U.S. Immigration Alerts

U.S. Immigration Updates-Week of January 2,2022

USCIS Extends Flexibilities for Responding to Certain Agency Requests

U.S. Citizenship and Immigration Services (USCIS) is extending the flexibilities it originally announced on March 30, 2020, to assist applicants, petitioners, and requestors who are responding to certain requests.

The flexibilities apply if the issuance date listed on the request, notice, or decision is between March 1, 2020, and March 26, 2022, inclusive. USCIS said it will consider a response to such requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action.

The flexibilities cover responses to Requests for Evidence; Continuations to Request Evidence (N-14); Notices of Intent to Deny, Revoke, or Rescind; Notices of Intent to Terminate regional centers; and Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant. In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), if the form was filed up to 90 calendar days from issuance of a decision USCIS made, and the agency made that decision between November 1, 2021, and March 26, 2022, inclusive.

Source: AILA Newsletter, January 2, 2022

• USCIS alert, Dec. 30, 2021, https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-0

Department of State (DOS) Proposes Raising Consular Service Fees for Nonimmigrant and Special Visas

DOS has proposed raising fees for consular services for several nonimmigrant visa (NIV) application processing fees, the Border Crossing Card (BCC) for Mexican citizens age 15 and over, and the waiver of the two-year residency requirement fee for certain J exchange visitors. Specifically, the Department proposes:

• To increase the non-petition-based NIV fee from $160 to $245 per application. Non-petition-based NIVs include a variety of nonimmigrant visas, such as those for business and tourist travel (B1/B2); students and exchange visitors (F, M, and J); crew and transit visas (C and D); representatives of foreign media (I), and other country-specific visa classes, as well as BCCs for applicants age 15 or older who are citizens of and resident in Mexico.
• To increase fees for all petition-based NIVs related to employment in the United States from $190 to $310. Petition-based NIVs include categories for temporary workers and trainees (H); intracompany transferees (L); aliens of extraordinary ability (O); athletes, artists, and entertainers (P); international cultural exchange participants (Q); and religious workers (R).

• To increase the E category NIV fee from $205 to $485.
• To increase the J waiver fee from $120 to $510.

DOS will accept comments on the proposed rule until February 28, 2022.

Source: AILA Newsletter, January 2, 2022

• Proposed rule, Dept. of State, 86 Fed. Reg. 74018 (Dec. 29, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-29/pdf/2021-28010.pdf

Restrictions on Travelers From Southern African Countries Lifted

Temporary travel restrictions the Biden administration imposed in November on foreign travelers from South Africa and seven other countries in the region, due to the spread of the Omicron variant of COVID-19, were lifted on December 31, 2021, following recommendations from the Centers for Disease Control and Prevention. In addition to South Africa, the other countries include Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe. A related Presidential Proclamation noted, among other things, that “scientific experts have determined that people who are vaccinated against COVID-19 are protected against severe disease and hospitalization from the Omicron variant. Moreover, the Omicron variant has now spread to more than 100 countries, and it is prevalent in the United States.”

People traveling from South Africa and the other seven countries will now need to meet the same requirements as other foreign travelers to the United States: be fully vaccinated and obtain a negative COVID-19 test within a day before their departure to the United States. All travelers, including U.S. citizens, lawful permanent residents, and foreign nationals, must show to the airline documentation of a negative viral test result taken within one day of the flight’s departure before boarding. The CDC recently shortened the testing time period from within three days before travel to within one day.

The Department of State (DOS) noted that the rescission of the travel ban does not necessarily mean that a local U.S. embassy or consulate can immediately schedule all affected applicants for visa interviews. DOS recommended that travelers check the embassy or consulate website for information on what services they are offering and instructions on how to apply for a visa.

Source: AILA Newsletter, January 2, 2022

• “A Proclamation on Revoking Proclamation 10315,” White House Briefing Room, Dec. 28, 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/28/a-proclamation-on-revoking-proclamation-10315/
• “Rescission of Travel Restrictions on Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe,” Dept. of State, Dec. 28, 2021, https://bit.ly/3FLNsVL

USCIS States That Certain Healthcare Workers Can Request Expedited Work Permits

U.S. Citizenship and Immigration Services (USCIS) announced that qualified healthcare workers who have pending employment authorization document (EAD) renewal applications and EADs that will expire in 30 days or less, or that have already expired, can request expedited processing of the EAD application. Workers should check the related DHS advisory memorandum to determine whether they qualify. Workers requesting expedited processing of their EADs must provide evidence of their profession or current employment as healthcare workers. To request expedited processing, workers should call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833).

Source: AILA Newsletter, January 2, 2022

• “How to Make an Expedite Request” (see “Alert: If you are a healthcare worker”), USCIS, https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request
• “Advisory Memorandum on Ensuring Essential Critical Infrastructure Workers’ Ability to Work During the COVID-19 Response,” Dept. of Homeland Security, https://www.cisa.gov/sites/default/files/publications/essential_critical_infrastructure_workforce-guidance_v4.1_508.pdf

Department of State (DOS) Extends Measure Allowing Return Travel to the U.S. on Expired U.S. Passports

U.S. citizens currently abroad whose passports expired on or after January 1, 2020, may be able to use their expired U.S. passport for return travel to the United States until March 31, 2022. U.S. citizens can confirm their eligibility for traveling on an expired passport at https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html.

Recently expired U.S. passports cannot be used to travel from the United States to an international destination or to travel to a foreign country for any length of stay longer than an airport connection en route to the United States or to a United States territory.

DOS reminds U.S. citizens that, as of December 6, 2021, all air travelers, regardless of vaccination status, must show proof of a negative COVID-19 test result, taken no more than 24 hours of their flight’s departure to the United States.

Source: Department of State, Office of the Spokesperson, December 28, 2021: Extension of Temporary Measure Allowing Return Travel to the United States on Expired U.S. Passport – United States Department of State

Department of State (DOS) Expands Waivers of In-Person Interviews for Certain Temporary Nonimmigrant Visa Applicants

The Secretary of State, in consultation with the Department of Homeland Security (DHS), has authorized consular officers to waive the in-person interview requirement for certain temporary employment nonimmigrant visa applicants who have a petition approved by U.S. Citizenship and Immigration Services (USCIS).

The new authorization applies to temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas who meet certain conditions, including that they are applying for a visa in their country of nationality or residence, the DOS said. In addition, the Secretary extended previously approved policies to waive the visa interview for certain students, professors, research scholars, short-term scholars, and specialists (F, M, and academic J visa applicants) through the end of 2022.

Additionally, the Secretary of State has extended consular officers’ ability to waive the in-person interview through December 31, 2022, for the following other categories of nonimmigrant visas: temporary agricultural and non-agricultural workers (H-2 visas), students (F and M visas), and student exchange visitors (academic J visas).

One change to the previous policy, DOS noted, is that applicants eligible for the waiver authority because they are citizens or nationals of a Visa Waiver Program (VWP) participating country must have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization to qualify.

DOS said it encourages applicants to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview. Embassies and consulates may still require an in-person interview on a case-by-case basis and depending on local conditions, the agency noted.

Source: AILA Newsletter, December 26, 2021

• “Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas,” Dept. of State, Dec. 23, 2021, https://bit.ly/3HbODOx
• “Expanded Interview Waivers for Certain Nonimmigrant Visa Applicants,” Dept. of State, Media Note, Dec. 23, 2021, https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/
• “Limited Operations at U.S. Consulates Keep Visa Holders on Edge,” Roll Call, Dec. 22, 2021, https://www.rollcall.com/2021/12/22/limited-operations-at-us-consulates-keep-visa-holders-on-edge/

DHS Withdraws H-1B Selection Final Rule

The Department of Homeland Security (DHS) published a final rule on December 22, 2021, that withdraws the “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions” final rule, also known as the H-1B Selection Final Rule, issued January 8, 2021. That rule was vacated by the U.S. District Court for the Northern District of California.

On September 15, 2021, the court in Chamber of Commerce of the United States of America et al. v. United States Department of Homeland Security, et al., No. 4:20–cv–07331 (N.D. Cal. March 19, 2021) vacated the H-1B Selection Final Rule. The rule would have changed the way USCIS selects H-1B registrations (or petitions, if registration is suspended) submitted by prospective petitioners seeking to file an H-1B cap-subject petition by ranking and selecting registrations based generally on corresponding wage levels.

DHS’s action follows a similar final rule from the Department of Labor, effective December 13, 2021.

Source: AILA Newsletter, December 26, 2021

• DHS alert, Dec. 21, 2021, https://www.uscis.gov/newsroom/alerts/dhs-withdraws-h-1b-selection-final-rule
• “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions,” 86 Fed. Reg. 72516 (Dec. 22, 2021), https://www.govinfo.gov/content/pkg/FR-2021-12-22/pdf/2021-27714.pdf
• “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur,” 86 Fed. Reg. 70729 (Dec. 13, 2021), https://bit.ly/3yg4s3k

Backlogs in DOJ’s Immigration Court System Surpasses 1.5 Million Cases

The backlog of cases pending in the U.S. Department of Justice’s (DOJ) immigration court system continues to break records, topping 1.5 million cases for the first time ever last month, a Syracuse University research organization reported Monday.

Data published by Syracuse University’s Transactional Records Access Clearinghouse shows the backlog at the court system run by the DOJ’s Executive Office for Immigration Review grew by more than 70,000 cases in November, reaching a new all-time high of nearly 1,560,000.

The backlog has increased nearly tenfold over the past two decades, according to data published by the organization, which uses government records to compile its numbers.

The Biden administration has taken some steps toward chipping away at the immense backlog, including issuing a proposed rule in August that would authorize asylum officers to approve or deny asylum applications for migrants in expedited removal proceedings. Those claims are currently handled by the overwhelmed immigration courts.

Additionally, the Executive Office for Immigration Review announced last week that it had hired 22 new immigration judges and is seeking to hire more. The immigration court system also added 24 new judges in October.

Source: Mike LaSusa, Law 360, December 21, 2021: Immigration Court Data Shows Backlog Tops 1.5M Cases – Law360