Visa Lawyer Blog

Articles Posted in Policy Manuals

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ai-generated-8570989_1280On October 11, 2024, the U.S. Citizenship and Immigration Services (USCIS) released updated guidance for requests to expedite travel-related documents and expedite requests relating to government interests. The guidance is effective immediately.

Who may file an expedite request?

Individuals who are located inside the United States may request that USCIS expedite the adjudication of their application, petition, request, appeal, or motion. USCIS considers expedite requests on a case-by-case basis and has the discretionary authority to approve or deny an expedite request.

The grounds that may be considered to file an expedite request include, but are not limited to, the following:

  1. Severe financial loss to a company or person

The updated guidance states that those filing an expedite request based on severe financial loss to a company or person must provide corroborating documentation supporting their request.

Where a company is involved, such evidence may include documentation proving that the company is at risk of failing, losing a critical contract, or required to lay off other employees.

For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.

Where an individual is applying for an expedite based on severe financial loss, evidence of a layoff or termination may be sufficient to establish financial loss.

For example, if an individual is unable to travel for work and this would result in job loss, an expedite might be necessary.

USCIS has said that “an individual’s need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.”

Additionally, severe financial loss can be established if the failure to expedite would result in a loss of critical public benefits or services.

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It’s official. The U.S. Citizenship and Immigration Services (USCIS) has confirmed that it will be increasing the validity period of work permits also known as Employment Authorization Documents (EADS) to 5 years, for certain categories of noncitizens who are employment authorized incident to their immigration status and those who must apply for employment authorization including:

  • Refugees
  • Asylees
  • Noncitizens paroled as Refugees
  • Noncitizens granted Withholding of Removal
  • Noncitizens with pending applications for Asylum or Withholding of Removal
  • Noncitizens with pending applications for Adjustment of Status (green cards) under INA 245
  • Noncitizens seeking Suspension of Deportation or Cancellation of Removal

Additionally, USCIS has released policy guidance clarifying that the Arrival/Departure Record (Form I-94) may be used as evidence of an alien’s status and employment authorization for certain EAD categories that are employment authorized incident to their immigration status or parole.

These changes can be found in the USCIS Policy Manual, and are also described in USCIS Policy Alert 2023-27 dated September 27, 2023.

What’s changed?

Previously, USCIS policy allowed for a maximum 2-year validity period of Employment Authorization Documents (EADs) for most categories of immigrants indicated above, and a maximum 1-year validity period for noncitizens paroled as refugees and those seeking suspension of deportation or cancellation of removal.

USCIS is now revising its guidelines to increase the maximum EAD validity period for these categories up to 5 years.

The purpose of increasing the validity period is to reduce the frequency in which noncitizens must file Form I-765 Application for Employment Authorization to renew their work permits (EADs).

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We start off the week with some exciting news for naturalization applicants filing N-400, Application for Naturalization.

On December 9, 2022, the U.S. Citizenship and Immigration Services (USCIS) announced new updates to its policy guidance including a new procedure that will allow USCIS to automatically extend the validity of a Permanent Resident Card for a period of 24-months, through the issuance of an N-400 Application for Naturalization, receipt notice. This means that generally Permanent Residents with a pending N-400 Application, will no longer need to file Form I-90 to renew their green cards.

This policy is effective as of today, Monday, December 12, 2022, and applies to all applications filed on or after December 12, 2022.

Lawful permanent residents who filed for N-400 naturalization PRIOR to December 12, 2022, will NOT receive an N-400 receipt notice with the 24-month extension, and will be required to file Form I-90 if their green card expires, or request an appointment to receive an ADIT stamp in their passport to maintain valid evidence of their status as required under the law.

What You Need to Know

Previously, naturalization applicants who did not apply for naturalization at least six months before the expiration date on their green cards needed to file Form I-90, Application to Replace Permanent Resident Card, (green card) to maintain proper documentation of their lawful status.

Applicants who applied for naturalization at least six months prior to their green card expiration were eligible to request an appointment to receive an Alien Documentation, Identification, and Telecommunications (ADIT) stamp in their passport, which served as temporary evidence of their LPR status.

This policy is no more.

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Have you ever wondered: is there an exception to the COVID-19 vaccine requirement mandated by the U.S. Citizenship and Immigration Services (USCIS) for those undergoing the green card process?

In this blog post, we share with you how our office was able to obtain successful waivers of the COVID-19 vaccine requirement, information about what exceptions exist to the vaccine requirement, the criteria that must be proven to obtain a vaccine waiver, and the resulting victories we gained on behalf of our clients.

We also describe how we were able to accomplish vaccine waiver approvals, by presenting an abundance of documentary evidence to help these individuals prove their case.

An Overview: What is the COVID-19 Vaccination Requirement

In response to the rapid rise in Coronavirus cases, the U.S. government announced that starting October 1, 2021, those applying for permanent residency (a green card) within the United States, or an immigrant visa abroad, would be required to be fully vaccinated against COVID-19 (one or two doses depending on the vaccine taken).

The Medical Examination Form I-693

As part of the green card process, applicants are required to complete a medical examination conducted by a civil surgeon on Form I-693, to establish that they are not inadmissible to the United States on public health grounds. The government made it a matter of policy as of October 1, 2021, to require all those subject to the medical examination requirement to complete the COVID-19 vaccination to prove their admissibility (and therefore) receive approval of their green cards.

The U.S. Citizenship and Immigration Service announced that this policy would apply “prospectively to all Forms I-693 [medical examinations] signed by the civil surgeons” on or after October 1, 2021. The agency also took steps to revise Form I-693 and its instructions to include the new vaccination requirement.

Its policy guidance followed the recommendations of the U.S. Centers for Disease Control and Prevention’s (CDC) August 17, 2021, update to the Technical Instructions for Civil Surgeons. The CDC update requires applicants subject to the immigration medical examination to “complete the COVID-19 vaccine series [in addition to the other routinely required vaccines] and provide documentation of vaccination to the civil surgeon or panel physician in person before completion of the medical examination.”

Does the COVID-19 vaccination requirement also apply to those seeking immigrant visas at U.S. Embassies and Consulates abroad?

Yes. The government made clear that the COVID-19 vaccination requirement applies to those seeking to adjust their immigration status within the United States, as well as applicants applying for immigrant visas at U.S. Embassies and Consulates abroad. That is because complete vaccination is necessary for a medical examination conducted by a civil surgeon or physician abroad, as part of the green card admissibility process.

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couple-g86465ecab_1920USCIS Updates Policy Guidance Highlighting Discretionary Power to Waive In-Person Interviews for I-751 Applicants

On April 7, 2022, the United States Citizenship, and Immigration Services (USCIS) updated its Policy Manual on the interview waiver criteria for family-based conditional permanent residents filing to remove the conditions on permanent residence on Form I-751 Removal of Conditions.

Under the law, those who attained their permanent resident status (green card) based on a marriage that was less than 2 years old at the time of approval, receive a conditional green card, also known as “conditional permanent residency.”

This conditional green card is issued for a 2-year period. Prior to the expiration of the 2-year green card, the applicant must file Form I-751 to remove their conditions on permanent residence within the 90-day window before it expires.

The Immigration and Nationality Act stipulates that a conditional permanent resident must appear for an in-person interview as part of the I-751 Removal of Conditions adjudication process, so that the immigration officer can verify the accuracy of the information included in the petition and determine whether the conditions on permanent residence should be removed.

The Act also carves out discretionary powers that allow USCIS officers to authorize waiver of the in-person interview.

The April 2022 updated Policy Guidance clarifies that USCIS officers may consider waiving an interview, if, generally, the applicant meets all eligibility requirements for removal of conditions, and the record contains sufficient evidence for approval, and there is no indication of fraud, misrepresentation, criminal bars, or such factors that would require an interview.

The Guidance also eliminates automatic referrals in cases where a conditional permanent resident obtained status by way of Consular processing.

The language of the pertinent section indicates the following:

Volume 6: Immigrants, Part I, Family-Based Conditional Permanent Residents, Chapter 3, Petition to Remove Conditions on Residence [6 USCIS-PM I.3]

CPRs who file a Form I-751 must appear for an interview at a USCIS field office, unless USCIS waives the interview requirement. USCIS officers may consider waiving the interview in cases where:

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In this blog post, we share great news for E and L dependent spouses!

As we previously reported on our blog, pursuant to a new USCIS policy, E and L nonimmigrant dependent spouses are now considered employment authorized “incident to their status.”

This means that upon admission and issuance of a valid I-94 arrival/departure document showing E or L-2 spousal status, E and L nonimmigrant spouses will automatically be authorized to work without the need to apply for an Employment Authorization Document (EAD). Previously, E or L dependent spouses were required to apply for an EAD by filing Form I-765 Application for Employment Authorization with USCIS.

How does this system work?

Effective January 31, 2022, CBP Office of Field Operations (OFO), in coordination with both USCIS and Department of State, began issuing new classes of admission on the I-94 arrival/departure record for E and L dependent spouses entering the U.S. at a Port of Entry. The new I-94 admission records indicate an “S” designation after the E or L class of admission to indicate that the spouse is authorized to work in the United States. The “S” designation is meant to indicate that the E or L nonimmigrant is a dependent “spouse” of a principal E or L visa holder. Please note that the new designation will not explicitly state that the spouse is “work authorized,” however the “S” designation signals to U.S. employers that the spouse is authorized to work for I-9 employment verification purposes.

Spouses who applied for an extension of their E or L visa status with USCIS, will receive I-94s that carry the new “S” designation at the bottom of their approval notices.

How can I prove that I am authorized to work as an E or L dependent spouse?

If you are an L or E dependent spouse who wishes to work in the United States without having to obtain an Employment Authorization Document (EAD), you must present an I-94 admission document with the “S” spousal annotation.

CBP has confirmed that the agency has been issuing new I-94’s with the “S” spousal annotation to E and L spouses who gained admission to the United States on or after January 31, 2022.

How does the annotation look?

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E/L Spousal Annotation

The I-94 will be annotated with an “S” next to the E or L-2 status designation, signaling to prospective employers that the individual is authorized to work during the validity period of the I-94. Spouses admitted in E or L-2 status should review their I-94 document immediately upon admission to ensure that it contains the appropriate annotation.

What if I gained admission to the United States prior to January 31, 2022 and I do not have the spousal designation on my I-94?

If you are an E or L dependent spouse who gained admission to the U.S. prior to January 31, 2022, and you do not have the “S” spousal annotation on your I-94, you must contact your closest CBP Deferred Inspection Office to determine whether they may, in their discretion, amend your I-94 arrival/departure record to include the “S” spousal annotation without requiring international travel. CBP may or may not agree to amend your I-94.

In cases where CBP will not amend your I-94 to include the spousal annotation, you may consider discussing with your immigration attorney whether you should depart the United States and re-enter at a U.S. port of entry to secure the new spousal annotated I-94. You must exercise caution before making any international travel plans. An immigration attorney will need to evaluate whether you have the proper documentation to gain re-admission after temporary foreign travel and determine whether your planned travel would result in the issuance of a new annotated I-94. Certain brief international trips may not result in a new I-94 issued by CBP.

Please note that if you are an E or L spouse admitted prior to January 31, 2022, and you have filed an application to extend your L or E status while in the U.S., USCIS is expected to issue the “S” spousal annotation on I-94’s printed at the bottom of USCIS-issued approval notices.

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Welcome back to the start of a brand-new week! We are excited to announce brand new developments in the world of immigration specifically for U visa victims of crimes.

On June 14, 2021, the United States Citizenship, and Immigration Services (USCIS) issued a new policy alert, informing U visa applicants that the agency will now be exercising its discretion to issue four year Employment Authorization Documents (EADs) (also known as work permits),  as well as four-year “deferred action” status to certain U visa applicants, including those who have filed new U visa petitions, and those whose U visa petitions remain pending with USCIS, based on a new discretionary process called a “bona fide determination.”

This is a groundbreaking new development for U visa applicants because victims of crime will now be eligible to receive an Employment Authorization Document (EAD), as well as “deferred action” status, while their U visa applications remain pending with USCIS. With this new policy change, U visa applicants will no longer need to wait 5+ years for their U visa approval, in order to become eligible for an Employment Authorization Document (EAD), and be protected from deportation.

Previously, only principal U visa applicants whose petitions were approved by USCIS, were authorized to work based on their approved status with immigration. Only those with an approved Petition for U Nonimmigrant Status (Form I-918) would automatically be issued an Employment Authorization Document (EAD). All other applicants with pending petitions were forced to wait in the visa queue for a visa to become available due to the mandatory U visa cap. This process on average has taken up to 5 years.

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As we approach the end of the year, in this blog post, we look back at the major policy changes implemented by the Trump administration in the year 2019 that have had a profound impact on the way our immigration system functions today.

JANUARY 

Government Shutdown Woes

The start of 2019 began on a very somber note. From December 22, 2018 to January 25, 2019 Americans experienced the longest government shutdown in American history (lasting a period fo 35 days) largely due to political differences between the Republican and Democratic parties on the issue of government funding to build a border wall along the U.S. Mexico border.

The government shutdown created a massive backlog for non-detained persons expecting to attend hearings in immigration court. Because of limited availability of federal workers, non-detained persons experienced postponements and were required to wait an indeterminate amount of time for those hearings to be re-scheduled.

To sway public opinion, 17 days into the government shutdown, the President delivered his first primetime address from the Oval office where he called on Democrats to pass a spending bill that would provide $5.7 billion in funding for border security, including the President’s border wall.

With no agreement in sight, on January 19, 2019, the President sought to appease Democrats by offering them a compromise solution. In exchange for funding his border wall and border security, the President announced a plan that would extend temporary protected status of TPS recipients for a three-year period and provide legislative relief to DACA recipients for a three-year period. The President’s proposal however did not provide a pathway to residency for Dreamers, and was quickly rejected by Democrats.

On January 25, 2019, with still no solution and pressure mounting, the President relented and passed a temporary bill reopening the government until February 15, 2019.

Meanwhile, immigration courts across the country were forced to postpone hundreds of immigration hearings, with Minnesota, Pennsylvania, and Kentucky being the most deeply affected by the shutdown.

Changes to the H1B Visa Program

On January 30, 2019, the Department of Homeland Security announced proposed changes to the H-1B visa program including a mandatory electronic registration requirement for H1B petitioners filing cap-subject petitions beginning fiscal year 2020, and a reversal in the selection process for cap-subject petitions. The government outlined that it would first select H-1B registrations submitted on behalf of all H-1B beneficiaries (including regular cap and advanced degree exemption) and then if necessary select the remaining number of petitions from registrations filed for the advanced degree exemption. Moreover, only those registrations selected during fiscal year 2020 and on, would be eligible to file a paper H1B cap petition.

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Last week, the United States Citizenship and Immigration Services (USCIS) updated its policy manual to clarify acts that may prevent a naturalization applicant from meeting the good moral character requirement.

A successful naturalization applicant must show that they have been, and continue to be a person of good moral character during the statutory period prior to filing the application for naturalization and up until taking the Oath of Allegiance. The statutory period is generally give years for permanent residents of the United States, three years for applicants married to U.S. citizens, and one year for certain applicants applying on the basis of qualifying U.S. military service.

Two or more DUI Convictions

Firstly, the policy manual clarifies that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination (Matter of Castillo-Perez). However, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses.

DUI refers to all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.

Post-Sentencing Orders

Secondly, the policy manual clarifies the definition of “term of imprisonment or a sentence” to mean, an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence are only relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.

Furthermore, the policy guidance provides the following as examples of unlawful acts recognized by case law as barring good mood character (this list is not exhaustive):

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A new policy memorandum will change the way the accrual of unlawful presence is calculated for F, J, and M non-immigrant visa holders, and their dependents, beginning August 9, 2018, and onwards. The accrual of unlawful presence may lead to a bar preventing the foreign national from re-entering the United States.

In 1997 Congress began implementing a policy that governed the admissibility of individuals in F, J, and M non-immigrant visa status. Pursuant to that policy, nonimmigrants who overstayed their visa for more than 180 days could be subject to a 3-year bar, while individuals who overstayed for more than one year could be subject to the 10-year bar, for violating the terms of their visa status.

However, this class of individuals only began to accrue unlawful presence, where an immigration judge ordered the applicant excluded, deported, or removed from the United States, or where USCIS formally found a nonimmigrant status violation, while adjudicating a request for another immigration benefit, such as adjustment of status. This policy applied to all non-immigrants who were admitted or present in the United States in duration of status (D/S).

New Policy

On August 9, 2018, USCIS released a policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” superseding the previous 1997 policy, in order to reduce the number of overstays, and implement a new policy regarding how to calculate unlawful presence for F, J, and M non-immigrants and their dependents.

Pursuant to the new policy, from August 9th onwards, “F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence,” as follows:

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