Immigration News

USCIS Reviewing Military Naturalization Policy Based on Settlement Agreement in Calixto v. Department of the Army

Date: 09/23/2022

On Sept. 22, 2022, USCIS was notified of a settlement agreement between the U.S. Army and class members of the civil action captioned Calixto v. Department of the Army, Civ. A. No. 18-1551 (PLF) (D.D.C.). The Calixto settlement agreement affects USCIS’ military naturalization policies, and USCIS is reviewing policy changes based on the terms of this settlement agreement. It will soon provide guidance and instructions for Calixto class members who may be eligible to apply for military naturalization under section 329 of the Immigration and Nationality Act.

DHS Announces Re-Registration Process for Current Venezuela Temporary Protected Status Beneficiaries

Date: 09/07/2022

The Department of Homeland Security (DHS) posted for public inspection a Federal Register notice describing how beneficiaries under Venezuela’s existing TPS designation can re-register to retain TPS and renew their Employment Authorization Documents (EADs). Secretary of Homeland Security Alejandro N. Mayorkas previously announced the 18-month extension of the designation of Venezuela for TPS.

Only beneficiaries of the initial designation of Venezuela for TPS who were already residing in the United States in March 2021 are eligible to re-register for TPS and apply to renew their EADs, if they otherwise continue to meet eligibility requirements. Individuals re-registering must do so during the 60-day re-registration period from Sept. 8, 2022 to Nov. 7, 2022. Venezuelans who arrived in the United States after March 8, 2021, are not eligible for TPS.

Given the time frames involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants may receive new EADs before their current EADs expire on Sept. 9, 2022. The Federal Register notice automatically extends the validity of EADs previously issued under the TPS designation of Venezuela through Sept. 9, 2023.

Approximately 323,000 individuals were estimated to be eligible for TPS under the initial designation of Venezuela. There are currently approximately 111,700 beneficiaries under Venezuela’s TPS designation.

USCIS will continue to process pending applications filed under Venezuela’s initial TPS designation. Individuals with a pending Form I-821, Application for Temporary Protected Status, or a related Form I-765, Application for Employment Authorization, do not need to file either application again. If USCIS approves a Form I-821 or Form I-765 filed under the initial designation of TPS for Venezuela, USCIS will grant the individual TPS through March 10, 2024, and issue a new EAD valid through March 10, 2024.

Venezuelans (and individuals without nationality who last habitually resided in Venezuela) who are currently eligible for TPS under the existing designation but have not yet applied should file their applications before the Sept. 9, 2022, initial application deadline. Those who do not currently reside in the United States or who arrived in the United States after March 8, 2021, are not eligible for TPS.

USCIS Extends & Expands Employment Authorization for Individuals Covered by DED for Liberia

Date: 09/02/2022

U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).

On June 27, President Biden issued a memorandum extending and expanding DED for Liberians for 24 months. Eligible Liberian nationals covered under DED as of June 30, 2022, may remain in the United States through June 30, 2024. The president’s memorandum also defers the removal of any Liberian national, or individual without nationality who last habitually resided in Liberia, who has been continuously physically present in the United States since May 20, 2017, and who meets DED eligibility criteria.

The memorandum also extends employment authorization for individuals covered under DED Liberia through June 30, 2024. USCIS is automatically extending the validity of Liberian DED-related EADs through June 30, 2024, for those who already have an EAD with a Category Code of A-11 and a Card Expires date of March 30, 2020; Jan. 10, 2021; or June 30, 2022. These EADs remain valid, even though their facial expiration date has passed.

There is no application for DED. Liberians covered under DED are authorized to work in the United States. Eligible Liberians covered by the memorandum may apply for an EAD by filing Form I-765, Application for Employment Authorization. DHS may provide travel authorization at its discretion to those covered under Liberian DED. Individuals who wish to travel outside of the United States may file Form I-131, Application for Travel Document.

DESIGNATION OF AFGHANISTAN FOR TPS

Date: 05/19/2022

On May 19, 2022, the Department of Homeland Security posted for public inspection a Federal Register notice (FRN) designating Afghanistan for Temporary Protected Status (TPS) for 18 months from May 20, 2022, through Nov. 20, 2023.

This designation allows Afghan nationals (and individuals having no nationality who last habitually resided in Afghanistan) who have continuously resided in the United States since March 15, 2022, to file initial applications for TPS. The FRN provides instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

Afghanistan’s 18-month TPS designation will go into effect on May 20, 2022, and individuals must also prove their continuous physical presence in the United States since the designation date. The FRN explains the procedures necessary for an individual to submit an initial registration application under the designation and to apply for an EAD.

The EB-5 Reform and Integrity Act of 2022 No Longer Allows "Pooled Direct" EB-5 Projects

Date: 05/05/2022

During the recent eight-month sunset of the Regional Center program (June 30, 2021, to March 15, 2022) which prohibited any new RC-based I-526 Petitions, some business promoters heavily marketed “Pooled Direct” investments as a currently available alternative EB-5 opportunity that could be filed with USCIS for $500,000. They would subscribe many EB-5 investors to a single New Commercial Enterprise and aggregate their capital to fund a new business venture, much like RC-based arrangements. Here, however, each Pooled Investor is required to create 10 direct full-time, permanent W-2 employees. Filing I-526 Petitions using direct jobs was not prohibited during the lapse.

Congress included pretty clear language in the RIA prohibiting the future use of “Pooled Direct” investment structures. Then, USCIS made the prohibition explicit on April 29, 2022, by posting an EB-5 Questions and Answers that states:

7. How is USCIS treating pooled standalone cases?
Pooled standalone cases are not allowed under the EB-5 Reform and Integrity Act of 2022; therefore, USCIS will reject any petition based on a pooled, non-regional center investment filed on or after March 15, 2022. USCIS will adjudicate pooled standalone cases filed before March 15, 2022 based on eligibility requirements at the time such petitions were filed.
In simplest terms, cases previously filed relying on this structure are grandfathered, but no new such cases may be submitted after the enactment date.

TPS FOR CAMEROON

Date: 04/15/2022

The Department of Homeland Security (DHS) announced today the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS. This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022, will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

USCIS IS EXPANDING PREMIUM PROCESSING

Date: 03/29/2022

Today the Department of Homeland Security (DHS) announced a final rule that aligns premium processing regulations with the Emergency Stopgap USCIS Stabilization Act. The rule codifies premium processing fees and adjudication timeframes provided by Congress.
Premium processing is an expedited adjudication service now available only to petitioners filing a Form I-129, Petition for a Nonimmigrant Worker, and to certain employment-based immigrant visa petitioners filing a Form I-140, Immigrant Petition for Alien Workers. This final rule expands the categories of forms ultimately eligible for premium processing services, including Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; and additional classifications under Form I-140.
USCIS intends to begin implementing, through a phased approach, premium processing availability of Form I-539, Form I-765 and Form I-140 in fiscal year 2022. USCIS will also adhere to the congressional requirement that the expansion of premium processing must not cause an increase in processing times for regular immigration benefit requests.
USCIS plans to begin this phased implementation process by expanding premium processing eligibility to Form I-140 filers requesting EB-1 immigrant classification as a multinational executive or manager, or EB-2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver.

IMMIGRATION RELIEF FOR UKRAINIANS

Date: 03/07/2022

The Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022, will not be eligible for TPS.

The TPS designation will be valid for 18 months and will entitle applicants to apply for Employment Authorization. In addition, the following measures may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. If you fail to apply for the extension or change before expiration of your authorized period of admission, we may excuse that if the delay was due to extraordinary circumstances beyond your control;
  • Reparole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of petitions or applications, including employment authorization applications, when appropriate;
  • Consideration of fee waiver requests due to an inability to pay;
  • Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Flexibility if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Document, or Form I-94, Arrival/Departure Record; and
  • Rescheduling a biometric services appointment.

 

December’s Visa Bulletin is Current for Chinese Nationals who filed a direct investment EB-5 petition

Date: 11/17/2021

The US Department of State published the December 2021 Visa Bulletin revealing some significant announcements. The non-regional center program will be current for all countries, Mainland China included. The EB-5 cut-off dates for Regional Center visa applicants is unchanged due to the lapse of the Regional Center Program.
This is the first time since the Spring of 2015, there will be no backlog in the EB-5 investor category for people born in Mainland China.”
No more backlog for direct EB-5 investors from Mainland China
Historically more than 90% of the EB-5 applications were filed by investors, who were born in Mainland China, through the Regional Center program. As a result of Congress allowing the Regional Center program to expire last June the number of available Green Cards for investors who filed an EB-5 petition through direct-investment has soared.
It is expected that a large number of investors, who have an approved I-526, Immigrant petition by Alien Entrepreneur, will file Form I-485, Adjustment of Status or complete Consular processing to secure an immigrant visa (a.k.a. Green Card) before the end of December.

USCIS to Ease Work Authorization Process for Certain L-2 and H-4 Spouses

Date: 11/12/2021

U.S. Citizenship and Immigration Services (USCIS) has agreed to change its policies concerning H-4 and L-2 employment authorization document (EAD) applications, according to a settlement agreement in a lawsuit that challenged the lengthy processing delays of H-4 and L-2 EAD applications. Today, the parties came to a settlement in which USCIS agrees that:

Certain H-4 nonimmigrants with EAD renewal applications will be eligible for an automatic extension of their work authorization; and
Certain L-2 spouses will benefit from automatic work authorization incident to their L-2 status without the need for an EAD, with some limitations. Auto-extension may also apply to L-2 EAD renewals.
The case is Shergill et al, v Mayorkas (21-cv-1296-RSM).

Detailed USCIS guidance is forthcoming and is expected to clarify how USCIS will implement the new policies and address Form I-9 employment eligibility verification for affected foreign nationals. While the agreement does not address EADs for the spouses of other employment-based nonimmigrants, there is separate litigation pending in federal court that challenges delays for E spousal EADs and for adjustment of status-based EAD applications.

How does the settlement affect H-4 visa holders?

Under prevailing law and policy, L-2 nonimmigrants have been eligible to apply for EADs immediately upon being accorded L-2 status, but could not begin work until the EAD was approved. In the Shergill settlement, USCIS has agreed to change its interpretation of current regulations by permitting L-2 nonimmigrants to work lawfully without the need for an EAD, with some limitations.

The agency has agreed that L-2 nonimmigrants should be deemed to be work-authorized incident to their status, which can be established by a valid I-94 specifying that the L-2 is the spouse of an L-1 nonimmigrant. This I-94 would be used as a List C document for Form I-9 purposes as long as it identifies the bearer as an L-2 spouse. The Department of Homeland Security does not currently issue L-2 I-94s indicating that the holder is a spouse (as opposed to a child) of an L-1, but will begin to do so as a result of the Shergill settlement. L-2 spouses who hold an I-94 that does not indicate their spousal status may continue to need an EAD in order to work, until they receive an I-94 with a spouse annotation (such as through an approved extension or a new I-94 issued after reentry to the United States).

The agreement also provides auto-extension policies for L-2s who still need to renew an EAD. The L-2 auto-extension policies mirror the H-4 policies in that the applicant must have filed a timely L-2 EAD renewal application and continue to have L-2 status beyond their current EAD expiration in order to qualify. The auto-extension duration is also the same as for the H-4 version.

How does the settlement affect L-2 visa holders?

Under prevailing law and policy, L-2 nonimmigrants have been eligible to apply for EADs immediately upon being accorded L-2 status, but could not begin work until the EAD was approved. In the Shergill settlement, USCIS has agreed to change its interpretation of current regulations by permitting L-2 nonimmigrants to work lawfully without the need for an EAD, with some limitations.

The agency has agreed that L-2 nonimmigrants should be deemed to be work-authorized incident to their status, which can be established by a valid I-94 specifying that the L-2 is the spouse of an L-1 nonimmigrant. This I-94 would be used as a List C document for Form I-9 purposes as long as it identifies the bearer as an L-2 spouse. The Department of Homeland Security does not currently issue L-2 I-94s indicating that the holder is a spouse (as opposed to a child) of an L-1, but will begin to do so as a result of the Shergill settlement. L-2 spouses who hold an I-94 that does not indicate their spousal status may continue to need an EAD in order to work, until they receive an I-94 with a spouse annotation (such as through an approved extension or a new I-94 issued after reentry to the United States).

The agreement also provides auto-extension policies for L-2s who still need to renew an EAD. The L-2 auto-extension policies mirror the H-4 policies in that the applicant must have filed a timely L-2 EAD renewal application and continue to have L-2 status beyond their current EAD expiration in order to qualify. The auto-extension duration is also the same as for the H-4 version.

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