On November 19, 2020, the U.S. District Court for the District of Columbia enjoined the government from suspending K-1 fiancée visa adjudications for the named plaintiffs in Milligan v. Pompeo due to the geographic COVID-related Presidential Proclamations (P.P.s) 9984, 9992, 9993, 9996, and 10041. These COVID-related geographic proclamations suspended entry into the United States of foreign nationals who had been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, or Brazil in the 14-day period prior to their entry or attempted entry into the United States. On January 25, 2021 President Biden signed P.P. 10143 continuing the suspension of entry of certain travelers physically present in the Schengen Area, the United Kingdom, the Republic of Ireland, and Brazil, and expanding restrictions to include travelers present in South Africa. The restrictions on travelers physically present in the People’s Republic of China and the Islamic Republic of Iran also remain in effect.
K-1 visa applicants who are named plaintiffs in Milligan v. Pompeo and subject to a geographic proclamation should contact their nearest Embassy or Consulate for guidance on scheduling a visa interview. While such applicants may, pursuant to the court order, be scheduled for a visa interview even though they are subject to a COVID-related geographic proclamation, the court order does not require that plaintiffs be given special priority ahead of other K visa applicants who have requested interviews or who already have been scheduled for interviews. Even if issued visas, K-1 plaintiff applicants remain subject to the geographic P.P.s and, unless able to meet the criteria for an exception, are barred from entering the United States if they have been present in a country covered by a geographic P.P. in the 14 days prior to entry.
K visa applicants who are not plaintiffs in Milligan v. Pompeo and who are physically present in a country covered by any of the COVID-related geographic proclamations (the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, or South Africa) will not have their K visa application processed unless the applicant is eligible for a National Interest Exception. K visa applicants who are physically present in a country covered by any of the COVID related geographic proclamations, who are not plaintiffs in Milligan v. Pompeo, and who are not eligible for a National Interest Exception cannot be issued a K visa and thus will not be scheduled for a K visa interview while the geographic proclamations remain in effect. K fiancé visa applicants are not spouses of U.S. citizens and therefore are subject to the geographic proclamations.
The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March 2020 and will continue to do so as they are able. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services. Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on what services that post is currently able to offer.
K visa applicants who are not plaintiffs in Milligan v. Pompeo and who are not subject to COVID-related geographic proclamations will continue to have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance. Please check the website of the Embassy or Consulate where you wish to apply to see what categories of visas are currently being processed.
Phased Resumption of Routine Visa Services for K-1 , IR-1, and CR-1 Visas
The Department of State suspended routine visa services worldwide in March 2020 due to the COVID-19 pandemic. In July 2020, U.S. Embassies and Consulates began a phased resumption of routine visa services.
The resumption of routine visa services, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities. U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March and will continue to do so as they are able. As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services.
We are unable to provide a specific date for when each mission will resume specific visa services, or when each mission will return to processing at pre-pandemic workload levels. See each U.S. Embassy or Consulate’s website for information regarding operating status and which services it is currently offering.
Our missions overseas continue to provide all possible services to U.S. citizens. More information is available on each post’s website.
Applicants with an urgent matter who need to travel immediately should contact the nearest embassy or consulate to request an emergency appointment. Contact information is on the embassy or consulate’s website.
FAQ
Q. Which additional visa services are embassies/consulates beginning to provide?
All of our missions are continuing to provide emergency and mission-critical visa services. As post-specific conditions permit, and after meeting demand for services to U.S. citizens, our missions will phase in processing some routine immigrant and nonimmigrant visa cases. Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens including intercountry adoptions (consistent with Presidential Proclamation 10014) fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications. Posts processing non-immigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and temporary employment visas (consistent with Presidential Proclamation 10052). We expect the volume and type of visa cases each post will process to depend on local circumstances. An embassy or consulate will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.
Q. What criteria are missions using to determine when to resume routine services?
We are closely monitoring local conditions in each country where we have a U.S. presence. Local conditions that may affect when we can begin providing various public services include medical infrastructure, COVID-19 cases, emergency response capabilities, and restrictions on leaving home.
Q. What steps are being taken to protect customers from the spread of COVID-19?
The health and safety of our workforce and customers will remain paramount. Our embassies and consulates are implementing safeguards to keep staff and customers safe, including implementing physical distancing in our waiting rooms, scheduling fewer interviews at a time, frequent disinfection of high touch areas, and following local health and safety regulations.
Q. Do the various Presidential Proclamations/travel restrictions still apply, or are those lifting with the resumption of visa services?
The five geographical COVID-19 Proclamations (P.P. 9984, 9992, 9993, 9996, 10041) and the two COVID-19 Labor Market Proclamations suspending the entry of certain aliens (P.P. 10014 and 10052) remain in effect.
Q: Is my situation an emergency? I need to go the United States immediately for X.
Applicants can find instructions on how to request an emergency visa appointment at the Embassy or Consulate’s website.
Q. What about my application fee that expired while routine services were suspended?
The Machine Readable Visa (MRV) fee is valid within one year of the date of payment and may be used to schedule a visa appointment in the country where it was purchased. However, the Department understands that as a result of the pandemic, many visa applicants have paid the visa application processing fee and are still waiting to schedule a visa appointment. We are working diligently to restore all routine visa operations as quickly and safely as possible. In the meantime, the Department extended the validity of MRV fees until September 30, 2022, to allow all applicants who were unable to schedule a visa appointment due to the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the fee they already paid.
Posted by: Christopher M. Pogue, Esq AT 01:53 pm
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President Biden has announced draft legislation to be forwarded to congress to begin to normalize the lives of tens millions of people living in the US that today do not have a lawful immigration status to live and work in the United States.
The bill would allow undocumented immigrants who were in the United States before Jan. 1 to apply for temporary legal status after passing background checks and paying taxes. As newly minted “lawful prospective immigrants,” they would be authorized to work, join the military and travel without fear of deportation. After five years, they could apply for green cards.
Converting more than three times that many people into full citizens could open the door to one of the most significant demographic shifts in modern U.S. history, lifting millions out of the shadows and potentially into higher-paying jobs, providing them with welfare benefits, health coverage and Social Security eligibility while eventually creating many new voters.
In the past immigration reform has stalled in Congress time and again, primarily over what is widely known as amnesty. Despite beefed-up border enforcement and employer sanctions, Mr. Reagan’s overhaul failed to curb the arrival of unauthorized immigrants.
While Congress has wrestled with how to revamp the immigration system, the immigrants have continued to live, work and raise families in the United States. More than 60 percent have resided in the country for more than a decade and they have more than four million U.S.-born children. They account for 5 percent of the work force, representing the backbone of the agriculture, construction and hospitality sectors.
The largest share of unauthorized immigrants is from Mexico. Having survived treacherous river and desert crossings to reach the United States, they found a nation willing to look past laws that prohibit hiring them, to employ them in fields and factories, and in homes as nannies and housekeepers.
Presidents George W. Bush and Barack Obama both championed comprehensive immigration reform with a strong enforcement component and a pathway to legalization for undocumented people. But the immigration packages that were debated in Congress — in 2006, 2007 and 2013 — all stalled.
Among the concerns raised by opponents are that new citizens will vote as a solid Democratic bloc, displace American workers and become a burden on the health care system and other public services. Some predict that any legalization program would encourage more people from impoverished Latin American countries to make the trek north.
Other experts argue there are benefits of legalization. Opening a pathway to citizenship for nearly 11 million people, seven to eight million of whom participate in the labor force, is tantamount to “an economic stimulus,” according to Giovanni Peri, an economics professor at the University of California, Davis.
Between 2005 and 2015, new immigrants accounted fornearly half of the growth in the working-age population, and in the next two decades, immigrants will be key to offsetting an aging population that is retiring. Demographers say the increased educational attainment of Americans coupled with a shortage of blue-collar workers highlights the need for immigrants, in ever larger numbers, to perform low-skilled jobs. About five million of them work in jobs designated as “essential” by the government.
Among the biggest backers of the Biden initiative are employers who rely on immigrants. Through the years, meatpacking plants, dairy farms and a multitude of other worksites have been caught up in immigration raids targeting unauthorized workers.
Posted by: Christopher M. Pogue, Esq AT 11:55 am
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It's morning again in America. The slate is wiped clean. It's time to reclaim the mantle as the shining city on the hill.
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”
Reverse the travel ban on predominantly Muslim countries
Trump kicked off his presidency signing a hastily put-together executive order restricting entry into the US from predominantly Muslim countries. Biden moved to repeal those bans.
He will also instruct the State Department to restart visa processing for affected countries and will call for a review of other Trump administration "extreme vetting" practices.
Biden's immigration bill includes a provision that would limit presidential authority to issue future bans.
Preserve DACA
The Obama-era Deferred Action for Childhood Arrivals program, which shields undocumented immigrants who came to the US as children from deportation, has been in limbo since President Donald Trump tried to terminate the program in 2017.
While the Supreme Court blocked Trump's attempt to end DACA, his administration continued to try to limit the program.
Biden signed a presidential memorandum directing the Homeland Security secretary, in consultation with the attorney general, to take actions preserving the program. Biden's proposed immigration legislation will include an immediate pathway to citizenship for beneficiaries of the program.
Extend relief for Liberians
Biden signed presidential memorandum extending Deferred Enforced Departure -- a form of relief for people from countries facing unrest or natural disasters -- until June 30, 2022, for Liberians residing in the United States.
Revoke Trump's interior enforcement executive order
Biden revoked Trump's 2017 executive order that made all undocumented immigrants a priority for arrest by Immigration and Customs Enforcement, saying his administration will "reset the policies and practices for enforcing civil immigration laws to align enforcement with these values and priorities."
Biden also called on his administration to review agency actions put in place under Trump's 2017 order and issue revised guidance.
Send comprehensive immigration legislation to Congress
The bill would provide an immediate pathway to citizenship for farmworkers, DACA recipients and Temporary Protected Status holders. It sketches out a plan for undocumented immigrants that would allow them to eventually apply for green cards if they pass background checks and pay taxes.
The bill also aims to clear visa backlogs, improve immigration courts and authorize funding for border technology, as well as provide $4 billion in funding to increase assistance to El Salvador, Guatemala and Honduras and to set up safe and legal channels for migrants to seek protection.
A group of House Democrats, led by Rep. Linda Sanchez, announced Wednesday they will lead the effort to pass Biden's immigration bill on Capitol Hill.
In a narrowly-held Senate, the climb on immigration is steep especially given how far to the right Republicans have moved on the issue since the 2013 bipartisan bill. Sen. Bob Menendez will lead the bill on the Senate side. This is yet another sign of the coordinated approach the Biden administration is taking with Democratic allies on the hill to push their agenda forward.
Posted by: Christopher M. Pogue, Esq AT 08:54 am
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Temporary Protected Status (TPS) Work Documents are now extended automatically for: El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal until October 4, 2021.
We expect extensions to continue for s long as the preliminary injunction ordered by the court in Ramos, etal v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) remains in effect, or by other order of the court.
TPS for current beneficiaries under the designation will continue, provided that they properly re-registered for TPS during at least one of the registration periods for their country. If you have not re-registered during at least one of the following registration periods, you should file now and explain your reasons for filing late.
For country specific guidance please see the links below to the latest information available for I-9 compliance.
Naturalization ceremonies in Soutwest Ohio, whether scheduled to occur in the courthouse or at off-site locations, are suspended until further order of this Court.
Ceremonies will automatically be rescheduled by USCIS as Covid 19 restrictions allow.
To complete Form I-9, employees requiring verification who are waiting for EAD may continue to present a Form I-797, with a notice date on or after 12/1/19 through 8/20/20 and indicating that USCIS has approved the employee’s Form I-765, through 2/1/21 as a List C #7 document.
Previously USCIS indicated:
Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.
THE I-797 NOTICE OF ACTION DESCRIBED ABOVE DOES NOT PROVE EVIDENCE OF IDENTITY OR SERVE AS A LIST A DOCUMENT ESTABLISHING BOTH IDENTITY AND EMPLOYMENT AUTHORIZATION OR A LIST B DOCUMENT ESTABLISHING IDENTITY FOR FORM I-9 PURPOSES.
For Form I-9 completion, employees who present a Form I-797 Notice of Action described above for new employment must also present their employer with an acceptable List B document that establishes identity. The Lists of Acceptable Documents is on Form I-9. Current employees who require reverification can present this Form I-797 Notice of Action as proof of employment authorization under List C.
By December 1, 2020, employers must reverify employees who presented this Form I-797 Notice of Action as a List C document. These employees will need to present their employers with new evidence of employment authorization from either List A or List C.
We encourage employers to accept new EADs presented by employees as soon as they receive them from USCIS prior to December 1, 2020, to satisfy the reverification requirement. However, it is the employees’ choice whether to present their new EADs, or a different document from either List A or List C.
Posted by: Christopher M. Pogue, Esq AT 10:14 am
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Practice Alert: Receipt Notice Delays for I-485s and I-140s Filed with USCIS Lockbox
AILA Doc. No. 20111936 | Dated November 19, 2020
The American Immigration Lawyers Association has been made aware of delays in the issuance of receipt notices for I-485, Application to Register Permanent Residence or Adjust Status and I-140, Immigrant Petition for Alien Worker filed with the USCIS Lockbox in late September and in October 2020.
Some members report that they are slowly starting to receive such receipt notices, but it appears that the notices are taking at least six weeks or longer to be issued. AILA recently reached out to the USCIS Lockbox regarding these delays. Specifically, AILA has requested the Lockbox to confirm:
the current processing times for receipt notices to be issued for I-485 applications and I-140 petitions; and
the timeframe stakeholders should wait before following up with the Lockbox regarding receipt delays.
Posted by: Christopher M. Pogue, Esq AT 10:56 am
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U.S. Citizenship and Immigration Services (USCIS) today announced it will increase fees for premium processing, effective Oct. 19, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, signed into law on Oct. 1. The USCIS premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days. The Act included the Emergency Stopgap USCIS Stabilization Act, which requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes.
Pub. L. No. 116-159 increases the fee for Form I-907, Request for Premium Processing, from $1,440 to $2,500, for all filings except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. The premium processing fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status is increasing from $1,440 to $1,500.
Any Form I-907 postmarked on or after Oct. 19 must include the new fee amount. If USCIS receives a Form I-907 postmarked on or after Oct. 19 with the incorrect filing fee, we will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx and DHL), the postmark date is the date reflected on the courier receipt.
Pub. L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.
Let your congressman know what you think about USCIS's failure to expand premium processing to family based immigration cases, such as spouses and stepchildren of US Citizens.
A federal judge in California blocked a Trump administration rule that would've hiked up naturalization fees by more than 80% and charged a first-time fee for asylum applicants, days before the regulation was set to take effect.
US Citizenship and Immigration Services, the agency responsible for the country's immigration and naturalization system, updated and finalized its fee structure after a nearly nine-month review earlier this year.
U.S. District Judge Jeffrey White granted a motion Tuesday that will stop U.S. Citizenship and Immigration Services from imposing the fee changes that were expected to go into effect Friday. Though the ruling was made in California, the decision calls for the fees to be blocked across the country because of the various local and state governments that argued against the fee changes.
USCIS did not immediately respond to a request for comment.
However in another recent decision USCIS was permitted to re-institute the I-944 and the Trump Public Charge Rules that more aggressively target legal immigration by family members to the US.
With that said, the same decision that blocked the USCIS fee increase also created doubt that the any changes made by the Trump Administration since the resignation of Kristen Nielson in in April 2019 were not lawful as Trump failed to follow federal law in appointing her replacement Chad Wolf. Therefore all changes done by Chad Wold since early 2019 could well be found to be invalid as Chad Wolf was not actually lawfully in charge of the Department of Homeland Security when actions he worked on were ordered.
Posted by: Christopher M. Pogue, Esq AT 08:29 pm
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In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30, 2020, to assist applicants, petitioners, and requestors who are responding to certain:
Requests for Evidence;
Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
Motions to Reopen an N-400 Pursuant to 8 CFR 335.5,
Receipt of Derogatory Information Aer Grant;
Filing date requirements for Form N-336,
Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA);
or Filing date requirements for Form I-290B, Notice of Appeal or Motion.
Notice/Request/Decision Issuance Date: This flexibility applies to the above documents if the issuance date listed on the request, notice, or decision is between March 1, 2020, and Jan. 1, 2021, inclusive.
Response Due Date: USCIS will consider a response to the above requests and notices received within 60 calendar days aer the response due date set in the request or notice before taking any action. Additionally, we will consider a Form N-336 or Form I-290B received up to 60 calendar days from the date of the decision before we take any action
Posted by: Christopher M. Pogue, Esq AT 10:13 am
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