DACA: Where We’ve Been, Where We’re Going

A brief overview of DACA’s long and winding road and its current status

DACA

By Molli Freeman-Lynde, Immigration Attorney

Origins of DACA

The Obama administration created the Deferred Action for Childhood Arrival program, known as DACA, on June 15, 2012. The program was created to provide relief from deportation and work authorization for a temporary period of two years at a time, renewable indefinitely, for young undocumented immigrants who met certain requirements.

Applicants qualify for DACA if they:

  1. Were under the age of 31 as of June 15, 2012;
  2. Arrived in the United States before reaching their 16th birthday;
  3. Continuously resided in the United States from June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of applying for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.(Source: https://www.uscis.gov/DACA#guidelines).

Because DACA was created through executive and not legislative action, it does not and cannot provide any permanent legal status to recipients. Nonetheless, it has been a critical form of relief for over 800,000 young adults living and working in the U.S. since its creation. Individuals who are granted DACA have work authorization and are generally able to secure better jobs with higher pay, more benefits, and greater stability than undocumented immigrants. They also face less uncertainty about their day-to-day protection from deportation.

Legal Challenges to DACA

The DACA program became a focal point of the Trump administration’s anti-immigrant platform, and in September 2017 the administration announced that they were ending DACA. This sudden announcement sparked years of back-and-forth litigation that continues to this day. Highlights of this litigation include the following.

In June 2020, the Supreme Court ruled in a narrow holding that the Trump administration violated procedural requirements in their manner of terminating DACA, without ruling on the legality of the program itself. While limited in scope, this ruling ended the Trump administration’s effort to terminate the DACA program.

Despite this ruling, USCIS under Trump continued to limit DACA applications. In a July 2020 memorandum, the agency announced that it would not process new applications and that it would limit DACA renewals to one year of validity instead of two. This USCIS memorandum was reversed by a federal judge in December 2020, who ordered the U.S. government to fully restore DACA and resume processing all new applications.

When President Biden took office in January 2021, one of his first executive orders directed the Department of Homeland Security to “take all actions … appropriate … to preserve and fortify DACA.” This was welcome news for DACA recipients, who had been dealing with the changing rules for several years.

Unfortunately, the reprieve was short lived. On July 16, 2021, a federal judge in Texas ruled that the entire DACA program is unlawful. (You can access a pdf of the decision here: https://www.uscis.gov/DACA.) The judge’s initial order allows current DACA recipients to continue to hold DACA and for USCIS to process renewal applications, but it halts processing for new applications pending a final disposition of the court case. The Biden administration has appealed the decision to the 5th Circuit and that appeal is currently pending.

The Future of DACA

While the most recent District Court decision winds its way through the court system, USCIS is processing DACA renewals and accepting but not adjudicating new applications. DACA recipients with valid employment authorization documents (“EAD”) continue to be eligible for employment. Employers who seek to employ a DACA recipient should verify that the individual has an EAD with the code “C33” and should note the expiration date. DACA recipients do not benefit from an automatic extension of work authorization and should file applications to renew their DACA and employment authorization 150 days prior to expiration to avoid a gap in coverage.

With the fate of DACA resting once again on the courts, DACA recipients are increasingly looking for other avenues to secure temporary or permanent status. Congressional action could provide a path to permanent residence for DACA recipients and similarly situated young undocumented immigrants. There are a range of proposals that are being considered for inclusion in upcoming legislation, but it is unclear what the final version of the legislation would look like or whether it can garner enough support for passage.

Employment-Based Sponsorship for DACA Recipients

In the meantime, individuals who hold DACA may be eligible for employment-based sponsorship for temporary or permanent lawful status depending on the specifics of their case. If you are an employer looking for more information about how to sponsor an employee who currently holds DACA, please contact your Parker Gallini immigration attorney for a consultation.

Posted in Immigration Law

Immigration Quick Takes — November 2021

Current Status of Travel Restrictions and Vaccine Requirements

On October 25, President Biden issued A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic. Effective as of November 8th, the Proclamation revokes the country-by-country restrictions implemented early in the COVID-19 pandemic, replacing them with new policies aiming to limit the risk of COVID-19 variants being introduced and spread throughout the United States. With the revocation of the country-by-country restrictions, National Interest Exceptions (NIEs) are no longer required for foreign nationals traveling from formerly-restricted countries and regions including China, India, and the Schengen Area, among others. 

travel proclamation

The new Proclamation restricts travel for certain individuals who are not fully vaccinated against COVID-19. In limiting the restrictions in this way, the Proclamation also establishes that fully vaccinated individuals can resume travel to the United States in accordance with Centers for Disease Control (CDC) guidelines. Under the current guidelines, to travel to the U.S. by plane, an individual must be fully vaccinated, must show a negative COVID-19 test result or documentation of recovery from COVID-19, and must wear a mask during transit, with limited exceptions. Testing requirements may vary depending on age and vaccination status. 

Under the Proclamation, the CDC is also responsible for implementation and enforcement of the new travel restrictions, including defining and specifying accepted COVID-19 vaccines. As of today, accepted COVID-19 vaccines include:

  • FDA Authorized/Approved: Moderna, Johnson & Johnson and Pfizer-BioNTech
  • WHO Approved: Johnson & Johnson, Pfizer-BioNTech, Moderna, AstraZeneca, Covaxin,  Covishield, BIBP/Sinopharm, Sinovac

The CDC is regularly publishing up to date information regarding travel requirements and recommendations on their website and has developed an online tool to guide individuals through the requirements for air travel and entry to the U.S., which is available here.  

H-4 and L-2 Work Authorization Settlement

The American Immigration Lawyers Association (AILA) and litigation partners reached a settlement with USCIS after suing the agency over the long-delayed processing times for L-2 and H-4 dependent EADs (Shergill, et al. v. Mayorkas, 11/10/21). The settlement establishes that H-4 and L-2 spouses with EADs will receive an automatic extension of employment authorization for 180 days while an EAD renewal is pending with USCIS provided that the underlying H-4 or L-2 status continues to be valid based on an unexpired I-94. In addition, USCIS has agreed to provide L-2 spouses work authorization incident to status, meaning that EADs will not be required for the spouses of L-1 intracompany transferees.

Note that the 180-day automatic extension will, in practice, be of limited value to H-4 spouses as it requires that they be maintaining  H-4 status authorized by an unexpired I-94 to be eligible for the extension of work authorization. Commonly, an H-4 EAD extension is filed together with an H-4 extension of status application. While a timely-filed extension of status application allows the applicant to remain in the U.S., it does not provide valid H-4 status until approved. This means that when the H-4 spouse’s I-94 expires, even with an extension of status application pending, their 180-day automatic extension of work authorization will expire at the same time. While the same rule applies to L-2 spouses, the policy change providing L-2 spouses with work authorization incident to status will eliminate the need for an L-2 spouse to have a valid EAD and will make the 180-day automatic extension rule irrelevant to L-2 spouses.

These significant policy changes will come into effect within 120 days of the November 2021 Effective Date of the settlement. Further guidance from USCIS is updating policy to address I-9 requirements and to confirm that spouses in E-2 status will also be work authorized incident to status.  

DOL Requests Employer Input on Remote I-9 Flexibility

In March 2020,  the Department of Homeland Security (DHS) announced flexibility in complying with I-9 requirements due to the COVID-19 pandemic, allowing employers to defer physical presence requirements and authorize remote examination of documents. DHS is now seeking public input on employer and employee experiences with the remote I-9 process to assess the costs and benefits of continuing and/or making permanent remote examination of documents. This is an opportunity for individuals to provide feedback that could encourage DHS to make remote I-9 completion a permanent option for employers and employees. DHS is accepting comments until December 27, 2021. 

Individuals can submit comments online here.

Posted in Immigration Law

Adjudication Trends: Before and After Trump

USCIS RFE data shows a return to sanity in adjudications for some nonimmigrant case types post-Trump presidency, while others have seen little or no improvement

Adjudication Trends

By Grant W. Godfrey, Immigration Attorney

The Trump administration articulated early on a broad policy of protecting the American labor force.  In the immigration context, this policy was implemented in a wide variety of ways.  In the area of skilled immigration (H-1B, L-1, O-1 and related skilled nonimmigrant visas) this was done primarily through inconsistency in the adjudication process.  Companies and foreign nationals saw a high percentage of these skilled worker filings being challenged by the U.S. Citizenship and Immigration Services (“USCIS”) through the issuance of expansive Requests for Evidence (“RFEs”) which often did not take account of the facts presented.  With this increase in RFEs came a corresponding increase in denials.  

The U.S. Citizenship and Immigration Services recently released data about its RFE and denial trends from October 2016 to June 2021 for the following relevant nonimmigrant classifications: H-1B, L-1A/L-1B (combined), O-1/O-2 (combined) and TN status.  Note that all results are related to USCIS filings, and do not incorporate any information from adjudications performed at the border by Customs and Border Protection (“U.S. Customs”) or at foreign embassies and consulates by the State Department (“DOS”).  

Since this data includes periods before, during, and after the Trump Presidency, now is a good time to take a look at approval rates, RFE rates, and denial rates for each of these periods.  For the purposes of this article, the data from Fiscal Year 2016 (October 2015 to September 2016) represents the period before President Trump.  The data from Fiscal Year 2019 (October 2018 to September 2019) represents the period during his Presidency where he was implementing policies that had not yet been struck down by the courts.  Finally, for the Biden presidency, the data only covers the first five months, but it provides us with clear adjudication trends.     

H-1B Petitions

Period

Overall Approval %

RFE %

Approval after RFE %

Overall Denial %

Pre-Trump

93.9%

20.8%

78.9%

6.1%

During Trump

84.8%

40.2%

65.4%

15.2%

Post Trump

97.0%

18.2%

86.1%

3.0%

There is little doubt that H-1B petitions suffered greatly under the Trump presidency.  Before and after his presidency, approximately 95% of H-1B petitions were approved.  However, during his presidency H-1B approvals dipped to approximately 85% under his watch.  The RFE rate also doubled under President Trump’s watch, with more than two times the number of cases being denied after an RFE than had been before his presidency.  During the first five months of President Biden, approval and RFE rates have improved to rates that were better than those seen at the end of President Obama’s term.

L-1A/L-1B Petitions

Period

Overall Approval %

RFE %

Approval after RFE %

Overall Denial %

Pre-Trump

85%

32.1%

55.6%

15.0%

During Trump

71.9%

54.3%

50.8%

28.1%

Post Trump

77.9%

57.0%

65%

22.1%

Unfortunately, the dataset does not distinguish between L-1A and L-1B petitions.  This is important because since it is typically easier to produce external evidence of managerial authority for an L-1A petition than it is to demonstrate someone’s specialized knowledge for an L-1B.  As a result, RFE and denial rates for L-1A petitions are always lower than for L-1B cases.  This data set combines the two sets of statistics, so we cannot extrapolate whether the change in statistics is due to one or both of the statuses being looked at differently by adjudicators.   During the Trump presidency, approval rates for L-1As and L-1Bs dropped by approximately 15%, RFE rates increased by over 20%, and the approval rates after an RFE dropped by approximately 5%.  During the first few months of the Biden presidency, there’s been only a modest improvement in approval and in the denial rate, making  up only about half of the ground that was lost under the Trump presidency.

O-1/O-2 Petitions

Period

Overall Approval %

RFE %

Approval after RFE %

Overall Denial %

Pre-Trump

92.9%

22.6%

70.0%

7.1%

During Trump

90.8%

26.4%

66.1%

9.2%

Post Trump

89.7%

30.9%

67.3%

10.3%

Unlike H-1Bs and L-1s, where there have been at least modest improvements in adjudications under President Biden, O-1 and O-2 filings are faring worse than they were under President Trump.  Approval rates have dropped slightly, RFE rates have increased at a noticeable rate, and overall denial rates have also increased under President Biden.  Anecdotally, the firm has noticed this shift, and we believe that when the next data set is released, the numbers will be even worse under President Biden.  This continued downward trend is concerning especially because neither President Biden nor the Department of Homeland Security have suggested any concerns with this visa category or signaled any change in their adjudication standards.   

TN Petitions

Period

Overall Approval %

RFE %

Approval after RFE %

Overall Denial %

Pre-Trump

90.7%

23.6%

64.2%

9.3%

During Trump

89.8%

24.5%

60.1%

10.2%

Post Trump

91.7%

24.3%

70.4%

8.3%

The data from this set only captures TN filings made with USCIS, so this is an incomplete view of all TN filings.  U.S. Customs, which handles many TN applications, does not maintain statistics on TN adjudications, and we have not incorporated any data from the DOS because they do not have an equivalent to an RFE rate that they maintain statistics on.  Even though the United States, Canada, and Mexico entered into a new free trade agreement under President Trump called the United States-Mexico-Canada Agreement (“USMCA”), the approval, denial, and RFE rates remained relatively stable.  The main difference is that under President Trump, an RFE was more likely to be denied than it was before or after his presidency.

Overall these numbers confirm the extremely negative impact that adjudication policies under Trump had on skilled immigration.  They also show that while President Biden has really focused on reforming adjudication procedures for H-1B petitions and to a lesser extent for L-1 petitions, other  categories remain approximately the same as they were under President Trump, or in the case of O-1/O-2 filings, have actually gotten worse.  Our hope is that as President Biden is able to implement his skilled immigration agenda that he does not forget that there is more to immigration than H-1B visas, and that he especially takes a look at the adjudication standards and practices for L and O visas.

RFE Rates Summary Chart

RFE Rates Summary Chart

Posted in Immigration Law

Immigration Quick Takes – October 2021

November Visa Bulletin

October red leafAs was the case in October, in November, the U.S. Citizenship and Immigration Services (USCIS) will continue to accept Employment-Based Adjustment of Status applications based on the Visa Bulletin’s Dates for Filing chart. The backlogged dates in the Dates for Filing chart are more advanced that the dates in the Final Action Dates chart, which means that foreign nationals can file their I-485 Adjustment of Status application earlier than a visa number is available to them. While USCIS’ use of the Dates for Filing chart is a positive development that allows more applicants to file for permanent residency, the November Visa Bulletin also contains a considerable retrogression in the EB-3 category for India and China.

The November Visa Bulletin’s Dates for Filing have shifted significantly overall for Indian nationals, with the EB-2 category advancing six (6) months from to July 8, 2012 to January 8, 2013 and the EB-3 category retrogressing nearly two (2) years from January 8, 2014 to January 22, 2012. Final Action Dates for India advanced by three (3) months for EB-2 and retrogressed about two (2) years for EB-3, indicating that these cases are likely to continue facing long processing times.

China’s Dates for Filing for EB-2 advanced from September 1, 2018 to February 1, 2019, while EB-3 Dates for Filing retrogressed from January 15, 2019 to April 1, 2018. Final Action Dates for China advanced by approximately four (4) months for the EB-2 category and retrogressed by approximately ten (10) months for the EB-3 category. All other EB-1, EB-2, and EB-3 dates are current for Filing and Final Action.

As was the case in Fiscal Year 2021, a higher-than-usual number of employment-based immigrant visas is available for Fiscal Year 2022 due to slowed consular processing of family-based immigrant visas during the Covid-19 pandemic. USCIS has publicly committed to adjudicating as many applications as possible to use up these numbers. Applicants with pending cases should coordinate with their Parker Gallini attorney to ensure that all documents, including medical exams, are ready for submission to USCIS as soon as requested.

Current Status of Regional Travel Bans and Visa Issuance

On Friday, October 15, the White House announced that Covid-19 travel restrictions will end for fully vaccinated foreign nationals, effective November 8, 2021. This announcement builds on Secretary of Homeland Security Mayorkas’ October 12 announcement that the Department of Homeland Security (DHS) will amend current restrictions to allow non-essential travel from Canada and Mexico for fully vaccinated individuals beginning in November 2021, with essential travel allowed for unvaccinated individuals from Canada and Mexico until January 2022, when proof of vaccination will become required for all inbound foreign national travelers at land and ferry Ports of Entry from Canada and Mexico.

The current restrictions began in January 2020 with a ban on air travelers from China and have come to include restrictions on air and land travel from over 30 countries, including many European countries, India, Brazil, South Africa, and others. The restrictions have prohibited US entry, and in some cases visa issuance, for foreign nationals who could not demonstrate exemption based on familial ties to the U.S. or qualify for an exception to the restrictions based on U.S. national interests.

Specific guidance on the new travel policy is in progress and is ultimately expected to apply both to international air travel and land border and ferry crossings from Canada and Mexico. To date, the U.S. Centers for Disease Control (CDC) confirmed that only vaccines approved or authorized by the U.S. Food and Drug Administration (FDA) or listed for emergency use by the World Health Organization (WHO) will be accepted for air and land travel to the U.S. Currently, this includes:

  • FDA Authorized/Approved: Moderna, Johnson & Johnson and Pfizer-BioNTech
  • WHO Approved: Moderna, Johnson & Johnson, Pfizer-BioNTech, Oxford-AstraZeneca/Covishield, Sinopharm, and Sinovac

USCIS Extends RFE Flexibility

USCIS has extended flexibility for applicants and petitioners responding to Requests for Evidence, Notices of Intent to Deny or Revoke, and certain other requests and notices issued between March 1, 2020 and January 15, 2022, inclusive. This accommodation allows response to a USCIS request, notice, or decision up to 60 calendar days after the due date listed on the notice.

DHS/ICE Announce New Worksite Enforcement Strategy

On October 12, DHS Secretary Mayorkas directed the U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and USCIS to take actions to support more effective enforcement of wage protections, workplace safety, and labor rights. Specifically, Sec. Mayorkas has called for an immediate cessation of mass worksite operations that have historically resulted in the arrests of hundreds of undocumented workers without any significant consequences for exploitative employers who were known to have used these operations as a retaliation tool against worker cooperation in workplace standards investigations.

In addition, Sec. Mayorkas has also called for review of all DHS policies that impact the enforcement of employment and labor standards and for the development of new policies and agency plans to facilitate the reporting, investigation, and prosecution of unscrupulous employers, including plans that protect the rights of noncitizen workers by providing for the consideration of relief for undocumented workers who participate actively in workplace investigations. Both DHS Sec. Mayorkas and U.S. Department of Labor Secretary Marty Walsh have announced that both Departments will collaborate to ensure the well being of individuals and the fairness of the labor market by focusing agency efforts and resources on employers who create an unfair labor market by engaging in illegal acts ranging from the payment of substandard wages to the imposition of unsafe working conditions and facilitation of human trafficking and child exploitation. New policy recommendations are expected in the coming months.

Posted in Immigration Law

Immigration Quick Takes — September 2021

US immigration news

October Visa Bulletin

Next month, USCIS will accept Employment-Based Adjustment of Status applications based on the October Visa Bulletin’s Dates for Filing chart. The October Visa Bulletin’s Dates for Filing advance to July 8, 2012 (EB-2) and January 8, 2014 (EB-3) for India and to September 1, 2018 (EB-2) and January 15, 2019 (EB-3) for China. All other EB-1, EB-2, and EB-3 dates are current. Final Action Dates for Employment-Based Preference Cases in the October Visa Bulletin all remain the same as the September Visa Bulletin.

USCIS Field Offices, which are the regional and local offices responsible for the final stages of green card approval, continue to focus efforts on approving as many pending applications as possible as the USCIS fiscal year ends on September 30, 2021. Applicants with pending cases should coordinate with their Parker Gallini immigration attorney to ensure that all documents, including medical exams, are ready for submission to USCIS as soon as requested.

Immigration Proposals Included in Build Back Better Reconciliation Bill

Legislative proposals included in the U.S. House Judiciary Committee’s latest markup of the Build Back Better Reconciliation bill create a pathway to citizenship for an estimated 8 million people, including Dreamers, Temporary Protected Status and Deferred Enforced Departure holders, and Farm Workers and other Essential workers; recapture unused family-based visas, Diversity Visas, and employment-based visas; and increase funding for USCIS.

The legislative proposal recaptures visas lost due USCIS’s slow processing of immigrant visa applications to restore around 500,000 unused visas. The proposal accounts for unused family- and employment-based visas authorized from fiscal years 1992 through 2021. While the majority of recaptured visas will go to family-based applicants, the proposal will help to alleviate family- and employment-based backlogs. The proposal also includes $2.8 billion to increase USCIS capacity, supporting adjudications and reducing processing backlogs.

Current Status of National Interest Exceptions

Thirty-three countries remain subject to COVID-19 travel restrictions affecting foreign nationals’ travel to the United States. The U.S. Department of State (DOS) continues to accept requests for National Interest Exceptions (NIEs) from the travel restrictions based on evolving criteria benefitting U.S. interests, such as support of critical U.S. infrastructure or direction of significant economic activity. Each consular post is responsible for processing NIEs within the post’s jurisdiction, and all approved NIEs are valid for 12 months from the date of approval when used for the same purpose for which they were granted. This 12-month period of validity also applies to newly issued NIEs. While the longer validity of NIEs is intended in part to reduce wait times for new waivers, applicants are still seeing delays of 30-60 days or longer for NIE adjudications at some consular posts. Applicants in need of a NIE should consider applying as far in advance of planned travel to the U.S. as possible. U.S. Citizens, Lawful Permanent Residents (green card holders), and foreign nationals with U.S. citizen spouses or minor children remain exempt from the travel restrictions.

Current Status of USCIS RFE Flexibility

In March 2020, USCIS announced flexibility for applicants and petitioners responding to Requests for Evidence, Notices of Intent to Deny or Revoke, and certain other requests and notices. In June 2021, USCIS announced that this accommodation extended to qualifying requests or notices issued between March 1, 2020 and September 30, 2021, inclusive. Unless USCIS extends this accommodation again this month, requests received on October 1, 2021 or after will require response by the due date listed on the notice.

Posted in Immigration Law

The Dramatic Increase in Employment-Based Green Card Availability Explained

Green Card
The past 10 months have seen significant forward movement in the backlog dates for Immigrant Visas (or Green Cards) as reported each month in the U.S. State Department’s Visa Bulletin. Since October of 2020, the EB-2 and EB-3 categories for China have advanced by 19 months and 16 months, respectively, and for India have advanced 14 months and almost 2 years, respectively.

The EB-1 category has been “Current” for both China and India since then as well. In addition, the EB-1, EB-2 and EB-3 categories have been “Current” for Mexico. This forward movement has resulted in the filing of tens of thousands of I-485 Adjustment of Status Applications by foreign nationals currently living and working in the U.S. in a nonimmigrant status who had previously been looking at multiple year waits to get to this stage in the Green Card process. While we are just now starting to see approvals of these I-485 applications, the large numbers of these cases have stressed operations at the USCIS and resulted in delays particularly in the issuance of Employment Authorization and Advance Parole documents. This article will explain the reason for this significant forward movement and provide some information about likely trends in the coming year.

As a bit of background, the United States issues a limited number of Green Cards each year. There are annual quotas both for the various types of Family-based Green Cards (480,000) and Employment-based Green Cards (140,000). In addition, there is a per country percentage limitation in each category tied to the fiscal year of the USCIS which ends on September 30th. Under these quota rules, unused Green Cards in the Family-based categories are added to the Employment-based categories and vice versa. Typically, a very large percentage of Family-based Green Cards are issued by U.S. Consulates abroad (through the Immigrant Visa application process) and a very large percentage of Employment-based Green Cards are issued by the USCIS in the United States (through the Adjustment of Status application process).

Beginning early in 2020 with the onset of the COVID-19 pandemic, U.S. Consulates around the world have either been shut down for periods of time or have been operating with limited staff. In addition, from April 23, 2020 to February 24, 2021, U.S. Consulates abroad were unable to issue Immigrant Visas in most categories due to a Trump-era Presidential Proclamation that was lifted by President Biden.

The impact of these two factors on the availability of Employment-based Green Cards was significant. 2020 and 2021 saw dramatic reductions in the issuance of Green Cards in the Family-based categories. As of February 2021, there were approximately 473,000 such cases backlogged at U.S. Consulates abroad. As a result of this significant backlog as well as the continuation of limited operations at most U.S. Consulates, the U.S. State Department (“DOS”) predicts that the issuance of Green Cards in the Family-based categories will continue to be slow through the end of the 2021 fiscal year and into 2022.

This reduction in the issuance of Green Cards in the Family-based categories has resulted in the allocation of unissued Green Cards to the Employment-based categories. In the current fiscal year (October 1, 2020 to September 30, 2021), the allocation of Green Cards in the Employment-based categories was increased by unused Green Cards in the Family-based categories from 140,000 to 262,000. It is this historic increase in available Employment-based Green Cards has driven the rapid advances in backlog dates.

According to the DOS, this trend will continue into 2022. The DOS projects that the allocation of Green Cards in the Employment-based categories will increase as a result of unused Family-based Green Cards, to 290,000 in fiscal year 2022 (October 1, 2021 to September 30, 2022) – this is more than double the regular annual allocation. While indications are that forward movement in the EB-2 and EB-3 categories for China and India will continue at a moderate pace through the end of the current fiscal year, the expectation is that there will again be rapid increases in these categories beginning in October of 2021. The Chief of the Visa Control and Reporting Division at the DOS, Charlie Oppenheim, provides a monthly livestream up-date on the movement of the visa backlog numbers on the DOS Consular Affairs YouTube channel several days after the Visa Bulletin is issued – we recommend that those interested in getting more information on this subject tune in and subscribe to this informative monthly presentation.

While all of this is good news for foreign nationals with pending Employment-based Green Card cases, the good news is tempered somewhat by the reality of processing such a large number of cases. Visa numbers that are not used by the end of a fiscal year do not automatically transfer over to the next fiscal year in the same visa category. This means that Green Card cases relying on the extra visa numbers must be approved by the end of the government’s fiscal year on September 30th. The USCIS is now allocating additional resources to process as many pending I-485 Adjustment of Status applications as possible before the end of the current fiscal year, but it is widely expected that all 262,000 available numbers will not likely be used this year. The good news is that the total number of available Green Cards in the Employment-based categories in the 2022 fiscal year will be even higher at 290,000.

Given the high volume of cases being filed as a result of the aggressive forward movement in the backlog dates, it is important that foreign nationals make sure to move their cases along as quickly and efficiently as possible. This includes making sure that I-485 applications are as complete as possible to reduce the risk of an RFE and then responding to RFEs as quickly as possible. Although caused by a tragic global pandemic, the availability of employment-based Green Cards is at an historic high and foreign nationals should keep a close watch on the movement of the backlog dates in the monthly Visa Bulletin and be prepared to file their I-485 Adjustment of Status applications as quickly as possible.

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Posted in Immigration Law

DHS Extends I-9 Flexibilities for Fully Remote Workers

remote workers

As offices nationwide closed in March 2020, the U.S. Department of Homeland Security (DHS) temporarily exempted fully remote employees from the employment eligibility verification physical inspection requirements for Form I-9 processing. At that time, DHS confirmed that employees working remotely due to COVID-19 would remain exempt from the requirements until the earlier of: 1) when the employee begins non-remote employment on a regular, consistent, or predictable basis; or 2) when DHS terminates I-9 flexibilities.

This DHS flexibility applies only to workers who were hired on or after March 20, 2020 and who are working exclusively in a remote setting due to COVID-19-related precautions. For new hires subject to these rules, employers are not required to review the employee’s identity and employment authorization documents in the employee’s presence and instead can inspect the document remotely and retain copies. Employers are required to maintain written documentation of this remote onboarding and verification, including annotating Section 2 of Form I-9 to indicate that documents were inspected remotely. Employers are later required to physically examine the documents in person and update Form I-9 accordingly once DHS terminates flexibilities or the presidential COVID-19 National Emergency declaration is terminated, whichever is earlier. If a worker begins regular, consistent, non-remote employment before either event occurs, the employer must complete the physical inspection at that time.

Since introducing this guidance in March 2020, DHS has provided near-monthly updates extending the flexibility for 30 days at a time. As of May 26, 2021, Immigration and Customs Enforcement (ICE) and DHS extended I-9 flexibility through August 31, 2021. Importantly, this guidance applies only to employers and workplaces operating remotely. Under DHS’ guidance, “If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.”

Once normal in-person operations resume for a business, all employees who onboarded with remote verification must complete in person verification within three business days. If your workforce has returned to the workplace already, you should take immediate action to ensure that all required physical inspection of documents is completed as soon as feasible.

I-9 document inspection can be carried out by the employer, or any authorized representative designated by the employer. If you have any questions about I-9 compliance, please reach out to your Parker Gallini attorney.

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Posted in Immigration Law

Immigration Quick Takes – July 2021

U.S. Immigration News

National Interest Exceptions Now Valid for 12 Months and Multiple US Entries

With COVID-19 travel restrictions still in place for a number of countries worldwide, many foreign nationals traveling to the U.S. from or through restricted countries require an exception from the restrictions authorized by the U.S. Department of State (DOS). Throughout the pandemic, DOS has accepted requests for National Interest Exceptions (NIEs) from the travel restrictions based on evolving criteria benefitting U.S. interests, such as support of critical U.S. infrastructure or direction of significant economic activity. Each consular post is responsible for processing NIEs within the post’s jurisdiction, and NIEs were valid for one U.S. entry within 30 days of approval. On July 6, 2021, DOS announced that all NIE waivers issued in the last 12 months are automatically extended for 12 months from the date of approval and are valid for multiple entries, as long as they are used for the same purpose for which they were granted. This 12-month period of validity will also apply to all newly issued NIE waivers. This is a significant benefit to anyone who has already been issued an NIE waiver. In addition, it should reduce the number of NIE waiver requests at consular posts thus hopefully reducing wait times for new waivers.

DHS has Relaunched the International Entrepreneur Rule

Earlier this year, the U.S. Department of Homeland Security (DHS) relaunched the International Entrepreneur Rule (IER), allowing DHS to exercise discretionary authority to grant temporary entry for up to 30 months to foreign national entrepreneurs who provide “significant public benefit” to the U.S. through their work with a recently-formed start-up. Significant public benefit can be demonstrated through significant capital investment (over $250,000) from established U.S. investors; receipt of at least $100,000 of federal, state, or local government funding; or a combination of partial funding and compelling evidence of the potential for growth, such as the entrepreneur having a strong record of start-up success, acceptance into a reputable accelerator, or proof that the start-up has produced cutting-edge research and/or created new technologies. To qualify, an entrepreneur must own at least 10% in a start-up created in the last five years that has already done some business and must maintain at least a 5% interest over time. Additionally, an entrepreneur must play an active and role in the start-up’s operations.

IER parole is available to an entrepreneur and their dependent family members for a total of 60 months – 30 months initial admission, with one opportunity to be “re-paroled” – provided that the entrepreneur can demonstrate that the start-up has received at least $500,000 of additional funding; has generated $500,000 revenue at a 20% annual growth rate; has created at least 5 qualifying jobs; or can demonstrate comparable compelling evidence of the start-up’s continued potential for rapid growth and job creation. Only 3 entrepreneurs per start-up may receive IER parole.

IER parole is discretionary, so it can be denied or revoked by DHS based on derogatory evidence such as criminal conduct, fraud, or national security concerns. A parolee must maintain a household income of at least 400% above the current poverty level while in the U.S., which is currently about $70,000 for a two-person household. IER parole alone does not provide a green card pathway, and an entrepreneur must successfully apply for admission in another classification to remain in the U.S. after the IER parole expires.

If you believe you may qualify for IER parole and are interested in applying, please contact your Parker Gallini attorney.

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Posted in Immigration Law

USCIS Issues Policy Updates to Improve Immigration Processes

The Biden Administration has committed to reviewing current immigration regulations and policies to identify ways to improve the United States’ immigration system. Recent policy changes include broader criteria for expedited processing, more generous RFE practices, and extended work and travel authorization for green card applicants.

USCIS building

On June 9, 2021, USCIS made three significant announcements for policy changes that improve immigration services for benefit requestors.

1. USCIS Clarified and Expanded Access to Expedited Processing

USCIS considers requests for expedited processing on a case-by-case basis and has sole discretion to grant expedited processing. In recent years, USCIS has rarely granted these requests. Last week’s update to the USCIS Policy Manual provides detailed explanations of the criteria USCIS considers when expediting a benefit request, including explaining USCIS’ process for considering these requests.

The most common basis for expedite requests is severe financial loss for a company or a person. USCIS’ new guidance explains circumstances that can demonstrate severe financial loss to warrant expedited processing such as:

  • A business is at risk of failing
  • A business will lose a critical contract
  • A business will be required to lay off other employees
  • A person’s job loss will cause severe financial hardship in their individual circumstances
  • A person will lose critical benefits

USCIS confirmed that they do not generally honor expedited requests where premium processing is available, and they also will not grant expedited processing where the need for urgent action results from applicant or petitioner failure to timely file or respond to USCIS requests.

The new guidance also allows qualifying nonprofit and cultural organizations to request expedited processing where there is benefit to interests of the United States.

2. Requests for Evidence and Notices of Intent to Deny

USCIS is returning to longstanding adjudicatory practices in place from June 2013 to July 2018, which direct USCIS officers to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOID) where additional evidence could demonstrate eligibility for a requested immigration benefit.

This action included rescinding a July 2018 policy memorandum that expanded USCIS officers’ discretion to deny applications and petitions without first issuing an RFE or NOID in cases that are filed without required initial evidence. With this return to prior position, USCIS will now give benefit requestors an opportunity to correct mistakes and unintentional omissions through RFE and NOID responses.

3. Employment Authorization Documents

USCIS will begin issuing 2-year initial and renewal EADs for certain adjustment of status applicants. Increasing the validity period of these EADs from 1 year to 2 years will reduce the number of EAD applications USCIS receives, freeing up agency resources and hopefully reducing the time it now takes the USCIS to process EAD applications.

Contact your Parker Gallini attorney with any questions about the status of USCIS policy changes and any impact to your case.

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Expanded Eligibility for a National Interest Exception (“NIE”) Waiver

The U.S. State Department has expanded eligibility for National Interest Exceptions to regional and country-specific COVID-19 Travel Bans

On May 27th, the U.S. State Department announced an expansion in eligibility for National Interest Exception waivers to the various regional and country-specific COVID-19 Travel Bans. Over the past year in response to the COVID-19 pandemic, the U.S. has imposed a ban on anyone traveling to the U.S. from the China, Brazil, India, Iran, the so-called Schengen countries (the countries of western Europe) and South Africa. These Travel Bans all contain a number of exceptions including for foreign nationals whose travel is in the national interest of the United States. The categories of who may apply for a National Interest Exception (“NIE”) waiver to these Travel Bans has changed over time. Since April of 2021, the State Department has allowed applications for NIEs for foreign nationals whose travel involves the provision of “vital support for a critical infrastructure” sector in the United States. However, the State Department appears to have taken a very restrictive stance on these applications. Under the April 2021 criteria, fewer NIEs were approved than were under earlier criteria based solely on economic benefit to the U.S.

The latest announcement on May 27th makes important changes to eligibility for an NIE waiver, again allowing for NIEs based on economic impact. While the category of providing “vital support for critical infrastructure” remains, a sub-category has been added for foreign nationals providing “executive direction for critical infrastructure.” In addition, the State Department has added a category for foreign nationals that provide “vital support or executive direction for significant economic activity in the United States.” This new standard will make it easier for executive-level employees to obtain an NIE waiver across industries. In addition, the reference to “significant economic activity” broadens the scope of eligibility for the waiver more generally.

We will up-date the Parker Gallini LLP web site with any changes or developments with respect to NIE waivers.

 

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Posted in Immigration Law

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