Immigration Quick Takes – December 2021

USCIS Releases Employment-Based Adjustment of Status Adjudication Statistics for Fiscal Year 2021

USCIS buildingIn FY 2021 (fiscal year ended September 30, 2021), USCIS confirmed the availability of 237,000 employment-based immigrant visas, comprising the standard 115,000 immigrant visas authorized annually plus an additional 122,000 unused FY 2020 family-based immigrant visas that rolled over following consular closures during the first year of the COVID-19 pandemic. Of these available immigrant visas, USCIS processed and approved over 172,000. While this is an increase of approximately 50% over USCIS’ typical adjudications, over 60,000 immigrant visas available for FY 2021 were unused because USCIS was not able to process tens of thousands of Adjustment of Status applications before the end of the year. These unused visas do not roll over into the next fiscal year.

To date in FY 2022, there has been little forward movement in backlogged preference categories.  We believe that this is in part because the USCIS is adjudicating applications filed in FY 2021 using the FY 2022 immigrant visa numbers.  Notwithstanding the lack of forward movement in the Final Action Dates as reported each month in the Visa Bulletin, USCIS has continued to accept Adjustment of Status applications based on the “Dates for Filing” chart, including in January of 2022.  These dates are somewhat more advanced than the actual Final Action Dates and at least give foreign nationals the opportunity to get the benefits of a filed Adjustment of Status application, including EADs and Advance Parole, even though that the Adjustment of Status application may not be adjudicated for some time.

Current Status of Regional Travel Bans and Visa Issuance

As of November 8, 2021, the Biden Administration lifted all regional travel restrictions and authorized the Centers for Disease Control and Prevention (CDC) to implement rigorous testing and vaccination requirements for all non-immigrant, not-citizens seeking entry to the United States via air travel. 

With the rise of the Omicron variant of COVID-19, on November 26, 2021, President Biden issued an updated Proclamation restricting travel from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe . Currently, this is the only nation-based restriction in place, and the CDC’s testing and vaccination requirements remain in place for all other non-immigrant, non-citizen air travelers regardless of origin. With the increases in the U.S. of both COVID-19 infections and deaths, travel restrictions may be returning and as a result, foreign travelers should continue to monitor CDC and White House guidance for updates on these restrictions. 

USCIS Temporarily Waives “60 Day Rule” for Medical Examination Form 

USCIS normally requires that a civil surgeon’s signature on Form I-693, Report of Medical Examination and Vaccination Record be dated no more than 60 days before filing an application for immigration benefits, including Adjustment of Status. On December 9, 2021, USCIS announced that they are suspending this requirement temporarily as an accommodation for COVID-19 related delays. This temporary waiver is in effect until September 30, 2022.  This waiver does not change the limited 2-year validity of the exam. 

Also note that since October 1, 2021, applicants subject to the medical examination who are medically eligible for vaccination must be fully vaccinated against COVID-19 and must provide proof of vaccination to the examining civil surgeon before Form I-693 can be signed.  

DHS Extends I-9 Flexibility

On December 15, 2021, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 compliance flexibility until April 30, 2022. Until that time, the physical presence requirements associated with Form I-9 are waived for employers and workplaces that are operating remotely, allowing for the virtual inspection of documents. ICE’s initial guidance is available here for employers’ reference. 

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