USCIS EB-5 Alerts

USCIS EB-5 Alerts

Investment Level Alert

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

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

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

EB-5 Immigrant Investor Regional Center Program Alert

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

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

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

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

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

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

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DOS Announces New Gender Marker & Self-Selection for Passports, CRBAs

The Department of State announced that passport applicants can now self-select their gender, without providing medical documentation if their gender identity doesn’t match their birth certificate or other documents. The DOS also stated that the Department is evaluating how to add an additional “gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA” and notes that the “process of adding a gender marker for non-binary, intersex, and gender non-conforming persons to these documents is technologically complex and will take time for extensive systems updates.  The Department will also be working closely with its interagency partners to ensure as smooth a travel experience as possible for the passport holder.”

Department of State Frequently Asked Questions (FAQs) on Selecting Your Gender Marker & Passport Applications

How do I apply for my first passport or replace my full-validity passport?

If you are applying for your first passport, or if you already have a full-validity passport, use Form DS-11 and select “M” or “F” for your gender. You do not need to provide a medical certification or physician’s letter, even if the gender you select on Form DS-11 does not match the gender on your previous passport or other documents. Follow the steps listed on our Apply in Person page. Please note: we are in the process of updating our Form Filler and Form Eligibility Wizard tools to incorporate these changes. Please download your form and complete it by hand in black ink.

How do I replace my limited-validity passport?

Under our previous passport policies, if you were in the process of transitioning to a new gender when you applied for your passport, you may have received alimited-validity passport. We no longer require medical certification or a physician’s letter as evidence of a gender transition. You can now self-select your gender on your passport form, and you are eligible to apply for a full-validity passport.

To replace a limited-validity passport with a full-validity passport, submit Form DS-5504. To use this form, you must apply within two years of your previous passport’s issuance date. You do not have to pay fees unless you are requesting optional expedited service. If your limited-validity passport was issued more than two years ago, please use Form DS-11 and follow the steps on our Apply In Person page.

Please note: we are in the process of updating our form Filler and Form Eligibility Wizard tools to incorporate these changes. Please download your form and complete it by hand in black ink.

Why is the Department of State making this change?

We are committed to promoting the freedom, dignity, and equality of all people – including LGBTQI+ persons.

We are taking further steps toward demonstrating this commitment to better serve all U.S. citizens, regardless of their gender or sex. You can now self-select the binary gender you want printed on your U.S. passport. We are also beginning the process of updating our procedures for the issuance of U.S. passports and Consular Reports of Birth Abroad (CRBAs) with a gender marker for non-binary, intersex, and gender non-conforming persons. We will post updates on this webpage when that gender marker is available. You cannot apply for a passport with a non-binary, intersex, or gender non-conforming gender marker at this time.

What does it mean to self-certify or self-select my gender?

It means you can select the gender you would like us to print on your U.S. passport by simply checking “M” or “F”. You no longer need to provide medical certification or a physician’s letter when applying for a U.S. passport in a gender that does not match the gender on your citizenship evidence or photo ID.

Do I need to have the gender on my birth certificate and/or driver’s license changed before I can get it changed on my passport?

No, the gender on your citizenship evidence and photo ID does not have to match the gender you select on your passport application. However, the photo you submit with your passport application must look similar to the photo on your ID. Learn more about Passport Photos before you apply.

Do I need to apply using Form DS-11?

Yes. The first time you are changing your gender in your U.S. passport, you must use the Form DS-11. When you renew your passport, if the gender you are requesting matches the gender on your previous passport, you can use Form DS-82. Children under age 16 must always apply using Form DS-11 and appear in-person with both parents or legal guardians.

How do I update the gender on a passport for my child?

The requirements to update your child’s gender are the same as the requirements for an adult. Both parents or legal guardians must provide consent when applying for a child under age 16.

Do I have to submit a new photo when applying for a passport?

Yes. Your new photo must look similar to your current appearance and meet our passport photo requirements.

If I have a court order approving a change in my gender, do I need to submit that with my application?

A court order approving a change in gender is no longer a requirement to apply for a U.S. passport. It is not necessary anymore.

I followed the requirements on this page, but I got a letter requesting more information. What do I do now?

Please follow the instructions in the letter. If you have further questions, go to our Respond to a Letter or Email page or contact the National Passport Information Center at 1-877-487-27781-888-874-7793 (TDD/TTY).

What if I want to change my name in my U.S. passport?

You may change or correct a passport by following the steps provided on our website.

If I identify neither as male nor female, or I have a birth certificate, driver’s license, court order or other documents in a non-binary gender, can I have a passport issued with a non-binary gender marker or no gender marker?

No, not at this time. We are beginning the process of updating our procedures for the issuance of U.S. passports and CRBAs with the goal of offering a gender marker for non-binary, intersex, and gender non-conforming persons. The process of adding a gender marker for non-binary, intersex, and gender non-conforming persons to these documents is complex and will take time for extensive updates to our information technology (IT) systems. We cannot provide an exact timeline for when we will begin offering a gender marker for non-binary, intersex, and gender non-conforming persons. Applicants should not apply for a passport with a non-binary, intersex, or gender non-conforming gender marker as we cannot issue one to you at this time. Applicants who apply for a passport with a non-binary, intersex, or gender non-conforming gender marker will be given the option to select from currently available markers of “M” for male or “F” for female, or to place their application on hold until we can offer a non-binary, intersex, or gender non-conforming gender marker.

I had a bad customer experience. How can I complain?

To make a complaint, you can call the National Passport Information Center at 1-855-865-7755 or submit a complaint online through our Customer Survey.
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National Interest Exceptions: Multiple Entries Allowed

The Department of State recently extended the validity of National Interest Exceptions (NIEs) for travelers from a single entry, to a multiple entry exception, valid for 12 months from the date of approval. The NIE approval is valid for multiple entries, only if they are used for the purpose under which they were granted.

The extension applies to travelers subject to geographical COVID-19-related travel restrictions under Presidential Proclamations 9984, 9992, 10143, 10199, and any subsequent proclamations related to the spread of COVID-19. The new guidelines apply to individuals who currently have approved NIEs or who were granted NIEs in conjunction with a visa application.

As a reminder, students holding F or M visas and travelers with immigrant or fiancé(e) visas have automatically been granted NIEs and do not need to apply to obtain an NIE in advance from a consular section. Students from the countries affected by the ban are eligible for NIEs if their programs begin on or after August 1, 2021.

The Department of State advises:

Travelers should contact the nearest U.S. embassy or consulate before traveling if they have not previously been approved for an NIE and have a valid visa in the appropriate class or have a valid ESTA authorization for travel under the Visa Waiver Program and seek to travel for purposes consistent with ESTA authorization. If an NIE is approved, they may travel on either a valid visa or ESTA authorization, as appropriate. Each approved NIE is valid for 12 months from the date of approval and may be used to travel to the United States multiple times for the purpose indicated in the approved NIE.

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DOS Q & A on July Visa Bulletin

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.

Highlights

  • Family preference dates will advance through September and overseas processing at consular posts is improving.
  • Employment preference dates will advance, but “slowing the rate of future advancements helps minimize the chances of any potential retrogression further down the road in fiscal 2022.”
  • No retrogressions are expected of employment Final Action Dates in the foreseeable future.
  • EB-5 China Final Action Dates will remain the same, but could move in October or November.
  • The fiscal year 2022 limit is going to be at least 290,000, a second all-time high in a row.
  • If holding multiple I-140s, such as EB-2 and EB-3, applicants are only counted in one category because they would only be reported to the Department of State when documentarily qualified. USCIS requests a visa number from DOS by providing the applicant’s A number, priority date, visa category, and foreign state. DOS will only act to allocate a number to one individual with that A number.

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

Q & A with Charlie Oppenheim

Please note: Questions and answers have been paraphrased in some cases and should not be interpreted as verbatim quotes.

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

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

Yes, the improving conditions have allowed increased overseas processing, therefore the July dates were advanced at an accelerated rate in most preferences and for most countries, with the movement of the dates through September might be somewhat more limited. The Mexico dates were advanced at a very fast pace for the family categories and that was because number use in recent months has not been as much as anticipated but based on the previous movement of the dates and we wanted to make sure that we maximized number use. The Philippine family dates were basically held with the exception of the fourth preference because there, the previous movement of the Final Action Dates had generated sufficient numbers under the annual limits so therefore we did not need to continue moving any except as I said the fourth preference.

In the July bulletin the worldwide family fourth preference date is listed as February 8, 2007. What does that mean?

Applicants who have submitted all of the required documentation that has been requested of them and have a priority date before February 8, 2007 would be eligible to have their final interviews scheduled either at an overseas post or processed by the USCIS offices here in the states. Whenever you see a priority date listed, it represents the priority date of the first applicant who we could not accommodate for processing during that applicable month. It’s important to remember that not everybody with a priority date earlier than the listed Final Action Date has been processed. Applicants process their cases at their own pace and convenience and therefore fluctuations in demand sometimes impact future movement of the dates, as is evidenced by the Philippine dates basically being held for July.

Do you expect that the employment preference dates will continue to advance through September?

I believe that they will have some advancement through September but at this time I really can’t estimate how fast that will be, but I do not expect there to be any retrogressions of employment Final Action Dates in the foreseeable future and managing and slowing the rate of future advancements helps minimize the chances of any potential retrogression further down the road in fiscal 2022.

Do you expect that any of the family-sponsored or employment-based application filing dates will retrogress during FY 2022?

No, I do not expect that any retrogression of the Application Filing Dates or Final Action Dates will occur in the foreseeable future. Some of the dates will be advanced in the coming months, but at this time, as I mentioned earlier, it’s not possible to really estimate the rate at which they will advance. It’s important to remember that the Application Filing Dates are the dates which I believe the Final Action Dates will reach at some point during Fiscal 2022.

Can you explain what it means when current is listed at in the Visa Bulletin?

If there’s sufficient numbers in a particular category to satisfy all of the reported demand at the time I’m making the determination of the upcoming month’s Final Action Dates, then the category can be considered current. For example, if it if I determine that I have 3,000 numbers that are available for use during the month of July and there’s only demand for 1 000 applicants then I can list the category as being current.

When do you expect the consulates around the world to be fully functional like before the COVID-19 pandemic?

This is the $64,000 question everybody wants to know the answer to and it really is not possible to provide an answer. The overseas posts have been slowly returning to some level of operational status as their local conditions permit, but because of the constantly changing status, the best advice it can offer is for the listeners to monitor the operational status of the post which is going to be responsible for processing their case and you can find that on our travel.state.gov website. That will have typically the latest and greatest information on each post’s status.

Note from consular officer: We’re definitely updating travel.state.gov on a regular basis with any sort of information that’s coming forward regarding policy or visa services.

Why doesn’t the State Department provide estimated wait times before a visa will be available for applicants in the various categories?

In a normal processing year, I tried to provide such updates about every three to five months and I put them in the Visa Bulletins with an item regarding visa availability and that usually covers what will happen in the next three to five months. Like I said earlier, it’s important for people to remember that the applicants become qualified at their own pace and therefore it can have some fluctuations in the dates. I really haven’t provided updates during the last part of fiscal year 2020 or for the fiscal year 2021 because of the constantly changing situation or processing capability at both our overseas post and in the USCIS offices.

When determining number use under the various annual limits, are only the principal applicants counted?

No, there is both the principal applicant and all derivatives – a spouse, any children, are each counted against the numerical annual limits.

The EB-5 China application Filing Date remains the same as it was in October 2020. Do you expect any forward movement in that date prior to the end of the fiscal year?

No, I do not expect any forward movement of the China application date before September. There is likely to be some movement in October but right now we have sufficient demand to utilize all available numbers under what the China limit would be, and unless larger amounts are processed during the summer, we will have a sufficient number moving into fiscal year 2022. Again, we may see some movement of that EB-5 Application Date for China in the month of October or November.

Do you expect that the fiscal year 2021 family, employment, and diversity visa annual limits will be reached?

Based on the impact with the COVID-19 issues we’ve had on the processing of cases, it’s really too early to say what number use might be, but I can say that both the family and employment Final Action Dates and the diversity visa ranked cutoff numbers continue to be established in an attempt to generate sufficient demand to maximize number use under the various annual limits. We’re following the same process in that determination that we would during a “normal” processing year.

Why would either the State Department or USCIS request that an applicant submit or update information if their priority date is not yet eligible for processing?

Well, the State Department uses the Application Filing Dates for our National Visa Center to contact applicants that may become eligible for final action on their case within the next eight to 12 months and they request the applicants to assemble and submit certain required documentation so that the applicant can become what we call documentarily qualified after a review of all the documents. Then that demand is reported to the visa office for consideration in the movement of the upcoming month’s Final Action Dates. The USCIS may request that adjustment of status applicants whose case had previously been processed but not finalized. For example, one of the cases is when the Final Action Date may have retrogressed, the applicant was in some stage of processing when the date retrogressed, so they could not be finalized. So the Immigration Service may when they feel that the applicant is nearing eligibility to be processed once again, they may request the applicant provide certain required information, such as a medical, etc. to update, so that it can be processed when the date does advance.

In both instances having all the required information and current information, for example again, the medicals, can expedite the final processing of the case once a visa number does become available. It’s important for    applicants to remember that they should not wait until their turn has come up because processing can take some time, so they’re better off if they go ahead and provide all the requested information in advance so that their case can be scheduled is in an expeditious manner.

With the slow pace of adjudications in the first two quarters of this fiscal year, do you foresee that the dates in the Filing chart will reach the dates in the Final Action chart by the end of the fiscal year?

I think that most of the Application Filing Dates that were announced and posted in October have already been reached in most instances. Any of the Application Filing Dates that are changing now or in recent months, there should be no reason to expect that they’ll be reached this fiscal year, but eight to twelve months down the road they could be reached. Again, the Application Filing Dates are always where we think the Final Action Dates will be 8 to 12 months after we have originally posted those Application Dates.

Does a case enter the queue for being interviewed after being documentarily qualified, even if their priority date is not current?

Yes, and that’s what I said it’s very important for me to have maximum visibility of potential demand for applicants whom the National Visa Center has contacted, primarily in the family categories, to act in a timely manner, submit all the required documentation, and what happens on a monthly basis, the national visa center reports to my office all of the applicants who have been become documentarily qualified since the last reports were submitted approximately a month earlier. The cases are only reported one time and then we hold that information and use it in the determination of the movement of the Final Action Dates and then once a person’s priority date falls within the Final Action Date, then their case is immediately provided a number and the National Visa Center would be scheduling their case. That’s why I say applicants really need to act on their case in a timely manner when they’ve been requested information, because they may have been contacted say by the National Visa Center in March to assemble documents. If the applicant had done so and been reported to my office and their priority date was reached for the month of July, they could be potentially scheduled for an appointment in July. If they waited until their priority date was reached to begin submitting the documentation, it’s going to take several months before they potentially could be scheduled so it’s very important for people to act in a in a timely manner.

Will EB-2 India reach July 2012 priority in October 2021?

The India the second preference will continue to advance some, but I can’t speculate at this time where it will be in October. I do believe many of the China and India dates will be advancing and they may advance at a rapid pace early in the fiscal year before we start holding back on some of the movements. It’s because at this time we expected the fiscal 2022 employment limit to be at least 290,000, a second all-time high in a row, so we’re trying to make sure that we can generate sufficient demand to utilize all the available numbers.

How are priority dates determined? Is it based on the approved I-140 for that particular year?

It’s based on the amount of documentarily qualified demand which is has been reported to me on a monthly basis. If you think of the numerical control process is your household budget for the year and your employer were to hand you a check for your pay to represent the entire coming 12 months on October 1, so what you want to do is you look you have housing expenses, you have insurance, you have a variety of expenses that you have to budget for, and your goal is to reassess your estimates on a monthly basis to re redistribute the money you may have, to take some money away from one area and can add it to another, or across the board if your estimates on your needs for the previous months have been. Your goal is to use all of the money because at the end of 12 months, although you cannot exceed that amount of money, if you haven’t used it all you have to return any leftover money to your employer, so your attempt is to try to maximize number use.

That’s what I do I look at the annual limits: I establish targets of how many numbers I want to utilize on a monthly basis by preference category and within the preference categories often for particular countries under their country limit and I weight the allocations typically higher and heavier during the first eight to nine months so that we can kind of ease into the end of the fiscal year without having to have a surge in movement of the date and heavier number use. You will see during the eight first night eight to nine months the dates will move faster, then typically July through September they will kind of slow down or hold, or as somebody asked earlier about retrogressions, retrogressions would typically occur in August or September when we’re nearing the limit and are running out of numbers. We always try to limit retrogressions to the last month or two of the fiscal year because we know that is a tremendous inconvenience to applicants to have their cases in some form of processing, so our attempt is to minimize any inconvenience and then do a full recovery if whenever possible for the month of October.

So in that analogy, the money that you’re budgeting is analogous to the visa cases, correct?

Right, and for example, if we had 12,000 numbers and my target was to use a thousand each month, if I was using more or less then I would have to adjust how many numbers I was giving out in subsequent months.

Will USCIS start to adjudicate more EB I-485s in the last two quarters and also, how much movement can we expect in EB-2 and EB-3 in the upcoming months? So the USCIS question, perhaps we can’t answer, but on the movement of EB-2 and EB-3?

Yes, the EB-2 and EB-3 dates will continue to move somewhat. I’m not sure in terms of how much in the third preference. The third preference category has been reported to me by USCIS as the one category which they had the highest rate of new filings last fall, so they have a huge amount of cases in that category that they’re going through. I can say that the USCIS offices across the country are maximizing their processing capacity. They’re doing their best and every effort is being made to fully utilize all the enough numbers. It’s important to remember that this fiscal year 2021 employment annual limit is approximately 262,000. In a typical year, the employment limit would be in the 140,000 to 155,000 range average, so this is a huge increase, you know well over a hundred thousand extra numbers that they have for potential processing with limited staff. They didn’t suddenly get an influx of staff just because we had more numbers available this year. That’s a very important thing to remember that even before the pandemic hit, most of our overseas State Department offices and USCIS offices in the states were pretty much processing at peak capacity.

Consular officer note: Right, and bringing on more staff takes time because of all the security clearances and whatnot that need to happen in that process.

Does documentarily qualified include medical Form I-693 also?

The medicals are typically done roughly at time of interview. If an applicant that is being processed for adjustment of status, had been interviewed earlier and then could not be finalized because of the retrogression of the employment date, the medical that they provided at that time may have expired. That’s why we tried to limit requesting the medicals until very close to the appointment time, because they are somewhat time sensitive. In those cases, the USCIS office may request that the applicant provide an updated medical because they think the movement of the dates is likely to allow that applicant to be processed, in July or August, so they want to have the case ready to go so that they can be processed quickly.

How much will the visa wastage be for EB? Is it tens of thousands, hundreds of thousands?

At this time, I could not even speculate how many numbers will not be used under the various annual limits. The best I can say, is I would expect the amounts to be very large given the constraints that have been imposed on processing in the states and overseas because of the COVID situation. It would be somewhat unrealistic to expect that all the numbers could be used based on the limited processing ability posts and USCIS offices have had because of the COVID-19 issues limiting, you know going into work, having people come in, and actually for example, if an applicant is required to get a medical or an updated medical, all the current COVID-19 issues may be limiting the ability for them to get medicals and that would also prevent the processing of the case.

For downgrading an application in India EB-2 to EB-3, is the applicant counted in both the lanes while pending, since EB-2 is also still valid?

The applicant’s case, if it has been reported to me, is only counted in the original category they filed. So if they originally filed as in India’s second preference but they’re now attempting to have their case downgraded because the EB-3 date is more advantageous, I don’t really know of the that demand until the downgrade has been approved. At that point it would be removed from the India second preference information that I’m seeing about potential applicants, and at that time it would be reported in the India EB-3 potential applicants. Basically, I have limited visibility of the numbers during the downgrade grade process and basically I don’t care about it too much because that downgrade could take you know a month, six months, whatever, so I would not want to tie up, for example, tie up numbers in the third preference on the assumption that I was going to get downgrades and they not materialize and as quickly, and therefore not be able to utilize other numbers by moving the date.

If USCIS does not process EB green cards at the rate to reflect movement of the Final Action Dates, what’s the real significance of your department’s work? It doesn’t seem to have any impact.

The immigration service is very good about providing me at the beginning of each month a report of how much demand that they have that are in various stages of processing, so I can take that information into consideration when I am advancing the various Final Action Dates. That has been a long-standing process. The COVID-19 issues may be preventing some of those applicants from being processed. The demand is still being reported to me and I’m moving the Final Action Dates to reflect the amount of demand in an attempt to fully maximize number use under the limits.

How much movement should we expect in the CR-1 interview letters in embassies in the coming months?

That I couldn’t comment on post-specific issues. Again, monitor the post website: they will provide the most up-to-date information of how they’re processing among the various categories.

Consular officer note: It’s important to monitor the website of the embassy or consulate at which you’re applying for your visa and you can find all of the embassy websites if you go to usembassy.gov again that’s usembassy.gov and just type in the embassy at which you’re applying and you can find the website through that portal.

Is there a way for the applicant to know if they are documentarily eligible?

Yes, at least for if they’re processing the case and overseas posts. Cases that have been initiated in recent years, they can monitor the status of their case on the National Visa Center website. They’re provided with information of that when they’re contacted to just begin submitting documentation and they can monitor where the various documents are in the various stages of processing at our National Visa Center all along. They can see if something is missing or not and the National Visa Center would contact them. If they had been asked to provide a certain document, say a birth or marriage certificate, and they had submitted everything but that, the National Visa Center will be in contact with them to say you know we still need your birth certificate or we need the marriage certificate, and only once that’s received can you be considered to be documentarily qualified and reported to the visa office for potential consideration of a future visa. I can’t comment on the process used by USCIS, I’m really not familiar with that, but again State Department side, we’re trying to do that and it’s kind of a self-serving process because the National Visa Center was having a large volume of calls coming in: can you check on my case, can you tell me where I stand, and having to answer those types of questions prevent them from dedicating staff to other types of processing. Allowing the applicant to go online and check it out themselves is best for both parties and it’s a faster turnaround time, because if say the National Visa Center had to contact me and say, Charlie, you’re missing your birth certificate, well it takes time for that notification to get to me and it takes time for me to get it back if I can just go on and list, oh this is the document I forgot, it’s an expedited process. When the National Visa Center contacts the applicants, they give them a list of what’s required of them to submit and so there should really be no question, did I submit all the documents. If they give you a list and say, you need eight documents, if you send it all eight in, you can assume your case, unless you’re being contacted, that things are okay, that they have all the required information. If you’ve only sent in seven or six of the eight, then your cases can’t go anywhere till you submit the remaining documents.

For concurrent I-485 and I-140 applications, what happens if the I-140 application is still pending, but the priority date becomes current?

That is a USCIS processing issue and I’m I would not feel comfortable commenting on that definitely.

Any age relief for age-out applicants?

The Child Status Protection Act does provide some relief for applicants who turn, for example, turn 21 while their case is still pending. That is a very complicated calculation which I luckily do not have to be concerned with or extremely familiar. I believe that on the travel.state.gov website, there is some information if somebody is interested to determine if they are eligible and how it would apply to their case. So again, the travel.state.gov has a wealth of information to everybody that they can access and hopefully provide answers to most of their questions.

Can we get employment-based I-485 inventory monthly based on country? It’s missing from USCIS and also from the State Department website.

We don’t publish it because it changes on a regular basis. I’m not sure exactly what the USCIS is publishing. I rely on the reports that they submit directly to me based on my specific needs, so I don’t really monitor what they’re posting too closely. That would be again a question best channeled through the USCIS.

If a person has two or three I-140s filed through different employers when they switched jobs, even though the filing date would remain the same, is the case counted as a single case or would it be two or three different cases?

It would probably be reported as one. Again, this is a specific issue for USCIS. Applicants at USCIS are assigned A numbers and whenever the USCIS requests a visa number from our visa office, they do so providing the applicant’s A number, their priority date, their visa category, and their foreign state. We will only act on one number, so if in that example, if they had A number 123, we would only allocate one number, authorize it for use by applicant with an A number 123.

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How to Apply for a National Interest Exception to India Travel Ban

How to Apply for a National Interest Exception to India Travel Ban

On May 4, 2021, India was added to a list of countries with restrictions on entry to the United States because of an increase in COVID-19 cases. The ban prohibited most travelers physically present in the country during the 14 days prior to their planned or attempted U.S. entry from entering the U.S. The sudden announcement left numerous individuals stranded in India, even while their family members were in the U.S. As cases escalated, the consulates shut down, even temporarily halting emergency appointments as the country managed the effects of the COVID-19 outbreak.

Consular operations remain limited worldwide, with many posts only accepting emergency appointments. Emergency appointments are only being scheduled if an individual can provide evidence that he or she is not subject to the travel ban. U.S. citizens and permanent residents are exempt from the bans, as are a number of categories including individuals supporting critical infrastructure. Find out if you are exempt from the ban: Are You Subject to the Travel Ban? India Travel Restrictions & Resources

I don’t have a valid visa, but I am eligible for a National Interest Exception and need to travel to the U.S. 

If you have an urgent need for travel but do not have a valid visa, you must first qualify for an emergency appointment. Reasons for emergency appointments include medical needs, funeral/death, urgent business travel, and students or exchange visitors. Find out more about the criteria in our article: How to Request an Expedited Consular Appointment  The Department of State also expanded eligibility for an interview waiver or “drop box” appointment to 48 months (if you previously held the same visa class that has expired within the 48-month time frame). Review our Interview Waiver Checklist: Are you Eligible for a Drop Box Appointment?

In order to secure an expedited or emergency appointment, the consulates are also asking that you provide proof that you qualify for a National Interest Exception (NIE) at the same time. Please contact an immigration attorney if you have questions about your eligibility.

I have a valid visa and I am eligible for a National Interest Exception. How do I travel to the U.S.? 

How to Apply for a National Interest Exception (NIE) – With Valid Visa (No Stamping Appointment Required)

1. Prepare your evidence of NIE eligibility.

2. Send an email to the consulate or embassy with your evidence and the below information.

Visa holders with definite plans to travel who can demonstrate qualification for a National Interest Exception may contact the Embassy or Consulate that issued their visa to request a national interest exception prior to travel:

The email must include the following information for all travelers seeking an exception, as it appears on the visa:

Last name
First name
Date of birth, in DDMMMYYY format (ie – 01JAN2021)
Gender (M/F)
Country of birth
Country of citizenship
Passport number
Visa Number and Category (The visa number, also known as the visa foil number, is located on the lower right of the visa.)
Issuing Post Name (upper left corner of visa)
Travel dates
Travel purpose and national interest category, including a clear justification for receipt of an NIE

3. Wait for a response (between 2 weeks and 30 days in most cases.)

The Department of State has noted that each request will be considered as resources and operating capacity allow. You are encouraged to send your email in English for the fastest response times. While the consular posts strive to answer all requests with an approval or denial of the NIE within 2 weeks, the process could take longer.

Please note that national interest exceptions, when granted, are valid for a single entry within 30 days of approval. Subsequent requests after an expired NIE may have greater challenges to approval if it appears your travel was not actually urgent.


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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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