Immigration News

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.

USCIS Conducts Second Random Selection from Previously Submitted FY 2022 H-1B Cap Registrations

Date: 07/29/2021

In March 2021, USCIS conducted an initial random selection on properly submitted electronic registrations for the fiscal year (FY) 2022 H-1B cap, including for beneficiaries eligible for the advanced degree exemption. Per regulation, USCIS uses historical data related to approvals, denials, revocations, and other relevant factors to calculate the number of registrations needed to meet the H-1B cap for a given fiscal year. Only those petitioners with selected registrations for FY 2022 are eligible to file H-1B cap-subject petitions. The initial filing period for those with selected registrations for FY 2022 was from April 1, 2021, through June 30, 2021.
USCIS recently determined that it needed to select additional registrations to reach the FY 2022 numerical allocations. On July 28, USCIS selected previously submitted electronic registrations using a random selection process. The petition filing period based on registrations selected on July 28 will begin on Aug. 2 and close on Nov. 3. Individuals with selected registrations will have their myUSCIS accounts updated to include a selection notice, which includes details of when and where to file.
An H-1B cap-subject petition must be properly filed at the correct service center and within the filing period indicated on the relevant registration selection notice. Online filing is not available for H-1B petitions. Petitioners filing H-1B petitions must do so by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
Registration selection only indicates that petitioners are eligible to file H-1B cap-subject petitions; it does not indicate that the petition will be approved. Petitioners filing H-1B cap-subject petitions, including those petitions eligible for the advanced degree exemption, must still submit evidence and establish eligibility for petition approval based on existing statutory and regulatory requirements.

BREAKING NEWS: Applicants for Change of Status to F-1 Student No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’

Date: 07/20/2021

U.S. Citizenship and Immigration Services today announced new policy guidance that eliminates the need for individuals who have applied for a change of status (COS) to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 COS application is pending.
Under the previous policy, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file extensions, or an initial COS and subsequent extensions ensuring that they would not have a “gap” in status.
To prevent a “gap” in status, USCIS will grant the change of status to F-1 effective the day we approve an applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status. If we approve an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time. An example of a violation would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.
The new policy will reduce workloads and costs for both the applicants and USCIS. USCIS is in the process of revising the Form I-539 instructions to reflect these changes.

Extension and Re-Designation of Yemen for TPS

Date: 07/07/2021

On July 6, 2021, the Department of Homeland Security announced the extension and re-designation for Yemen for Temporary Protected Status (TPS) for 18 months, from Sept. 4, 2021, through March 3, 2023.

The extension of Yemen for TPS allows approximately 1,700 current beneficiaries to retain TPS through March 3, 2023, as long as they meet TPS eligibility requirements. The re-designation of TPS for Yemen allows an estimated 480 additional Yemeni nationals (or individuals having no nationality who last habitually resided in Yemen) who have been continuously residing in the United States since July 5, 2021, and continuously physically present in the United States since Sept. 4, 2021, to file initial applications to obtain TPS, if they are otherwise eligible.

Yemen’s 18-month designation will go into effect on Sept. 4, 2021. A Federal Register notice explains the procedures necessary for an individual to re-register or submit an initial registration application under the designation and to apply for an Employment Authorization Document.

BREAKING NEWS: 9TH CIRCUIT FEDERAL COURT INVALIDATES ORDER INCREASING THE MINIMUM TEA INVESTMENT TO $900,000

Date: 06/23/2021

On June 22, 2021, Judge Jacqueline Scott Corley of the U.S. District Court of the Northern District of California (the “Court”) issued an order granting summary judgment in Plaintiff’s favor in the matter of Behring Regional Center LLC V. Chad Wolf, et al.
In summary, Plaintiff sought both (1) a declaratory judgment that the Final EB-5 Rule (changing the minimum investment amount from $500,000.00 to $900,000.00 among other changes) which went into effect on November 21, 2019, is without force and effect, as well as (2) an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.
The Court granted relief on the first item and issued remand with vacatur – essentially invalidating the Final EB-5 Rule. However, the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the Administrative Procedure Act’s (APA) rulemaking process. Therefore, the Court has set aside the Final EB-5 Rule and has remanded the matter back to the agency (Department of Homeland Security).
Although the Court did invalidate the Final EB-5 Rule, it is highly likely that Secretary Mayorkas will take action to reinstate the Final EB-5 Rule as the Court declined to grant Plaintiff an injunction barring Secretary Mayorkas from reinstating the Final EB-5 Rule absent compliance with the APA’s rule-making process.

Trump Era Standards for Asylum Applications Has Been Reversed

Date: 06/22/2021

This month, the Biden administration overturned two Trump-era policies that limited asylum eligibility for domestic violence survivors and others.  US asylum law requires successful applicants to demonstrate that they are unable to return to their home countries due to a well-founded fear of persecution on account of their race, religion, nationality, political opinion, or their “membership in a particular social group.”  Under the Trump administration, the Attorney General reinterpreted the definition of “particular social group” in a way that had made it harder for asylum-seekers fleeing violence by private actors, including domestic partners and gang members, to qualify for protection in the US.  This welcome move by the Biden administration restores the “particular social group” definition and case law to what it had been before Trump took office.  The change is expected to make it easier for individuals fleeing gang violence, domestic violence, and other sexual violence to successfully obtain asylum protections in the United States.

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