analysts;
    • USCIS found that the market research analyst occupation was not a specialty occupation under the first regulatory criterion at 8 CFR 214.2(h)(4)(iii)(A)(1); and
    • The sole basis for the denial was that the position was not within a specialty occupation.
  4. Demonstrate (for example, by submitting a copy of the LCA filed with the denied petition) that there is any amount of time remaining on the period specified in the certified LCA at the time that the I-290B is filed.
  5. State in the reopening request that you request reopening.
  6. Provide a receipt number for the underlying Form I-129 petition.
  7. Confirm that the offer of employment as stated in the underlying Form I-129 petition remains valid.
  8. Indicate if you want a new start and/or end date for the validity period (as long as the new date(s) falls within the period in the certified LCA previously submitted with the petition).

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USCIS Notice: Updated Guidance for T Visas

From USCIS (10/20/2021):

USCIS announced that it is issuing updated policy guidance in the USCIS Policy Manual regarding applications for T nonimmigrant status (or T visas) for victims of severe forms of trafficking in persons.

Policy Highlights
This updated and comprehensive guidance:

  • Provides updated and consolidated information on eligibility requirements, admissibility determinations, evidentiary standards, burdens of proof, travel considerations, and confidentiality protections for T visa applicants.
  • Clarifies that the age-based exemption from the requirement to comply with reasonable requests for assistance from law enforcement applies based on the victim’s age at the time of victimization.
  • Explains how USCIS evaluates the connection between the original victimization and the applicant’s continuing presence in the United States when evaluating the physical presence eligibility requirement
  • Clarifies how USCIS evaluates involuntary servitude claims, including conditions of servitude induced by domestic violence, as well as victimization that may occur during a voluntary smuggling arrangement.
  • Defines the concept of harboring.
  • Explains that USCIS is adopting the decision issued by the Ninth Circuit in Medina Tovar v. Zuchowski, a case involving adjudication of petitions for U nonimmigrant status, for nationwide application in T visa adjudication. Therefore, when evaluating a spousal or stepparent and stepchild relationship between the principal applicant and the qualifying family member, USCIS evaluates whether the relationship existed at the time the principal application was favorably adjudicated, rather than when the principal application was filed.
  • Clarifies that principal T-1 nonimmigrants seeking to adjust status may present their Arrival/Departure Record (Form I-94) reflecting their most recent validity period of T-1 nonimmigrant status, along with the Form I-797 receipt notice, as evidence of employment authorization for 24 months from the expiration date on the Form I-94, unless the Form I-485 is denied or withdrawn.

Background
Congress enacted the Trafficking and Violence Prevention Act of 2000 to protect victims of trafficking. T nonimmigrant status serves the dual intent of protecting noncitizen victims of trafficking and strengthening the ability of law enforcement to detect, investigate, and prosecute acts of trafficking.

More Information
The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic. Find the updated guidance at USCIS Policy Manual – Volume 3: Humanitarian Protection and Parole, Part B, Victims of Trafficking and Volume 9: Waivers and Other Forms of Relief, Part O, Victims of Trafficking.

Visit our Victims of Human Trafficking: T Nonimmigrant Status page for more information.

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Tracking Your Green Card or EAD

How to Track Delivery of Your Green Card, Employment Authorization Document (EAD), and Travel Document

Expecting to receive your green card, EAD, or Advance Parole travel document? You may be able to view tracking information online. USCIS advises that you:

1.    Sign up for a Case Status Online account to get automatic case updates, including your U.S. Postal Service (USPS) tracking number when we mail your card or travel document.

2.    Register for Informed Delivery through USPS to get daily images of mail being sent to you. With Informed Delivery, you can:

  • Automatically track the packages you’re expecting
  • Set up email and text alerts
  • Enter USPS Delivery Instructions™ for your mail carrier

If your USPS tracking information shows your package was delivered but you have not received it, contact your local post office immediately. Remember, USCIS mails your card or travel document to the address you provided on your application (unless you told us to mail it your representative on Form G-28, Notice of Entry or Appearance as Attorney or Accredited Representative).

If your mailing address changes after you file your application, you must update your address with USCIS and USPS as soon as possible. We recommend you use the USPS Look Up a ZIP Code tool to ensure that you give USCIS your full address using the standard abbreviations and formatting recognized by USPS.

If you don’t update your address promptly, your case could be delayed, your document(s) could get lost, and you may need to reapply and pay the fee again. You can continue to use Informed Delivery to track and manage the delivery of your package.

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Proposed Immigration Language for Green Card Fees & Issuance

UPDATE: Senate Parliamentarian Rejects Option for Including Immigration Proposals in Reconciliation Bill

The House Judiciary Committee approved some immigration language to include with the upcoming budget reconciliation bill, which would allow some applicants the ability to pay an extra fee to be issued their green card. On September 20, 2021, the Senate’s nonpartisan parliamentarian determined that Democrats could not include the language in the bill, calling the language “by any standard a broad, new immigration policy.” She noted that these provisions would not be allowed in the bills if the budget effect is “merely incidental” to the overall policy impact.

Although a House committee approved the language, there are still several steps before the bill is brought to the House and Senate for a vote. If passed by both branches of Congress, the bill would be sent to the President for signature before implementation. Below is a summary of the proposed language, but please note this language could change significantly before potential approval.

Summary of Immigration Language

  • House Judiciary Committee approves immigration language for the reconciliation bill
    • New section in INA that would allow anyone in 4 categories to adjust status if they pay a supplemental fee of $1,500 and pass security/law enforcement checks and medical exam
      • Categories are Dreamers, essential workers, TPS, DED
      • Essential workers:
        • continuously physically present in the US since 1/1/2021
        • Demonstrated a consistent record of earned income in the US in an occupation listed in DHS’ Advisory Memorandum on Ensuring Ability to Work During the COVID from 1/31/2020 to 8/24/2021 Essential Critical Infrastructure  Workers
      • Recapture of unused immigrant visa numbers
        • Recapture of family and employment visas that went unused between 1992 and 2021 and automatically recapture unused numbers going forward
        • DV visas remain available from 2017 to 2021 if visa refusal was due to Trump visa ban or COVID slowdowns
      • DHS may accept AOS if the beneficiary of an approved I-130, pays a supplemental fee of $1,500 plus $250 for each derivative beneficiary and is otherwise eligible to adjust
        • DHS may exempt applicants from family numerical limits if they have a priority date more than 2 years old and
          • Applying in FA-1, FA-3, FA-4 and pay $2,500
          • EB-1, EB-2, or EB-3, and pay $5,000
          • EB-4 and pay fee of $50,000
        • Would take effect 180 days after the date of enactment or May 1, 2022, whichever is earlier
        • Additional supplemental fees
          • Family 1st, 2nd, 3rd, and 4th green card petitions shall have a new $100 supplemental fee. EB-1, 2, and 3 petitions shall be accompanied by a new $800 supplemental fee. EB-5 petitions shall be accompanied by a new $15,000 supplemental fee.
        • USCIS shall be appropriated $2.8 billion to increase their capacity to handle the new programs under 60001 and 60003.

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U.S. Announces Travel Restrictions to Be Lifted

U.S. Announces Travel Restrictions To Be Lifted

White House pandemic coordinator, Jeff Zients, announced a new international air travel system that will allow travelers abroad to enter the U.S. once again. Zients stated that the new system “enhances the safety of international air travel” and would allow COVID-19-based travel bans to end in early November for those who are fully vaccinated against the virus. The existing requirements for COVID-19 tests will remain, even for fully vaccinated travelers. Individuals wishing to travel to the U.S. need to show proof of a negative test within three days of their planned entry to the U.S. Masks will still be required, but quarantine mandates are not expected.

Americans who are abroad will have stricter testing requirements if they remain unvaccinated. The individuals may also be contacted by officials after arrival to see if they are experiencing any COVID-19 symptoms.

The Centers for Disease Control and Prevention is expected to announce a process for airlines to help implement a contact-tracing system by collecting phone numbers and email addresses of travelers. Zients stated: “This will enable CDC and state and local public health officials to follow up with inbound travelers and those around them as someone has potentially been exposed to COVID-19 or other pathogens.” The CDC will also release the list of vaccinations that will be acceptable before the new policy goes into effect.

Are you currently in a country subject to travel bans? 

If you have an urgent need to travel in the next few weeks, the existing travel restrictions will still be in place. You can request an emergency appointment and National Interest Exception if you qualify. However, the timeline for getting these approvals may be longer than a few weeks and therefore moot after the restrictions are lifted in November.

Check with your medical provider to determine if international travel and the current requirements are recommended for you. Note that some of the most popular vaccines require two doses, several weeks apart. If you wish to travel in November, consider scheduling your vaccination appointments early so that all required doses can be completed. If the vaccines available to you abroad are not currently approved for use in the U.S., you should check the CDC list of approved vaccines after it it is released (expected soon).

The consular posts are still subject to significant backlogs for visa appointments as posts are subject to country-specific operating conditions. Although you may be allowed to enter the U.S., obtaining visa stamping in a timely manner is expected to remain challenging in the coming months.

Resources

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DOS Announces Student Interviews May Be Waived

DOS Announces Student Interviews May Be Waived

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

Challa Law Resources:

September 14, 2021 Update from the Department of State

International students are now and always have been among the Department of State’s highest priorities.  The Department recognizes the important contributions these students make to our college and university campuses; the positive impact they have on U.S. communities; and the rich benefits of academic cooperation in increasing cultural understanding, furthering research, knowledge, and supporting U.S. diplomacy.  The Department is committed to supporting the U.S. academic community, while administering U.S. law.  The Department also recognizes this is a critical period of time for students seeking to begin their studies at academic institutions across the United States.

To that end, the Deputy Secretary for Management and Resources, under the authority delegated to him by the Secretary of State, in consultation with the Department of Homeland Security, has authorized consular officers through the end of 2021 to expand the categories of F, M, and “academic J visa applicants” (students, professors, research scholars, short-term scholars, or specialists) whose applications can be adjudicated without an in-person interview in their consular district of residence, with certain exceptions.  Consular officers may, if they so choose, and pursuant to local conditions, now waive the visa interview requirement for F, M, and academic J visa applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time F, M, and academic J visa applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided they have no apparent ineligibility or potential ineligibility.  This applies only to non-U.S. citizens who are nationals of eligible countries.  Details about country eligibility and necessary procedures will be available on the website of the relevant embassy or consulate.  Applicants from non VWP countries whose prior visa was issued when they were less than 14 years of age, may need to submit biometric fingerprints, but can still be approved for an interview waiver.

Secretary of State Antony Blinken has previously found F, M, and academic J visa applicants eligible for National Interest Exceptions (NIEs) under Presidential Proclamations that suspend entry of individuals present in one of the 33 countries subject to COVID-19 travel restrictions (see https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/covid-19-travel-restrictions-and-exceptions.html).  Students seeking to apply for a new F-1 or M-1 visa should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel.  Students and academics traveling on J-1 visas must contact the nearest embassy or consulate prior to travel to receive an NIE.

Consular resources and local government restrictions vary widely, and each consular section is continuously reviewing its capacity to adjudicate visa applications during this worldwide pandemic and as we address global issues and competing priorities.  We encourage applicants to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview.

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

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