Immigration Lawyers need to be prepared for the inevitability of a USCIS delay so that when the issue arises, there is a plan of action in place. While the large majority of lawyer-filed cases are approved within expected timeframes, USCIS delays do happen and any delay is a delay too many.
The American Immigration Lawyer's Association (AILA) has just released an information sheet addressing these delays, the primary audience being those who have filed without lawyer assistance and find themselves waiting months and months with no work from Immigration.
As always, my clients can reach out to me anytime for a case checkin, and if the case is outside of normal processing time, or if there is an emergency, I will always request an expedite. Once a case is over 30 days beyond the expected case processing time, it is appropriate to call USCIS for an expedite request, and to aggressively stay on top of the requests every 30 days. If I find there is no response after 2 requests, we can get creative with an alternate expedite strategy to encourage the USCIS Officer along, which we discuss on a case by case basis if the situation arises.
U.S. Citizenship and Immigration Services has finally launched a new online form for individuals and their attorneys to request an in-person appointment at their local field office without having to call the USCIS Contact Center.
This online appointment request form allows individuals or their legal representatives to request an in-person appointment at a local Field Office only for:
ADIT stamps (proof of permanent residence status),
Emergency Advance Parole (emergency travel document for example if you have a green card pending),
Immigration Judge Grants,
and other categories related to asylum.
USCIS warns that this is not a self-scheduling tool for appointments across the board; individuals cannot schedule their own appointments with USCIS. For example, this tool cannot be used to checkin on a case that is taking too long, or to request an interview for the final adjudication of a pending case.
U.S. Citizenship and Immigration Services today released policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).
For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:
The principal applicant is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Workers, in either the 1st, 2nd, or 3rd employment-based preference category;
The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when they file the Form I-765, Application for Employment Authorization;
The principal applicant has not filed an adjustment of status application;An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State’s Visa Bulletin in effect when they file Form I-765;
The applicant and their dependents provide biometrics as required;
The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; andUSCIS determines, as a matter of discretion, that the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.
The guidance covers compelling circumstances for principal applicants and their dependents and provides a non-exhaustive list of situations that could lead to a finding that compelling circumstances exist, including serious illness and disability, employer dispute or retaliation, other substantial harm to the applicant, or significant disruption to the employer.
The guidance also provides details on evidence an applicant could submit to demonstrate one of these compelling circumstances. For example, a principal applicant with an approved immigrant visa petition in an oversubscribed visa category or chargeability area, who has lived in the United States for a significant amount of time, could submit evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a potential finding of compelling circumstances. Compelling circumstances could include, if, due to job loss, the family may otherwise be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.
On March 16, 2023, USCIS announced a new procedure to obtain ADIT stamps, which constitute temporary evidence of permanent residence, typically issued while Form I-90, I-751, or N-400 applications are pending. This new procedure is due to USCIS delays in processing these applications. Please see Practice Pointer: When Is It Necessary to Request an ADIT Stamp? for an explanation of ADIT stamps and when they are needed.
Under the prior procedure, residents were required to call the USCIS Contact Center, request an InfoPass appointment, wait for that appointment to be scheduled, and then attend the appointment at the local USCIS Field Office to obtain the ADIT stamp in their passport. Due to delays at the Contact Center and limited InfoPass appointment availability, many residents were not able to get ADIT stamps in a timely manner.
Under the new procedure, USCIS will mail temporary evidence of permanent residence to those who request it. In order to make a request, residents must follow these steps:
In our communities, ICE often encounters people who are parents of minor children or who may be the legal guardians of a child or an incapacitated adult. Last summer, the Biden administration released a “policy directive” or instructions for ICE officers on how to handle these situations. The instructions include things ICE officers must do when they arrest a parent or legal guardian. Many of these instructions are about who will take care of minor children or incapacitated adults if ICE separates them from their parents or legal guardians. The
instructions put the responsibility on ICE to make sure that they do not abuse the “fundamental interests” (i.e., rights) of parents, legal guardians, and their minor child(ren) or incapacitated
H-1B season is upon us! If you have an employee you would like to sponsor, now is the time to start planning. For your convenience, we are distributing the below fact sheet through AILA. Please reach out for any questions via "Schedule a Consultation."
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced today new designs to improve security of Permanent Resident Cards (also known as Green Cards) and Employment Authorization Documents (EADs). USCIS will begin issuing the redesigned cards on Jan. 30, 2023.
The new Green Card and EAD designs contain state-of-the-art technology that continue to safeguard national security and improve service for our customers. Changes include:
- improved detailed artwork;
- tactile printing that is better integrated with the artwork;
- enhanced optically variable ink;
- highly secure holographic images on the front and back of the cards;
- a layer-reveal feature with a partial window on the back photo box; and
- data fields displayed in different places than on previous versions.
Washington, DC – The American Immigration Lawyers Association (AILA) responded to the announcement from President Biden today expanding Title 42 and humanitarian parole programs for migrants from Nicaragua, Cuba, and Haiti. The program is modeled after the Venezuela Parole Program announced in October and provides a legal pathway for some migrants from these three countries, provided they fulfill the program’s requirements, including having a U.S. sponsor. However, the announcement includes several measures that severely restrict asylum access including expansion of the Title 42 ban on asylum seekers from these countries at the border and a new version of the third-country transit ban on asylum seekers will be forthcoming in a proposed rule.
On September 9, 2022, the Department of Homeland Security (DHS) issued the final rule, pursuant to Immigration and Nationality Act (INA) §212(a)(4), with respect to the public charge ground of inadmissibility.2The final rule is effective December 23, 2022, and will apply to lawful permanent resident applications postmarked (or electronically submitted) on or after this date.
The final rule amends 8 CFR Parts 103, 212, 213, and 245 and enshrines much of what had been established policy under legacy Immigration and Naturalization Service3 1999 Interim Field Guidance. However, there are several critical changes, discussed below, that may change the practice and adjudication of public charge issues.
The CIS Ombudsman’s Office issued a reminder that starting tomorrow, December 23, 2022, the new edition of Form I-485, Application to Register Permanent Residence or Adjust Status, must be used. As with most other historical form changes, in this instance there will be no grace period. The new edition collects certain information required by the new public charge rule, which also takes effect tomorrow, December 23, 2022. For more information on the new rule, see AILA’s practice pointer.
Supreme Court Chief Justice John Roberts on Monday has temporarily extended Title 42, which was scheduled to lift on Wednesday, in an emergency action following appeal by 19 states.
Justice Roberts' brief order did not discuss the merits of the case, but instead delays expiration in order to allow full consideration of the states' appeal in light fast approaching deadline for Title 42 to end.
Roberts ordered responses to his order to be filed by Tuesday.
The states had asked the Supreme Court to intervene and keep Title 42 in place -- contending that not doing so "will cause a crisis of unprecedented proportions at the border."
USCIS has posted the following important notice regarding Form I-485:
If you file Form I-485, Application to Register Permanent Residence or Adjust Status, on or after Dec. 23, 2022, you must use the 12/23/22 edition of Form I-485 or we will reject your filing. If you file Form I-485 before Dec. 23, 2022, you must use the 07/15/22 edition of Form I-485 or we will reject your filing.
On Sept. 9, 2022, DHS published the Public Charge Ground of Inadmissibility final rule to provide clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility. The new final rule will go into effect on Dec. 23, 2022, and requires collection of information in the new 12/23/2022 edition of Form I-485.
Last week, tech giants Twitter and Facebook enacted massive layoffs totaling thousands of employees in the USA. These unanticipated layoffs have sent shockwaves through employees in the tech industry and their families, who now must scramble to secure new jobs, else face insecurity making house payments and putting food on the table. While layoffs are devastating for all employees and their families, US visa holders, many of whom have been in the United States for several years, suffer the additional hardship of losing status in the USA.
Elon Musk, who acquired Twitter just this year, terminated half of the company's 7,500 employees just one week after closing his blockbuster buyout. This has left 700 visa dependent employees without a job. In similar fashion, Facebook’s parent company, Meta, laid off 11,000 employees, or nearly 15% of their total workforce, many hundred of which depend on their employment visas to stay in the USA. Unanticipated and widespread layoffs such as those occurring at Twitter and Meta have serious consequences for these employees whose ability to stay in the country is determined by their employment status.
In this year’s midterm elections, immigration featured prominently in races across the country. With many elections still not decided, the most significant result so far is that Republicans are predicted to win the House thereby gaining the power to set the legislative agenda and conduct oversight over the Biden Administration. Kevin McCarthy, the current House Minority Leader and presumptive Speaker has announced he’ll act on immigration before anything else. “The first thing you’ll see is a bill to control the border first,” he said noting that he will not advance other immigration reforms until the border is secure. His Republican plan, the “Commitment to America” defines immigration through the lens of national security and border enforcement, which he characterizes as “millions of people who are just walking across, people on the terrorist watch list.” In October, McCarthy ruled out legislation that trades a path to citizenship for recipients of the Deferred Action for Childhood Arrivals (DACA) program with increased border security, the kind of deal that has often been the starting point for negotiations.
On August 30, 2022, the Biden Administration issued a final regulation codifying the Deferred Action for Childhood Arrivals (DACA) program. (AILA had submitted comments on the September 28, 2021, proposed rule.) AILA welcomed the rule, but also called on Congress to pass legislation permanently protecting all Dreamers, not just those who qualify for DACA under these regulations. The final rule is effective Monday, October 31, 2022, and codifies the existing DACA program and policies with limited changes.
However, a district court in Texas had issued an injunction in July 2021 that prohibits DHS from granting initial DACA requests.
AILA, or American Immigration Lawyers Association, is the preeminent national Immigration Lawyers Association. We, the member lawyers, actively work to propose policy initiatives to improve Immigration Processing, especially in the interest of family unity and priority workers, decrease in private detention, reduce backlogs, and more.
On October 4, 2022, AILA issued a policy brief providing an update on the status of ten recommendations we made in our June 2021 policy brief, as well as additional recommendations the agency can take to reduce both backlogs and delays.
US Citizenship and Immigration Services (USCIS) has just announced today that Permanent Resident Cards (Green Cards) will be extended for 24 months (as opposed to 12) after filing a proper I-90 extension. This is great news as USCIS processing times have recently climbed to over a year.
The change became effective September 26. The extensions are automatic after filing the I-90, which is the Application to Replace Permanent Resident Card. Lawful permanent residents who properly file Form I-90 to renew an expiring or expired Green Card will receive this automatic extension.
Form I-90 receipt notices had previously provided a 12-month extension. This new 24 month extension is expressly listed on the face of the receipt notices. The original expired green card in conjunction with the original I-90 receipt notice can be used to evidence status, including employment and travel authorization; although for travel we also recommend obtaining a travel stamp at a local USCIS Office before departure for a smooth reentry into the USA.
The US Citizenship and Immigration Services (USCIS) has announced that employment-based visas will most likely be used up in within the next month. The visa bulletin is a chart put out by the Department of State each month that provides the current wait times of each type of green card preference category (employment-based, family-based etc).
The September 2022 Visa Bulletin includes language in Section D foreshadowing the possible unavailability of employment-based green card numbers through September 30. Specifically, the Visa Bulletin states that the federal government anticipates that it will issue all remaining employment-based visas that are available for this fiscal year during the month of September. But is there really an impact on clients? Not really. If this happens, USCIS can approve no further employment-based green card applications until the 2023 government fiscal year, which thankfully begins on October 1, 2022.
Washington, D.C. - Today, the American Immigration Lawyers Association (AILA) and the American Immigration Council (The Council) welcomed newly published regulations that will offer more certainty for the Deferred Action for Childhood Arrivals (DACA) program and represent a positive step toward protecting some Dreamers. It has been more than 10 years since the creation of DACA which offered an opportunity for people brought to the U.S. as children who met certain criteria to apply for temporary protection from deportation.
AILA President Jeremy McKinney said, “A decade ago, we welcomed the announcement of DACA and the protections it offered Dreamers. Today, we are heartened by the efforts by the Biden Administration to preserve and protect the program itself which has been undermined by the Trump Administration and lawsuits from state governors who should know better. These regulations are essential, but laws are for lasting change. We need Congress to pass legislation permanently protecting all Dreamers—not just those who qualify for DACA under these regulations, but also the many others who have lived for years in legal limbo. That is the true solution here.”...
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