Immigration News

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.

USCIS IMPLEMENTS EMPLOYMENT AUTHORIZATION FOR INDIVIDUALS COVERED BY DEFERRED ENFORCED DEPARTURE FOR HONG KONG RESIDENTS

Date: 10/20/2021

U.S. Citizenship and Immigration Services (USCIS) today issued a Federal Register notice with information on how to apply for employment authorization for eligible Hong Kong residents covered under the president’s Deferred Enforced Departure (DED).
DED is an administrative stay of removal ordered by the president under his constitutional powers to conduct foreign relations. On August 5 President Biden issued a memorandum directing the secretaries of state and homeland security to take appropriate measures to defer the removal for 18 months of certain Hong Kong residents who are present in the United States and who have continuously resided here since August 5, 2021. This DED is valid for 18 months, through February 5, 2023.
For purposes of this DED policy, Hong Kong residents are individuals of any nationality, or without nationality, who have met the requirements and been issued a Hong Kong Special Administrative Region (HKSAR) passport, a British National Overseas passport, a British Overseas Citizen passport, a Hong Kong Permanent Identity Card, or an HKSAR Document of Identity for Visa Purposes.
There is no application for DED. Eligibility requirements for Hong Kong residents who are covered under DED are based on the terms described in the president’s directive and any relevant implementing requirements established by the Department of Homeland Security.
Eligible Hong Kong residents may apply for an Employment Authorization Document by submitting a completed Form I-765, Application for Employment Authorization. Eligible Hong Kong residents covered by the president’s DED memorandum may also receive travel authorization. Individuals must file Form I-131, Application for Travel Document, for advance parole if they wish to travel based on DED.

Diversity Visa (a.k.a. Green Card) Lottery Registration Opens

Date: 10/05/2021

On October 6, 2021, at 12om (EST), the registration Diversity Visa (a.k.a. Green Card) Lottery will open.  The registration will be available until November 9, 2021 at 12pm. It is important to note that submission of more than one entry will render you ineligible for a DV.

The Department of State annually administers the statutorily created Diversity Immigrant Visa Program. Section 203(c) of the Immigration and Nationality Act provides for a class of immigrants known as "diversity immigrants" from countries with historically low rates of immigration to the United States. For Fiscal Year 2023, up to 55,000 Diversity Visas (DVs) will be available. There is no cost to register for the DV program.

Applicants who are selected in the program (selectees) must meet simple but strict eligibility requirements to qualify for a DV. The Department of State determines selectees through a randomized computer drawing. The Department of State distributes diversity visas among six geographic regions, and no single country may receive more than seven percent of the available DVs in any one year.

For DV-2023, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, Venezuela, and Vietnam.

Natives of Macau SAR and Taiwan are eligible.

For more information please visit https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-...

Children born through ART are considered to have been born in 'wedlock'

Date: 08/09/2021

On August 5, 2021, U.S. Citizenship and Immigration Services announced an updated policy guidance affecting children born outside of the United States and the determination of whether children born through assisted reproductive technology (ART) are considered to have been born “in wedlock.” This policy update will allow a non-genetic, non-gestational legal parent of a child to transmit U.S. citizenship to the child if the parent is married to the child’s genetic or gestational parent at the time of the child’s birth, and the relevant jurisdiction recognizes both parents as the child’s legal parents.
“USCIS is taking a crucial step towards ensuring fair access and support for all families and their loved ones,” said USCIS Director Ur M. Jaddou. “We are committed to removing unnecessary barriers promoting policies for all people as they embark on their journey to citizenship and beyond.”
This guidance will also be applied to the family-based petitions for determining whether a child is born in wedlock. Previously, USCIS required that the child’s genetic parents (or the legal gestational parent and one of the genetic parents) be married to one another for a child to be considered born in wedlock.
In 2014, USCIS updated its policy to allow a parent who is the gestational and legal parent of a child under the law of the relevant jurisdiction at the time of the child’s birth to transmit U.S. citizenship to the child if all other citizenship requirements are met.

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