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

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