Visa Lawyer Blog

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Welcome back to Visalawyerblog! In this blog post, we will cover the release of the December Visa Bulletin 2021 and what you can expect for employment based and family preference categories during the month of December 2021.

The Department of State releases the visa bulletin on a monthly basis, which summarizes the availability of immigrant visa numbers for that particular month. The “Final Action Dates” and “Dates for Filing Applications,” charts indicate when immigrant visa applicants should be notified to assemble and submit the required documentation to the National Visa Center.

Adjustment of Status Filings for those lawfully residing in the United States

In general, if USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, the agency will provide instructions on the www.uscis.gov/visabulletininfo webpage that applicants may use the Dates for Filing chart. Otherwise, USCIS will indicate that applicants must use the Final Action Dates chart to determine when they may file their adjustment of status application with USCIS. If a particular immigrant visa category is “current” on the Final Action Dates chart or the cutoff date on the Final Action Dates chart is later than the date on the Dates for Filing chart, applicants in that immigrant visa category may file using the Final Action Dates chart during that month.

Adjustment of Status Filing Chart December 2021

Please note that USCIS has not yet released information on its webpage regarding the appropriate filing chart to be used for family-sponsored adjustment of status filings and employment-based adjustment of status preference filings for December 2021. We recommend that applicants monitor the USCIS webpage below on a regular basis for those updates.

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In this blog post we share amazing news with our readers regarding the settlement of a recent class-action lawsuit filed against the U.S. Department of Homeland Security. The agreement reached under the settlement will immediately allow for automatic renewals of employment authorization for: L-2 spouses of L-1 nonimmigrants and qualifying H-4 dependent spouses who (a) properly file an application to renew their H-4 based employment authorization document before expiration (b) have an unexpired Form I-94 showing their status as an H-4 nonimmigrant and (c) who will continue to have H-4 status beyond the expiration date of their employment authorization document. Shergill v. Mayorkas, No. 21-1296 (W.D. Wash.)

What does this new settlement mean?

 Effective immediately, the Shergill settlement will make it a lot easier for L-2 and H-4 dependent spouses to continue working in the United States without having to apply for a renewal of their employment authorization and without interruptions to their employment. As many are already aware, the processing of I-765 employment authorization applications is currently subject to extreme delays due to the pandemic and burdens on USCIS offices. This new settlement will prevent L-2 and certain H-4 dependent spouses from being stuck in these backlogs. Not to mention L-2 and certain H-4 spouses will no longer have to pay the required $410 filing fee to renew their employment authorization. Following this new settlement, L-2 spouses and certain H-4 spouses will be able to work just by having their valid H-4 and L-2 visas, and they will not need to file any separate applications nor need an employment authorization card (work permit) to work in the United States.

Guidelines for Dependent Spouses under the Settlement Agreement

Under the terms of the Shergill settlement agreement, as it relates to L-2 dependent spouses, USCIS will now interpret 8 CFR § 274a.13(d) to recognize that employment authorization for such spouses is now linked (incident) to their visa status. USCIS will also allow up to 180-day automatic employment authorization extensions when the applicant has already had the H-4 or L-2 status extension granted either through USCIS or through travel.

Automatic Renewals of Employment Authorization for applications that already have valid H-4 status

  • Pursuant to the settlement agreement, USCIS is now interpreting the law so that H-4 nonimmigrants who have timely filed their I-765 EAD renewal applications and continue to have H-4 status beyond the expiration date of their EAD, qualify for the automatic extension based on their (c)(26) EAD.
  • This automatic extension will terminate on the earlier of: the end date of the H-4 status, adjudication of the EAD renewal application, or 180 days from the previous card’s expiration date.

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Welcome back to Visalawyerblog! In this blog post we share with you some recent news regarding a new class action lawsuit that has been filed by 49 plaintiffs against the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS), seeking relief from the extreme processing delays currently taking place for I-765 applications for employment authorization (EADs) filed by individuals seeking adjustment of status (AOS) in the United States, and for I-765 applications filed by E-2 dependent spouses with USCIS.

Currently, USCIS reports that I-765 work permit applications based on a pending I-485 adjustment of status application are taking between 20 to 21.5 months to process at the California Service Center; while it is taking 9 to 9.5 months to process work permit applications at the National Benefits Center; and 9.5 to 10.5 months to process such applications at the Nebraska Service Center.

The new legal challenge against the government has been mounted by the American Immigration Lawyers Association (AILA), Wolfsdorf Rosenthal LLP, Joseph and Hall PC, Kuck Baxter Immigration LLC, and Siskind Susser PC.

The lawsuit seeks to hold the government accountable once and for all for the exorbitant processing times taking place for work permit applications to be adjudicated, especially those at the California Service Center. Under the law, applicants for adjustment of status are afforded the option of applying for temporary employment authorization while their green card applications are pending with USCIS, through what is supposed to be an easy procedure that involves filing a simple I-765 application for employment authorization. In normal circumstances, such employment authorization applications took on average 7 to 9 months to be adjudicated. Since the onset of the pandemic however USCIS has not been able to adjudicate these applications within reasonable timeframes.

Processing times have gotten worse and worse to the point that applicants are receiving their green card interview appointments before even coming close to receiving an approved employment authorization document. This has resulted in applicants being unable to seek employment while waiting for their green card applications to process. This has caused great cause for concern for individuals who have a job offer lined up or who need to work to maintain their households. Further, the American economy is experiencing more and more labor shortages as they struggle to get individuals back to work. The situation at the USCIS level is making it even more difficult for American businesses to find qualified workers.

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A new House reconciliation bill adds new language that could open a path to permanent residency for highly skilled immigrants without waiting for their priority date to become current.

The new bill, known as H.R. 5376 “the Build Back Better Act,” is the latest initiative backed by the Biden administration to strengthen the middle class and enhance economic ingenuity.  Interestingly, the bill provides a framework that would improve and reform our immigration system with particular benefits for highly skilled immigrants.

If passed section 60003 of the reconciliation bill would exempt an alien (and the spouse and children of such alien) from the numerical limitations described in the employment-based immigration section of the Immigration and Nationality Act, and allow the alien and any follow-to-join dependents to adjust their status to permanent residence provided such alien submits or has submitted an application for adjustment of status and . . . is the beneficiary of an approved petition . . . that bears a priority date that is more than 2 years before the date the alien requests a waiver of the numerical limitations; and pays a supplemental fee of $5,000.” (Emphasis added.)

If passed these legislative measures would be extremely beneficial to highly skilled workers because it would allow employees in the visa backlogs to file for adjustment of status without waiting for a priority date to become available. Following this proposal, once a labor certification application would be approved by the Department of Labor, an employee could be eligible to file his or her I-485 adjustment of status application concurrently with his or her I-140 petition for alien worker and apply for temporary work authorization while the applications would remain pending with USCIS.

The House reconciliation bill would also allow family-based immigrants inside the United States to gain permanent residence outside the numerical limits if their priority date is “more than 2 years before” and the individual pays a $2,500 supplement fee. EB-5 category (immigrant investor) applicants would need to pony up a $50,000 supplement fee. The provisions to pay a supplemental fee to receive a green card outside the numerical limits would expire on September 30, 2031.

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Welcome back to Visalawyerblog! In this blog post we share with you an overview of the State Department’s November 2021 Q&A answer session with Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, also known as “Chats with Charlie,” broadcasted every month on the State Department’s YouTube channel.

This new series features a monthly Question-and-Answer session with Mr. Charles Oppenheim and a Consular officer, where they answer many of the public’s frequently asked questions and provide a monthly analysis of each month’s Visa Bulletin. This discussion will provide details regarding what to expect in terms of the movement or retrogression of both family and employment-based preference categories on each month’s Visa Bulletin. It is with sad news that we announce that Mr. Charlie Oppenheim will soon be retiring from his position after 43 years as Chief of the Immigrant Visa Control division at the State Department. You will be greatly missed Charlie!

Be sure to subscribe to the State Department’s YouTube Channel and turn on your notifications so you do not miss any of these important updates.

Below are the highlights of the visa projections for November 2021.

DOS Q&A Session with Charlie Oppenheim: November 2021 Visa Bulletin Projections & Beyond

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Happy Monday! Welcome back to Visalawyerblog. We start the week with the highly anticipated White House release of “Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic,” which rescinds the various COVID-19 related geographic travel bans previously in place for travelers from certain geographic regions with high rates of COVID-19, for those who have been fully vaccinated for Coronavirus at 12:01 a.m. eastern standard time on November 8, 2021. The Proclamation also carves out numerous exceptions for those found “exempt” from the vaccination requirement.

Highlights of the New Proclamation

President Biden has released this new proclamation and moved away from the country-by-country restrictions that previously applied during the pandemic in favor of an air travel policy that relies on vaccination to advance the safe resumption of international air travel to the United States.

Who does this new Proclamation apply to?

The new proclamation applies to the entry into the United States of all noncitizen nonimmigrants (noncitizens who are visiting the United States or otherwise being admitted temporarily) traveling to the United States by air.

The proclamation suspends the entry of unvaccinated noncitizen nonimmigrants, except in limited circumstances, –the exemptions to the vaccine requirement– and it ensures that the entry of unvaccinated noncitizen nonimmigrants is consistent with applicable health and safety determinations made by the Director of the CDC, including a requirement that, where appropriate, such individuals agree and arrange to become fully vaccinated against COVID-19 upon their arrival.

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Exciting news for fully vaccinated travelers from Mexico and Canada! The United States Customs and Border Protection (CBP) recently published a notice in the Federal Register announcing that the United States will be lifting travel restrictions on nonessential travel for Canadian and Mexican nationals who have been fully vaccinated for COVID-19 (as defined by the Centers for Disease Control and Prevention) so that they may enter the United States at land ports of entry along the United States/Canada and United States/Mexico border.

Further, Secretary of Homeland Security Alejandro Mayorkas has said that the new measures have been made to align “with the new international air travel system that will be implemented in November.” According to Mayorkas the United States, “will begin allowing travelers from Mexico and Canada who are fully vaccinated for COVID-19 to enter the United States for non-essential purposes, including to visit friends and family or for tourism, via land and ferry border crossings.” This will be a significant step in reopening the economy as “cross-border travel creates significant economic activity in [U.S.] border communities and benefits our broader economy.”

These new measures will occur in two phases over the next few months.  First, in November, U.S. Customs and Border Protection (CBP) will begin allowing fully vaccinated travelers from Mexico or Canada to enter the United States at land and ferry ports of entry for non-essential reasons. Travelers will be required to have appropriate paperwork that provides proof of vaccination. Individuals who have not been fully vaccinated for COVID-19 will not be allowed to travel for non-essential purposes from Canada and Mexico into the United States via land and ferry ports of entry.

Second, beginning in early January 2022, DHS will require that all inbound foreign national travelers crossing U.S. land or ferry ports of entry – whether for essential or non-essential reasons – be fully vaccinated for COVID-19 and provide related proof of vaccination. This approach will provide ample time for essential travelers such as truckers, students, and healthcare workers to get vaccinated.

When will travel restrictions be lifted for vaccinated nonessential travelers?

The travel restrictions on nonessential travel for fully vaccinated Canadian and Mexican nationals will be lifted on November 8, 2021 – the same date that the relaxation will apply to fully vaccinated air travelers. Travelers crossing U.S. borders with Canada and Mexico for non-essential reasons will be required to present proof of vaccination to a Customs and Border Protection officer upon request. More details will be released by U.S. Customs and Border Protection in the coming weeks.

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Welcome back to Visalawyerblog! We have very exciting news regarding the Biden administration’s plans to rescind the Covid-19 related travel bans that have suspended and restricted entry into the United States, of immigrants and nonimmigrants, physically present within the Schengen Area, Brazil, China, India, the United Kingdom, Ireland, South Africa, and Iran since 2020.

On October 15, 2021, the White House announced that the United States will allow international travelers who are fully vaccinated against Covid-19 to enter the United States by land or air starting November 8, 2021.

This decision will lift the ban for vaccinated visitors from the affected regions.

On Friday October 15, 2021, a White House Official stated that the “CDC has already informed airlines that all FDA approved and authorized vaccines, as well as all vaccines that have an Emergency Use Listing (EUL) from the World Health Organization (WHO) will be accepted for air travel. We anticipate the same will be true at the land border. These travelers are required to be prepared to attest to vaccination status and to present proof of vaccination to a CBP officer upon request. By January, foreign nationals traveling across the land border for both essential and non-essential reasons will be required to be fully vaccinated.”

While the White House is still ironing out the complete details of the new policy including what exemptions the Biden administrations will grant to the vaccine requirements, we know that only generally applicants who are fully vaccinated against Covid-19 will be allowed to enter.

The CDC considers an individual to be fully vaccinated against COVID-19:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer-BioNTech or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration include Pfizer-BioNTech, Moderna, and Johnson & Johnson COVID-19 vaccines, while COVID-19 vaccines authorized for use by the World Health Organization include AstraZeneca/Oxford, Covishield, Sinopharm, and Sinovac.

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Welcome back to Visalawyerblog! In this blog post, we will cover the release of the November Visa Bulletin 2021 and what you can expect for employment based and family preference categories during the month of November 2021.

The Department of State releases the visa bulletin on a monthly basis, which summarizes the availability of immigrant visa numbers for that particular month. The “Final Action Dates” and “Dates for Filing Applications,” charts indicate when immigrant visa applicants should be notified to assemble and submit the required documentation to the National Visa Center.

If you would like to follow along on each month’s progress for the Visa Bulletin please be on the lookout for the “Chats with Charlie” series on the DOS YouTube Channel. 

Chats with Charlie is a monthly series recently launched by the State Department where Charlie Oppenheim, Chief of the Immigrant Visa Control & Reporting Division of the U.S. Department of State, answers your frequently asked questions regarding each month’s Visa Bulletin. Questions can be emailed to VisaBulletin@state.gov ahead of the event with “Chat with Charlie Question” in the subject line.

Adjustment of Status Filings for those lawfully residing in the United States

In general, if USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, the agency will provide instructions on the www.uscis.gov/visabulletininfo webpage that applicants may use the Dates for Filing chart. Otherwise, USCIS will indicate that applicants must use the Final Action Dates chart to determine when they may file their adjustment of status application with USCIS. If a particular immigrant visa category is “current” on the Final Action Dates chart or the cutoff date on the Final Action Dates chart is later than the date on the Dates for Filing chart, applicants in that immigrant visa category may file using the Final Action Dates chart during that month.

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We have very interesting and exciting news to report to our readers. We are happy to report that on Tuesday, October 5, 2021, a federal judge from the United States District Court for the District of Columbia, declared that the State Department cannot use the various geographic COVID-19 related Presidential Proclamations to cease the processing of visas at Embassies and Consulates worldwide.

As our readers will know, beginning in January of 2020, to protect against the rise of COVID-19 infections in the United States, the President issued a series of Presidential Proclamations that suspended and restricted entry into the United States, of immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

These Presidential Proclamations did not have a termination date and have continued to be in force to the present day. The most widely discussed ban (the Schengen visa ban “Proclamation 9993,”) applied to immigrants and nonimmigrants from 26 European countries including: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. However separate visa bans have also impacted the entry of Brazilian nationals, Chinese nationals, Iranian nationals, and Indian nationals (see the list of COVID-19 travel bans listed below.)

Since the issuance of these travel bans, U.S. Consulates and Embassies worldwide have refused to issue any visas to those who do not otherwise qualify for an exemption and have been physically present in any of the affected regions during the 14-day period preceding their entry into the United States. The only way applicants have succeeded in pushing their cases forward has been by requesting a National Interest Exception from their respective Embassy.

The COVID-19 related travel bans are as follows:

  • China Visa Ban – Proclamation 9984 issued January 21, 2020 – No termination date
  • Iran Visa Ban –Proclamation 9992 issued February 29, 2020 –No termination date
  • European Schengen Area Visa Ban—Proclamation 9993 issued March 11, 2020—No termination date
  • Ireland and UK Visa Ban –Proclamation 9996 issued March 14, 2020 –No termination date
  • India Visa Ban –Proclamation 10199 issued April 30, 2021—No termination date
  • Brazil Visa Ban—Proclamation 10041 issued May 25, 2020 –No termination date

For a complete list of COVID-19 country-specific proclamations click here.

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