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Department of State Visa Backlog Update

Only have a few minutes? Here are the key takeaways:

  • In January of 2020, the NVC backlog was at 80,000. Fifteen months later, the current number of applicants that are ready for interviews is 481,965.
  • DOS is prioritizing family unification with four priority tiers:

    Tier 1
    are family-based immediate relative visas and adoption-based visas, as well as age-out cases and certain special immigrant visas.
    Tier 2 is going to be other immediate relative visas for spouses, fiancés, parents, and returning resident visas.
    Tier 3 is family preference visas, other special immigrant visas for certain employees of the US government
    Tier 4 includes all other immigrant visas, including employment-preference visas and diversity visas.
  • Fiance visas are part of a National Interest Exemption and are not subject to geographical travel restrictions.
  • The Diversity Visa is a fiscal year program, so as regulations currently stand, all visas must be issued or approved by September 30, 2021 or else they cannot be utilized.
  • DOS is urging patience as consular posts continue to deal with the effects of the pandemic.

Summary of Q & A with Department of State’s Neal Vermillion

Neal Vermillion is a division chief in the Visa Office of the Bureau of Consular Affairs. His division is the Office of Field Operations, which provides guidance to consular sections, embassies, and consulates around the world. He has served for the DOS since the early 2000s all over the world in different field offices and consulates. He is glad to have the opportunity to talk and answer questions about the unprecedented situation with the visa backlog.

 This event is intended to address issues of general interest related to the content of the visa backlog. Questions and answers have been paraphrased and should not be interpreted as verbatim quotes.

Neal would like to go over the recent history of the backlog as a primer before beginning his Q&A:

Overseas immigrant visa processing has been shut down due to the pandemic for the past year, which has affected the immigrant visa backlogs in an interesting way. Last spring, President Trump signed Presidential Proclamation 10014, which prevented the issuance of many immigrant visas. There are still many geographic proclamations in effect which have been issued to protect the health and security of Americans. Proclamations are in effect which cover 33 countries. These issues have all contributed to the creation of an unprecedented backlog. Getting out of the backlog is an ongoing process, although it will be hindered by the ongoing nature of the pandemic.

The reopening process has been hampered by slow vaccination rates outside of the United States, where the pandemic remains a much more serious problem. Neal would like the listeners to know that the Department of State is aware of the problems that visa applicants face and is committed to providing relief and decreasing the Immigrant Visa backlogs.

What is the DOS doing to decrease the visa backlogs worldwide? 

We are fully committed to reducing that backlog, and honestly keeping people informed is part of that effort, which is part of why we’re doing this. I also want to highlight that we have started posting in the last month and will update monthly on our travel.state.gov the stats of the immigrant visa backlog. The National Visa Center – the current number of applicants that are ready for interviews is 481,965 – this is up from January’s figure of 408,255. For comparison, in our last normal month of processing, back in January of 2020, almost fifteen months ago, we had a backlog of 80,000 then. That number will fluctuate over time, and it does not change in a linear way.

In terms of what we’re doing, we’re throwing all available resources that we can at the backlog and we’re telling our overseas consular sections and our embassies and consulates overseas that, after services to US citizens, processing of immigrant visas and fiancé visas is our number one priority. Please understand we are continuing to deal with circumstances on the ground, and our ongoing response to the backlog will depend on these circumstances. We are trying to process these applicants as quickly and safely as possible.

How are IV applicants being prioritized?

We have an article on travel.state.gov from our newsroom that details this, but I’ll answer here as well. Basically, we have many immigrant visa categories. We have relatives, we have employment visas, we have family visas, we have diversity visas.

We don’t want to prioritize any of these categories, however, during the pandemic, we’ve been forced to make difficult decisions on how our consular sections should prioritize different visas. As we develop a framework for prioritization, the principle that underlies our plan is the prioritization of family reunification. It’s a clear priority of the US government, it is a clear priority in the INA, it is specifically our prioritization guidance that we have given publicly as well as to our consular sections. Our guidance relies on a clear direction from Congress that requires the adoption of policy that prioritizes family reunification.

We’ve given our divided immigrant visa work into four priority tiers. We have directed consular sections where it is possible to schedule appointments within all four priority tiers. The majority of the applications that a section will process if they are able to are going to be within the first two tiers.

Tier 1 are family-based immediate relative visas and adoption-based visas, as well as age-out cases and certain special immigrant visas.

Tier 2 is going to be other immediate relative visas for spouses, fiancés, parents, and returning resident visas.

Tier 3 is family preference visas, other special immigrant visas for certain employees of the US government

Tier 4 includes all other immigrant visas, including employment-preference visas and diversity visas.

As mentioned, we’re going to try and do as much as we can for each of those tiers. Some consular stations are processing some cases from each of these tiers.

Will DV 2021 selectees be able to get an interview before the September 30, 2021 deadline?

Diversity visas are a hot topic; we’ve gotten this question before.

The good news is that Presidential Proclamation 10014 has been rescinded, so for the first half of this fiscal year, we were unable to process diversity visas due to that proclamation. As I’m sure people who are interested in diversity visas know, that program is specific to each fiscal year. I can tell you that our colleagues that are responsible for this program, which is the Consular Center, has begun to schedule and process documentarily qualified visas. We truly value the diversity visa program and are going to do what we can.

That said, this pandemic is unpredictable. We’ve seen spikes in the past month in South Asia and in other places. It’s impossible to forecast how many DVs we will issue this year. It is very likely that we will not be able to issue all of the diversity visas this year. 55,000 is the maximum we are able to issue each year.

Obviously last year we weren’t able to get as close to that ceiling as we like. We are committed to doing as much as possible. As has been mentioned earlier, we have local conditions and restrictions that have forced us to prioritize. We are going to do as much as we can before the end of the fiscal year, but it will not be near the 55,000 allowed by the statute.

Will DV 2020 selectees who were not interviewed prior to September 2020 be interviewed?

I understand the frustrations of the selectees from last fiscal year. It’s kind of the opposite of what happened this year, where we processed smoothly for the first half of the year and then were interrupted by COVID.

To go back to what I said earlier, the diversity visa program is a fiscal year-specific program. Applicants who were refused because of that proclamation last year cannot be interviewed. The terms of these programs – the fact that it is specific to fiscal year is outlined in the statute. It’s unfortunate, but there’s nothing we can do about it.

If you did win and were selected for DV 2020, you can enter future DV lotteries.

That’s a great point, and I know many many people apply for the program year after year after year, and after fifteen years they finally get it. There are no guarantees, of course, it is a selection process.

Why can’t immigrant visa applicants be interviewed virtually?

Good question. Obviously, we’re doing Zoom and YouTube here, technology has changed quite a bit. I’ll give you a straightforward answer – maybe not the most welcome answer – immigrant visa applicants are required by statute to be interviewed in person. As a consular officer who has worked in the field, there are some benefits I should talk about with this process:

National security is our top priority when we adjudicate these applications. Each prospective traveler undergoes extensive screenings. Part of that is that our officers not only look at the visa application, but they also talk to the applicant to make an informed decision about whether the person is eligible or whether there are any national security concerns.

Can you talk about K-1 visas specifically and where they are on the priority list?

K-1 visas are a priority, as I mentioned earlier, we have four tiers of immigrant visa priority, and that the majority of consular sections will be focusing on the first two tiers. Fiancé visas are in that tier as well, along with spousal visas and immediate relative visas in our tier 2. They are a focus. Depending on the post, the backlogs in these cases may be longer than others.

You mentioned for fiancée visas specifically that the geographic proclamations no longer affect those visas?

That is correct. That’s worth reinforcing, since just last month. There is a National Interest Exception. There is a blanket declaration from the Secretary of State that these are a National Interest Exception.

How long does it take to process a current EB I-485 application?

I can’t really get into that, because I’m not an expert. There are so many areas that influence processing time. As many of you know, most immigrant visa applications start with a petition filed with USCIS, and that’s an area I can’t really get into. USCIS I’m sure is facing their own resource constraints, their own pandemic restraints.

Most of our immigrant visa cases get routed through the National Visa Center, which also has its own processing. It takes time, and sometimes people submit documentation that’s not complete, and it takes time to go back and get that documentation, so – public service announcement, please make sure your application is documentarily complete before sending.

At the end, if you have cases sitting in the National Visa Center that we are able to schedule, it comes down to individual posts. I’m not even able to answer that question directly. On the positive sign, we don’t have a proclamation preventing us from processing cases directly, and many of our posts have started resuming services. As of a week or two ago, there were a dozen posts that were not doing immigrant visas. Some were COVID related, such as the spike in South Asia for example, and some were not COVID related, such as Burma and Russia, for example.

Do you know about the status of the KCC backlog processing Diversity Visas? It’s been months.

The KCC, I talked with my colleagues there, and my advice is to just be patient. They are processing as much as they can in the order in which the cases are received. For those of you who are waiting for scheduling, please wait until you are contacted by your particular embassy or consulate. I’ve seen other questions about KCC, and their leadership has reminded me to tell you that if you’re used to calling KCC, they had to send the entire staff home due to the pandemic spike last fall. They used to accept phone calls, they don’t anymore. It’s best to get in touch with KCC via email, although their email system is also backlogged. They are doing their best, please be patient. KCC will get to them, and I encourage you not to send a second or third or fourth follow up. We’re trying to get as many DVs scheduled as we can.

Why are there zero interviews scheduled except for a few expedite cases in the F2 category?

Again, I’m not sure if I can get into each specific category because there are so many factors. Certain posts are able to schedule interviews, depending on their local restrictions. I understand you had on my colleague Charlie Oppenheim who can provide more details on when numbers are available for scheduling, and when they can be called “current.” It really comes down to the particular circumstances in that country.

To get back to the tiers, family preference immigrant visas are in the third priority tier. We are trying to process some, for posts that have backlogs, their emphasis will be on processing fiancés and immediate relatives.

For the Tier 1 category of visa preference, do applicants receive their interview appointment without waiting for the first and the fifteenth of the given months or will the 2NL be sent with no wait time?

This goes back to where we have a multi-step process to talk about. What the NVC does is one thing. The case might be ready to be processed pretty quickly, but a certain consular section or embassy or consulate may not be ready to accept those cases. Many consular posts have determined that they are not planning to accept new cases from the national visa center for the next several months. They will work through those and other high-priority cases before scheduling anything new.

If I have an I-485 AOS done in OCT 2020 for an EB-3, can we request our medicals now before a request is made by USCIS?

I would just follow the directions that are given by the NVC and USCIS. The answer to that is probably gonna be a no, just because the medicals come later in the process. You can tell from this conversation that a lot of my discussion is going to be general. I’m not able to talk about any individual case.

Are there any plans to increase staff?

Good question. I’m not the resources guy, so I wouldn’t be the person to ask about that. I’d love to have more staff, but this is not purely a staffing issue. If the world were perfect, Congress would now where to put its resources for staffing – first of all, staffing takes a significant amount of time with training and all that, but the important points that in many of these backlog cases, the backlog is coming from those other factors I’ve talked about – the Presidential Proclamations, the fact that we’ve had to shut down, and the closures at consulates and embassies. It’s going to be a non-linear process, but we will get there as quickly and safely as we can.

Do embassies prioritize medical professionals such as nurses under the EB-3 category?

Good questions. EB-3 is an employment preference category, which would put in priority tier 4. We recognize the importance of medical professionals, our posts are doing their best to process as many as they can, but there are certain exceptions, but at this time all employment-based preferences are in the lowest tier of priority. It really depends on your consular section.

Is It possible to maintain or go back to regular capacity by providing a COVID test less than 72 hours before an appointment?

That’s a really good question, and I applaud the creative thinking, but, unfortunately, each consular section is operating in a different locality. We need to follow the local guidelines for shutdowns and social distancing while also following CDC guidelines for operations.

Why would consulates not book IR-1 or CR-1 interviews?

IR-1s are immediate relatives, so without knowing the specific circumstances of the consulate that you’re talking about, I can’t comment on why interviews are not being scheduled. Again – patience, patience, patience. In that particular locale, the list is probably long, and circumstances are probably preventing the processing of immediate relatives, and they’re working through it as fast as they can.

Have you actually ordered all embassies to resume IV processing? What are you doing to ensure that posts are following orders?

No, posts have not been ordered to resume IV processing. Let me review the guidance that we’re talking about: We need to prioritize the health and safety of our applicants and our staff, and about the people who come into contact with those people. We cannot order a consular section overseas to proceed if it is unsafe to do so. What I can say though is that, as they are safe to reopen, consulates must follow the prioritization guidelines I mentioned earlier. Please be patient. It’s not an easy situation for any of us.

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USCIS to Allow F-1 Students to File I-765 Online to Request OPT

USCIS announced that it would now accept the online version of Form I-765 from certain F-1 students applying for pre or post-completion OPT or STEM OPT extensions. This may provide some relief to students who have been subject to delays at USCIS lockboxes. Previously, USCIS announced flexibilities for F-1 students who had been affected by lockbox delays.

USCIS Announcement

WASHINGTON—U.S. Citizenship and Immigration Services today announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization, online if they are filing under one of these categories:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

OPT is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.

“USCIS remains committed to maximizing our online filing capabilities,” said Senior Official Performing the Duties of USCIS Director Tracy Renaud. “The I-765 online filing option allows eligible students to file forms online in a more user-friendly fashion and increases efficiencies for adjudicators.”

The option to file Form I-765 online is only available to F-1 students filing Form I-765 for OPT. If an applicant submits Form I-765 online to request employment authorization on or after April 15, but is eligible for a different employment authorization category, USCIS will deny the application and retain the fee. As USCIS continues to transition to paperless operations, the agency will work to expand online filing for Form I-765 to additional categories.

Online filing allows applicants to submit forms electronically, check the status of their case anytime from anywhere, and receive notices from USCIS online instead of waiting for them in the mail. USCIS is using innovation and technology to meet the needs of applicants, petitioners, and employees. Regardless of the paper or electronic format of an application or petition, USCIS is committed to ensuring a secure and efficient process for all.

Individuals can file 11 USCIS forms online, which can all be found on the Forms Available to File Online page. To file these forms online, individuals must first create a USCIS online account at https://myaccount.uscis.gov/. This free account allows them to:

  • Submit their forms;
  • Pay their fees;
  • Track the status of their case;
  • Communicate with USCIS through a secure inbox; and
  • Respond to Requests for Evidence.

USCIS continues to accept the latest paper version of these forms by mail.

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Premium Processing Would Increase to $2,500 Under Proposed House Bill

Premium Processing Would Increase to $2,500 Under Proposed House Bill; Expands Premium to Additional Petitions & Applications

UPDATE 8/25/2020: USCIS Postpones Administrative Furlough

In an attempt to address looming USCIS furloughs, a bipartisan group of Congressional lawmakers introduced the Emergency Stopgap USCIS Stabilization Act. The bill passed unanimously over the weekend and heads to the Senate next.

If passed by the Senate, the bill would “temporarily forestall the need for furloughs by immediately increasing the agency’s ‘premium processing’ revenues.” Premium processing allows certain individuals and companies to pay an optional fee for expedited processing for select petitions and applications. The fee is currently set at $1,440 and guarantees action within 15 days or the fee is returned and the case continues to be processed expeditiously.

The bill would increase the fee from $1,440 to $2,500 for most case types and would also expand premium processing to new petitions and applications. The revenues may be used by USCIS to improve adjudication and naturalization services and reduce backlogs, including delays for non-premium applicants. Previously, collected fees were only to be used to fund premium processing operations and infrastructure improvements. The House of Representatives bill summary states that premium processing must be made available to the following additional immigration benefits:

  • employment-based nonimmigrant petitions not already subject to premium processing;
  • certain employment-based green card petitions (EB-1, EB-2, and EB-3) not already subject to premium processing;
  • applications to change or extend nonimmigrant status;
  • applications for employment authorization; and
  • other immigration benefit requests as USCIS deems appropriate.

The new fees and timeframes would be set through the Department of Homeland Security rulemaking. The bill would also allow biennial adjustments of premium fees to account for inflation.

The bill also confirms that premium processing requestors have direct and reliable access to their current case status information and the ability to communicate with the premium processing service units. USCIS may only suspend premium processing if circumstances prevent the completion of a “significant number” of premium requests within the required 15-day timeframe.

The bill would also allow USCIS to set premium fees for new benefit types without rulemaking if the fees do not exceed the below guidelines:

Benefit Type Fees Processing Times
EB-1 petitions for multinational executives and managers $2,500 45 days
EB-2 petitions involving National Interest Waiver (NIW) $2,500 45 days
Change of Nonimmigrant Status to F (academic student), J (exchange visitor), or M (vocational student) $1,750 30 days
Applications to Change or Extend Status as a dependent of an E (treaty trader or investor); H (temporary worker), L (intracompany transferee), O (extraordinary ability), P (artist or athlete), or R (religious worker $1,750 30 days
Applications for Employment Authorization $1,500 30 days

The bill also requires USCIS to develop a 5-year plan to implement:

  • electronic filing procedures for all benefit requests,
  • accept electronic payments,
  • correspond with benefit requestors electronically,
  • reduce processing timeframes for all immigration and naturalization benefit requests.

The agency will be required to conduct semi-annual briefings to the appropriate congressional committees.

Since this bill is intended to be an emergency stopgap to stabilize the USCIS budget, there may be an accelerated implementation timeline. Save $1,040 and upgrade your employment-based case for premium processing today. Contact us at info@challalaw.com to get started.

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USCIS Fees Increase on October 2, 2020

USCIS Fees Increase on October 2, 2020
(UPDATE: A nationwide injunction has temporarily paused implementation of this rule.)

On July 31, 2020 the Department of Homeland Security announced an increase to fees for immigration and naturalization benefit requests. Although most fees are increasing, a $10 discount is offered for online submission where available.

Employment Visa Updates

Employers are understandably concerned about the potential effect the rule has on H-1B, L-1, and other immigrant employees. For employers with more than 50 employees and more than 50% of those employees in H-1B or L-1 status, a $4,000 fee applies. The rule expands the Public Law 114-113 fee of $4,000 to both H-1B and L-1 new employment as well as extensions of stay for employers that meet the 50 employee, 50% dependability test. The Public Law fee will apply regardless of whether the fraud fee applies. Extension requests for H-1B, L-1A, and L-1B visas filed by the same petitioner for the same employee or H-1B, L-1A, and L-1B amended petitions were previously exempt from the additional fee.

DHS will now separate the I-129 into forms based on case type and eliminate the current supplements to the I-129 form. This also allows DHS to charge separate fees for each form depending on the classification. DHS states that the current base filing fee of $460 doesn’t accurately capture the costs associated with adjudication since the fee is paid regardless of how many nonimmigrant workers will benefit from the petition or application, the type of worker evaluated, whether an employee is identified, or how long it takes to adjudicate the different nonimmigrant classifications.

The rule updates the filing fees as follows:

Case Type Current Fee Final Fee Change Percent Change
E-1

E-2

TN

$460 $695 $235 51 percent
H-1B $460 $555 $95 21 percent
H-2A
(named beneficiaries)
$460 $850 $390 85 percent
H-2B
(named beneficiaries)
$460 $715 $255 55 percent
L-1A

L-1B

$460 $805 $345 75 percent
O-1 $460 $705 $245 53 percent
H-2A
(unnamed beneficiaries)
$460 $415 -$45 -10 percent
H-2B
(unnamed beneficiaries)
$460 $385 -$75 -16 percent


Green Card Fee Changes

Children under the age of 14 filing for a green card with their parents were previously able to pay a reduced fee of $750 instead of the $1,140 (plus $85 biometrics fee) currently charged to older applicants. All applicants will pay $1,130 under the new rule.

DHS also chose to separate the filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when either filed concurrently with Form I-485 or after the Form I-485 has been accepted and is still pending. Current regulations allow individuals to pay the I-485 fee, but also file the I-765 and I-131 without additional fees if filed concurrently.

The rule claims: “Debundling allows individuals to pay for only the services actually requested. Thus, many individuals may not pay the full combined price for Forms I-485, I-131, and I-765.” The newly established fees are as follows:

  • Form I-131, Application for Travel Document: $590
  • Form I-765, Application for Employment Authorization: $550
  • Form I-485, Application to Register Permanent Residence or adjust Status: $1,130

Individuals applying for work and travel documents along with their permanent residence application will now pay a total of $2,270.

Citizenship Fees

DHS will remove the N-400 fee waiver (Form I-942) and the reduced fee option “in order to recover full cost for naturalization services.” The rule also removes the fee waiver for the N-600, Application for Certificate of Citizenship. However, the removal of fee waivers will reduce the cost of Forms N-600 and N-600K because the increased fee would no longer need to cover the cost of the fee-waived form adjudication.

However, the N-400 would not be afforded the same price decrease as the N-600: DHS raised the naturalization fee an astounding 83% from $640 to $1,170 for the paper-based filing. With the removal of the reduced fee option, naturalization may be financially out of reach for many families.

Premium Processing

Currently, petitioners or applicants can pay $1,440 for certain employment-based petitions to be adjudicated within 15 calendar days. The new rule will change the 15-day calculation from calendar days to business days, while also excluding federal holidays and regional or national office closures due to weather or other causes.

The rule also states that the 15-day period be paused when USCIS issues a notification of an approval, denial, RFE, or NOID. The rule would also clarify that a new 15 business day period will begin upon receipt of an RFE or NOID response. If an investigation is opened for fraud or misrepresentation, USCIS can retain the fee and not reach a conclusion to the request within 15 days.

The agency claims that the shift to calculating by business days will allow USCIS additional time to complete processing on a premium processing petition and could reduce the need for USCIS to suspend premium processing when request filing volumes are high.

Payment Updates

USCIS will eliminate the $30 returned check fee because the fees associated with collecting the charge were higher than the returned check fees actually collected. However, petitioners and applicants should still ensure that adequate funds are available to avoid processing delays.

Another shift that has the potential to trip up applicants and petitioners is the planned updates to certain form instructions to only allow certain payment types for certain forms. For example, USCIS may determine that it only wants to accept credit or debit card payments for naturalization. USCIS could also decide that only a check or money order is acceptable payment for a certain form. The rule does not modify the instructions at this time, but states:

“In this final rule, DHS does not restrict the method of payment for any particular immigration benefit request. This final rule clarifies the authority for DHS to prescribe certain types of payments for specific immigration benefits or methods of submission.”

Extra precautions must be taken to review form instructions every time a case is filed to avoid a processing delay due to an incorrect payment type.

Biometrics Fees

The new rule incorporates biometrics fees into the underlying immigration benefit request to “simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information.” The fee includes FBI name checks, FBI fingerprints, Application Support Center (ASC) contractual support, and biometric service management (including federal employees at ASC locations). The rule outlines that a separate biometric services fee will be retained for Temporary Protected Status in the amount of $30, but requests for other immigration benefits will include the biometric fee.

Secure Mail Initiative

We have seen many clients suffer when the United States Postal Service (USPS) loses important immigration notifications. The rule announced that USCIS will implement Signature Confirmation Restricted Delivery (SCRD) as the sole method of delivery of secure USCIS documents. USPS states that Signature Confirmation requires that the recipient or another responsible person at the residence be present to sign for the item and then the sender will receive the signature and name of the recipient and the date, time, and location of the delivery. The rule outlines states

“USCIS and applicants can track their document using the USPS website up to when the document is delivered. Recipients will also have the ability to change their delivery location by going to the USPS website and selecting “hold for pickup” to arrange for pickup at a post office at a date and time that suits them.”

Applicants and petitioners should ensure that accurate addresses are submitted prior to the case filing.

Timeline for Rule Implementation

This final rule is effective Oct. 2, 2020. Any application, petition, or request postmarked on or after this date must include payment of the new, correct fees established by this final rule and utilize the updated forms.

Are you ready to start your case prior to the fee and process shifts? Contact us at info@challalaw.com or 804-360-8482 to get started today.

Judge Orders USCIS to Address EAD and Green Card Printing Backlogs

Judge Orders USCIS to Address EAD and Green Card Printing Backlogs

A federal judge has ordered USCIS to print all backlogged green cards and EADs within seven days, citing the harm the lack of income is causing plaintiffs in the midst of the pandemic. The suit claims that the USCIS backlog is purposeful, stating that the agency has “either an intention to harm plaintiff and class members or deliberate indifference.”

USCIS typically prints and mails EADs within 48 hours of approval but argued in court documents that the agency is not legally required to provide the documents within that timeframe. Judge Algenon Marbley disagreed: “The fact that there is no statute or regulation setting a timeline for action does not mean that the agency retains unfettered discretion to issue EADs at any time they wish.”

Even as companies are struggling to stay profitable, USCIS has delayed printing documents critical to continued employment of skilled workers. Thousands of individuals who have been approved to legally work in the United States are instead without proper documentation to present to employers due to the USCIS backlogs and reduced printing capacity. The USCIS website reports processing times up to 12 months for some service centers, but in public statements the agency has reported four-month processing times, insisting that the speed is faster than 2019 and consistent with 2018 processing times.

While it is reasonable to assume the delays were due to COVID precautions, many USCIS workers continued to process EAD and green card applications. Approvals were still generated during adjudications, but the documentary proof required for work authorization continues to be delayed. The printing backlog is in part attributable to USCIS ending a contract with a company responsible for green card and EAD production. The agency intended to continue production in-house, but instead shut down one of the two facilities and reduced capacity at the second.

USCIS has acknowledged that 50,000 green cards and 75,000 employment authorization documents remain to be printed and continually points to the financial problems on the horizon. The agency is primarily fee-funded, so the temporary closure of offices and reduction of services left USCIS with a projected billion-dollar shortfall.

On July 31, DHS announced the final rule on increasing fees for immigration and naturalization benefit requests. The new fees will become effective on October 2, 2020. Read more about the planned increases.

File your extension and EAD early to account for longer processing times and printing delays. Contact us at info@challalaw.com or 804-360-8482 to get your case started.

USCIS Extends Flexibility for Responding to Agency Requests

USCIS Extends Flexibility for Responding to Agency Requests

In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibility it announced on March 30, 2020, to assist applicants and petitioners who are responding to certain:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Read Challa Law Group’s update from the previous USCIS announcement.

Notice/Request/Decision Issuance Date:

This flexibility applies to the above documents if the issuance date listed on the request, notice or decision is between March 1 and Sept. 11, 2020, inclusive.

Response Due Date:

USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action. We will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before we take any action. USCIS states:

“We are adopting several measures to protect our workforce and community and to minimize the immigration consequences for those seeking immigration benefits during this time. USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection.”

Additional Questions?

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Changes Imminent to H-4 Dependent Form I-539: USCIS Announces Updated Implementation Plan

USCIS recently announced their intent to publish a new version of Form I-539, Application to Extend/Change Nonimmigrant Status. Form I-539 is commonly used by individuals residing in the U.S. temporarily, such as dependents of H-1B, L-1, E-1, E-2, J-1, etc. F-1 students and B-1/B-2 visitors may also use the form to extend their stay in the U.S.

USCIS originally stated that the revised version will be available on March 11, 2019; the same day only that version of the form will be accepted. The supplemental Form I-539A was also scheduled to be updated on that date.

Stakeholder Concern

The American Immigration Lawyers Association (AILA) and other stakeholders expressed concern that there is no grace period and that the form and instructions are being released the same day that it becomes mandatory to use. The timing is difficult for beneficiaries and companies attempting to file for H-1B employees and H-4 dependents by the April filing deadline. AILA sent a letter on February 21 to USCIS Director Cissna requesting a delay for the March 11 effective date and suggesting a 90-day grace period for the updated form.

USCIS Revises Form Implementation Plan

The Office of the Citizenship and Immigration Services Ombudsman considered the concerns stakeholders articulated over the transition and hosted a teleconference on March 1, 2019 to discuss the revised forms. During that call, USCIS announced some modifications to the original timeline and implementation plan:

  • USCIS stated the revised forms I-539 and I-539A would be posted three days early.
  • There will be a 10-day grace period for those filing with the old versions of the forms: the previous version with edition date 12/23/16 will be accepted if received at a USCIS Lockbox by close of business on March 21, 2019.
  • The new forms with edition date of 2/4/19 will be accepted starting March 11, 2019.

USCIS also stated that during the grace period, the new forms will be held for processing until March 22, 2019 with the receipt date based on when the USCIS Lockbox actually received the filing.

Highlighted Updates

Below are the major changes to the form I-539 and I-539A:

  • Every co-applicant on the primary Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under the age of 14.
  • Every applicant and co-applicant must now pay separate $85 biometric services fees (except certain A, G, and NATO nonimmigrants).
  • Every applicant and co-applicant will receive biometric services appointments, regardless of age, containing an individual receipt number. The appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. (Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.)

Implications for H-1B Cap Season

Challa Law Group has determined that only select H-4 filings will be sent with the initial H-1B petition due to the uncertainty and timing surrounding the updated forms. We will only file in cases in which the principal or the H-4 dependent will fall out of a valid immigration status without a pending application or petition. For example, if the principal visa holder has Optional Practical Training through an F-1 student visa, he or she can utilize the “cap gap” to continue working until October 1. The individual can then stay in the U.S. based on the pending H-1B but cannot continue working beyond October 1 without another work-authorized status. The dependent should file for the H-4 application to also maintain his or her stay in the U.S. while the USCIS is adjudicating the cases. (For F-1 students with OPT expiring before October 1, if an OPT STEM extension is available, the student should first file for the STEM extension instead of an H-4 visa until an H-1B or another independent status can be obtained.)

By deferring the H-4 applications until after the cap filing deadline, we will mitigate some of the additional confusion surrounding a form update with no grace period. When an individual is selected in the H-1B visa cap, then the H-4 application can be submitted at that time. This will allow biometrics fees and additional signatures to be collected from H-4 dependents separately from the H-1B documentation, streamlining the process for employers and beneficiaries.

 Trump Administration’s Intent to Rescind H-4 Work Authorization

In 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence. That rule is now being reconsidered as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017. The proposed rule has moved forward to review by the Office of Management and Personnel. While the proposed regulation is not available for public review yet, some have predicted that the rule could be published in the Federal Register before a March 18 deadline in a lawsuit: Save Jobs USA v. DHS. The lawsuit, brought by U.S. technology workers, purports that DHS had no authority to issue work authorization to H-4 spouses in the first place and that the program should end immediately.

Possible Timeline for H-4 Work Authorization Rescission

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

Note: Attorneys Challa and Millburn at Challa Law Group are members of the American Immigration Lawyers Association.