Wednesday, September 28 2022

USCIS Field Office Operations Updates

Below are the latest updates in trends at local USCIS Field Offices from around the country.

Interviews for applications have been scheduled at some ASCs, including San Francisco, Dallas, and Albuquerque. Interview notices look like a standard interview notice but direct the applicant to appear at the ASC address rather than the field office. When applicants arrive, the officers conduct interviews remotely from other locations. In addition, virtual interviews are being conducted, with applicants in one field office and the officer located in another field office.

We have received multiple reports of interviews being waived in family-based cases. Attorneys/applicants may receive an RFE for any additional information needed, including medical exams or even bona fides in a marriage-based case.

We have received a number of reports of RFEs being issued by USCIS offices in other jurisdictions (not the jurisdiction of the applicant) for missing items (such as medical exams). This may be a result of cases being transferred to other jurisdictions for adjudication.

Posted by: Christopher M. Pogue, Esq AT 01:19 pm | Permalink | Email

Visa Retrogression in October Visa Bulletin, and What it means for AC21 Portability for those with a Pending Adjustment of Status

Thursday, September 08 2022

Starting in October 2022 the Visa Bulletin will retrogress many available visa dates which may lead to many with a pending Adjustment of Status to remain stuck with their Adjustment of Status pending for longer than anticipated. Perhaps years more for India in particular.

With that in mind, in 2000, Congress enacted the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) which, in part, added INA 204(j). This provision allows certain employment-based adjustment of status applicants experiencing delays in the employment-based adjustment of status process some flexibility to change jobs or employers while their Application to Register Permanent Residence or Adjust Status (Form I-485) is pending.

If eligible under INA 204(j), the Immigrant Petition for Alien Workers (Form I-140) (and underlying permanent labor certification, if applicable) may remain valid and the beneficiary of an approved employment-based immigrant visa petition in the 1st, 2nd, or 3rd preference category may transfer, or “port,” to a qualifying new job offer that is in the same or a similar occupational classification as the job offer for which the petition was filed. The new job offer may be through the same employer that filed the petition or a different employer.

These provisions are referred to as “portability.” Employment-based adjustment applicants who use such benefits are considered to have “ported” the petition filed on their behalf to the new job offer.

An applicant who successfully ports the petition on which the adjustment application is based to a new job or employer retains the priority date of the underlying petition.

AC21 Portability Eligibility:

To qualify for portability under INA 204(j), the adjustment applicant must meet the following eligibility requirements:

The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved;
The petition is filed in the employment-based 1st, 2nd, or 3rd preference category;

The applicant’s properly filed adjustment application has been pending with USCIS for 180 days or more at the time USCIS receives the request to port;
The new job offer through which the applicant seeks to adjust status is in the same or similar occupational classification as the job specified in the petition; and

The applicant submitted a request to port. If the applicant makes a request to port on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J). If the applicant requested to port before January 17, 2017, the applicant could have requested to port through a letter, since Form I-485 Supplement J did not go into effect until January 17, 2017.

The new job offer may be with the same petitioner or with an entirely new employer, including self-employment. Applicants can submit the portability request and evidence with the adjustment application or in any in-person interviews or in response to a request or other notice from USCIS.

New Job in Same or Similar Occupational Classification

To determine whether a new job offer is valid for purposes of INA 204(j) portability, the new job offer must be in either the same occupational classification or a similar occupational classification as the job specified in the underlying Form I-140 petition.

Same Occupational Classification

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved.^[17] Accordingly, USCIS evaluates whether the jobs are identical, resembling in every relevant respect, or the same kind of category or thing when determining whether two job offers are in the same occupational classification.

Similar Occupational Classification

The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.^[18] When determining whether two job offers are in similar occupational classifications, USCIS evaluates whether the jobs share essential qualities or have a marked resemblance or likeness.

Factors to Consider

To determine if the new job offer is in the same or similar occupational classification as the job listed on the petition, officers evaluate the totality of the circumstances. As part of this evaluation, officers may consider and compare various factors and evidence relating to the jobs. Relevant factors include, but are not limited to:

The U.S. Department of Labor (DOL) occupational codes assigned to the respective jobs;

Job duties;

Job titles;

The required skills and experience;

The educational and training requirements;

Any licenses or certifications specifically required;

The offered wage or salary; and

Any other material and credible evidence relevant to a determination of whether the new position is in the same or a similar occupational classification.

A change to the same or a similar occupational classification may involve lateral movement, career progression, or porting to self-employment, either in the same or a different geographic location.

With respect to porting to self-employment, all other eligibility requirements must be satisfied. First, as with all other portability determinations, the employment must be in a same or similar occupational classification as the job for which the original petition was filed. Second, the adjustment applicant should provide sufficient evidence to confirm that the applicant’s business and the job offer are legitimate. If the submitted evidence is insufficient to confirm the legitimacy, or the officer identifies fraud indicators that raise doubts about the legitimacy of the self-employment, the officer may request evidence to show that the self-employment is legitimate. Third, as with any portability case, USCIS focuses on whether the petition represented the truly intended employment at the time of the filing of both the petition and the adjustment application. This means that, as of the time of the filing of the petition and at the time of filing the adjustment application (if not filed concurrently), the original petitioner must have had the intent to employ the beneficiary, and the beneficiary must also have intended to undertake the employment upon adjustment. Officers may take the petition and supporting documents themselves as evidence of such intent, but in certain cases requesting additional evidence or initiating an investigation may be appropriate.

Determining Appropriate SOC Code

Determining the appropriate SOC codes for the relevant jobs depends on the type of petition filed on behalf of the adjustment applicant:

For petitions that are supported by labor certifications from DOL, the SOC codes for the original position have been certified by DOL. The SOC code associated with the new position, as reported on Supplement J, must be established by the applicant with supporting evidence from the intending employer.

For petitions that do not require labor certifications from DOL, the applicant must establish the proper SOC code for both the original position and the new position. The applicant should submit supporting evidence from the intending employer for the new position.

With respect to SOC codes other than those certified by DOL in a labor certification, the burden is on the applicant to demonstrate by a preponderance of the evidence that the SOC code may properly be associated with the relevant position.

If the applicant establishes by a preponderance of the evidence that the detailed occupational codes describing the original and new positions are the same (for example, those where all six digits of the code match), and the totality of the circumstances supports that determination, officers may generally treat such evidence favorably in determining whether the two positions are in the same or similar occupational classification(s) for INA 204(j) portability purposes.

Similarly, if the applicant establishes by a preponderance of the evidence that the two jobs are described by two distinct detailed occupation codes within the same broad occupation code, officers may treat such evidence favorably in determining whether the two positions are in similar occupational classifications. USCIS generally considers such positions to be in similar occupational classifications unless the preponderance of the evidence indicates that favorable treatment is not warranted (upon review of the evidence and considering the totality of the circumstances).

For example, the detailed occupations of Computer Programmers (15-1251), Software Developers (15-1252), Software Quality Assurance Analysts and Testers (15-1253), Web Developers (15-1254), and Web and Digital Interface Designers (15-1255) are found within the broad occupational group of Software and Web Developers, Programmers, and Testers (15-1250). Officers may consider these detailed occupations to be in similar occupational classifications given the largely similar duties and areas of study associated with each classification.

In certain instances, however, simply establishing that the two jobs are described within the same broad occupation may not be sufficient to establish by a preponderance of the evidence that the two jobs are in similar classifications.

For example, the detailed occupations of Geographers (19-3092) and Political Scientists (19-3094) are found within the broad occupational code for Miscellaneous Social Scientists and Related Workers (19-3090). Although such occupations are grouped together in the same broad occupational code, the workers in those respective occupations largely do not share the same duties, experience, and educational backgrounds. In such cases, the officer may determine that the two jobs are not in similar occupational classifications for purposes of INA 204(j) portability.

The burden is on the applicant to demonstrate that the relevant positions are in the same or similar occupational classification(s). When making such determinations, and when determining whether the relevant positions have been properly categorized by the applicant under the SOC, USCIS reviews the evidence of each case and considers the totality of the circumstances.

Career Progression

USCIS recognizes that persons earn opportunities for career advancement as they gain experience over time. As with other cases, USCIS considers cases involving career progression under the totality of the circumstances to determine whether the applicant has established by a preponderance of the evidence that the relevant positions are in similar occupational classifications for INA 204(j) portability purposes.

In many instances, a person’s progress in his or her career may easily fit the standards discussed in the preceding guidance, such as when a person moves into a more senior but related position that does not have a managerial or supervisory role (such as a promotion from a software engineer to a senior software engineer). In such cases, officers should consider whether the original position and the new position are in the same or similar occupational classification(s), consistent with the preceding section.

In other instances, career progression may involve a different analysis, such as when a person moves from a non-managerial or non-supervisory position into a managerial or supervisory role. In such cases, officers may treat certain evidence favorably in determining whether the two jobs are in similar occupational classifications for purposes of INA 204(j) portability. Specifically, in cases where the evidence submitted by the applicant establishes that the applicant is primarily responsible for managing the same or similar functions of their original jobs or the work of persons whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions.

Example (Similar Occupational Classification)

If the occupation described in the original job offer was assigned the SOC code of 15-1152 for Software Developers, officers may determine that a new job offer described in the SOC code of 11-3021 for Computer and Information Systems Managers is in a similar occupational classification.

This is because Computer and Information Systems Managers generally manage those in positions that fall within occupational classifications that are the same as or similar to the occupational classification of the original job offer (such as Computer Programmers (15-1251), Software Developer (15-1252), and Web Developer (15-1254), all of which are grouped together under the broad occupational code for Software and Web Developers, Programmers and Testers (15-1250)).

Example (Not Similar Occupational Classification)

If the occupation described in the original job offer was assigned the SOC code of 35-2014 for Cooks, Restaurant, officers may determine that a new job offer described in the SOC code of 11-9051 for Food Service Managers is not in a similar occupational classification.

This is because the duties of Food Service Managers (duties that include planning, directing, or coordinating activities of an organization that serves food and beverages) are generally different from those of restaurant cooks, who largely prepare meals. Moreover, the SOC code for Food Service Managers specifically excludes “Chefs and Head Cooks,” who supervise restaurant cooks and persons in other similar positions.

Non-Managerial Career Progression

There may be instances where the evidence (in light of the totality of the circumstances) warrants a favorable portability determination based on normal career progression. This may apply even though the person is not managing persons in jobs that are in the same or similar occupational classification(s) as the applicant’s original position.

For example, if an applicant’s original job duties as a restaurant cook included ordering supplies, setting menu prices, and planning the daily menu, a change to a food service manager position may be considered a normal career progression. This may apply if the applicant’s responsibilities as a food service manager include ordering food and beverages, equipment, and supplies; as well as overseeing food preparation, portion sizes, and overall presentation of food.

While the applicant may not be directly supervising cooks in his or her new position, the applicant may provide evidence that he or she is overseeing some of the functions that a cook would perform to demonstrate that the two positions are in similar occupational classifications.

As noted above, in all cases that involve career progression, officers must consider the totality of the circumstances to determine whether the preponderance of the evidence establishes that the two positions are in similar occupational classifications for INA 204(j) portability purposes.

Other Variations

Even in cases where SOC codes are not grouped together or the relevant positions do not reflect normal career progression, USCIS reviews the evidence presented under the totality of the circumstances to determine if the two jobs can be considered to be in the same or similar occupational classification(s).

For example, a person whose original job was coded within the major group code of 15-0000 for Computer and Mathematical Occupations may find a job in an engineering field that is classified under the major group code of 17-0000 for Architecture and Engineering Occupations. If the preponderance of the evidence indicates that the two jobs share essential qualities or have a marked resemblance or likeness, the person may be eligible to port to the new position.

USCIS also recognizes that variations in job duties arising from performing jobs for different employers, including employers in different economic sectors, do not necessarily preclude two positions from being in similar occupational classifications for purposes of INA 204(j) portability.

For example, if the original position was for a Personal Financial Advisor (13-2052) at a financial consulting firm, the applicant’s duties may have included reviewing financial information. This may include using knowledge of tax and investment strategies; assessing clients’ assets, liabilities, cash flow, taxes, and financial objectives; and networking and business development.

If the new position is for a Financial Analyst (13-2051) in-house with a pharmaceutical company, the job duties may involve reviewing and recommending the financial objectives of the organization, including quantitative analyses of information involving investment programs or financial data of public or private institutions, including valuation of businesses.

While the duties of the two positions differ to some degree, such positions may be similar to each other when viewed in the totality of the circumstances considering that the overarching duty of both positions is to apply accounting and investment principles in order to develop financial strategies; and the same skills, experience, and education may be required to perform both jobs.

As a further example, if the original position was for a Microbiologist (19-1022) at a federal research laboratory, the applicant’s duties may have included: investigate the growth, structure, development, and other characteristics of microscopic organisms, such as bacteria, algae, or fungi. Includes medical microbiologists who study the relationship between organisms and disease or the effects of antibiotics on microorganisms.

If the new job offer is for a Medical Scientist, Except Epidemiologist (19-1042) at a private medical research laboratory, the duties may include: research dealing with the understanding of human diseases and the improvement of human health. Engage in clinical investigation, research and development, or other related activities.

When reviewing the evidence under the totality of the circumstances, USCIS may consider the two positions to be similar because the primary duties involved share essential qualities or have a marked resemblance or likeness, particularly if they require similar education, experience, and skills to perform the associated duties, even though the two positions do not share the same broad occupation.

Differences in Wages

USCIS may consider the wages offered for the original position and the new position in determining whether the two positions meet the requirements for INA 204(j) portability. The mere fact that both positions offer similar wages is not conclusive evidence to establish that the two positions are in the same or similar occupational classification(s). Likewise, a difference in salaries alone would not preclude an officer from finding that two positions are in the same or similar classification.

USCIS recognizes that normal raises occur through the passage of time to account for inflation or promotion. USCIS also recognizes that there may be differences in pay due to varying rates of pay in different economic sectors or geographic locations, as well as other factors, such as corporate mergers, size of employer, or differences in compensation structure. Additionally, there could be differences in wages in cases involving moves from for-profit employers to nonprofit employers, academic institutions, or public employers (or vice versa).

Applicants should explain in detail any substantial discrepancy in wages between the original position and the new position. In all instances, officers review a difference in wages and any explanation for that difference along with all other evidence presented.

Posted by: Christopher M. Pogue, Esq AT 09:39 am | Permalink | Email

Cameroon for Temporary Protected Status (TPS) for 18 months

Monday, June 06 2022

Today, the Department of Homeland Security (DHS) announced 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.

“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”

A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.

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.

Posted by: Christopher M. Pogue, Esq AT 09:58 am | Permalink | Email

Automatic Employment Authorization Document (EAD) Extension

Thursday, May 05 2022

Certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring employment authorization and/or EADs while their application is pending. You qualify for this extension if you:

Properly filed Form I-765 for a renewal of your employment authorization and/or EAD before your current EAD expired, and
Are otherwise eligible for a renewal, which means that:
- Your renewal application is under a category that is eligible for an automatic extension (see the list of categories below); and
- The Category on your current EAD matches the “Class Requested” listed on your Form I-797C Notice of Action, Receipt Notice. (Note: If you are a Temporary Protected Status (TPS) beneficiary or pending applicant, your EAD and this Notice must contain either the A12 or C19 category, but the categories do not need to match each other. In addition, for H-4, E, and L-2 dependent spouses, an unexpired Form I-94 indicating H-4, E, or L-2 nonimmigrant status (including E-1S, E-2S, E-3S, and L-2S class of admission codes) must accompany Form I-797C when presenting proof of employment authorization to an employer for Form I-9, Employment Eligibility Verification, purposes).

Automatic Extension Time Period—Temporary Increase to up to 540 Days

Normally, DHS regulations provide for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, DHS has published a temporary final rule increasing the extension period. Effective May 4, 2022, DHS is temporarily increasing the extension period and providing up to 360 days of additional automatic extension time, for a total of up to 540 days, to eligible renewal applicants. The automatic extension time is counted from the expiration date of the employment authorization and/or EAD. This temporary increase is available to eligible renewal applicants with pending applications if you filed your Form I-765 renewal application either:

Before May 4, 2022, and your 180-day automatic extension has since expired;
Before May 4, 2022, and your 180-day automatic extension has not yet expired; or
Between May 4, 2022 and Oct. 26, 2023, inclusive of these dates.

If you file your Form I-765 renewal application after Oct. 26, 2023, the normal 180-day automatic extension period will apply.

Proof of an Automatic Extension

The automatic extension period, including the temporary increase to the extension period, is provided to certain renewal applicants to help prevent gaps in employment authorization and documentation.

If you file a Form I-765 renewal application on or after May 4, 2022, USCIS will send you a Form I-797C Notice of Action receipt notice that has information regarding the up to 540-day automatic extension. If you are eligible for the automatic extension, this receipt notice, together with your expired EAD (and your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes) will serve as acceptable proof of employment authorization and/or EAD validity during the up to 540-day automatic extension period.

If you filed a Form I-765 renewal application before May 4, 2022, you should have received a Form I-797C Notice of Action receipt notice that describes the automatic extension period of up to 180 days. You will not receive a new I-797C receipt notice reflecting the increased employment authorization and/or EAD automatic extension period. However, Form I-797C receipt notices that refer to an up to 180-day automatic extension will still meet the regulatory requirements for completing Form I-9, including if your 180-day automatic extension expired prior to May 4, 2022.

To present acceptable proof of the automatic extension of employment authorization and/or EAD validity, you can show your Form I-797C receipt notice that refers to the 180-day extension, along with your qualifying EAD (and also your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes). This document combination is sufficient proof of an up to 540-day automatic extension, counting from the expiration date on your current EAD.

If you are a renewal applicant and your 180-day automatic extension expired before May 4, 2022, you can still receive the benefit of the temporary increase of the automatic extension period. Your employment authorization and/or EAD validity will automatically resume beginning on May 4, 2022, for any time remaining within the up to 540-day automatic extension period. To calculate whether there is any automatic extension time remaining, count 540 days from the expiration date stated on the front of the EAD. (If you are an H-4, E, or L-2 dependent spouse, including E-1S, E-2S, E-3S and L-2S class of admission codes, count up to either 540 days or the expiration date on Form I-94, whichever is earlier.) Employers should complete Form I-9 using the same guidance applicable to those who present a Form I-797C Notice of Action receipt notice indicating that the Form I-765 renewal application was filed before May 4, 2022, and that states the normal 180-day automatic extension period.

An individual’s automatic extension period may terminate prior to the maximum period (either 540 or 180 days) either automatically when USCIS issues a denial of the applicant’s Form I-765 renewal application or upon notice.

For guidance on completing Form I-9 covering automatic extensions and proof of employment authorization for hiring, rehiring, and reverification, as well as all other Form I-9-related guidance, visit I-9 Central.

Categories Eligible for Automatic Extensions

The following employment eligible categories are eligible for an automatic extension:

The eligibility category you listed on your Form I-765 renewal application	Description
(a)(3)	Refugee
(a)(5)	Asylee
(a)(7)	N-8 or N-9
(a)(8)	Citizen of Micronesia, Marshall Islands, or Palau
(a)(10)	Withholding of Deportation or Removal Granted
(a)(12)	Temporary Protected Status (TPS) Granted
(a)(17)	Spouse of principal E nonimmigrant with an unexpired I-94 showing E (including E-1S, E-2S and E-3S) nonimmigrant status*
(a)(18)	Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status*
(c)(8)	Asylum Application Pending
(c)(9)	Pending Adjustment of Status under Section 245 of the Act
(c)(10)	Suspension of Deportation Applicants (filed before April 1, 1997) Cancellation of Removal Applicants Special Rule Cancellation of Removal Applicants Under NACARA
(c)(16)	Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)
(c)(19)	Pending initial application for TPS where USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.
(c)(20)	Section 210 Legalization (pending I-700)
(c)(22)	Section 245A Legalization (pending I-687)
(c)(24)	LIFE Legalization
(c)(26)	Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status
(c)(31)	VAWA Self-Petitioners

* For more information on the options available to demonstrate employment authorization for E spouses and L spouses, see E-1 Treaty Traders page (Family of E-1 Treaty Traders and Employees section), E-2 Treaty Investors page (Family of E-2 Treaty Investors and Employees section), E-3 Certain Specialty Occupation Professions from Australia page (Family of E-3 Nonimmigrant Workers section), L-1A Intracompany Transferee Executive or Manager page (Family of L-1 Workers section), or L-1B Intracompany Transferee Specialized Knowledge page (Family of L-1 Workers section).

NOTE: Individuals with a TPS-based EAD may receive an automatic extension of their EAD:

Through publication of a Federal Register notice extending the TPS designation of the individual’s country, if the Federal Register notice also authorizes an automatic extension of covered individuals’ existing EADs; or
Through this automatic extension.

Posted by: Christopher M. Pogue, Esq AT 10:07 am | Permalink | Email

The U.S. will take in up to 100,000 Ukrainian refugees fleeing the war

Thursday, March 24 2022

The United States will welcome up to 100,000 Ukrainians and other displaced people fleeing the conflict in Ukraine, a senior administration official told reporters traveling with President Biden on Thursday.

While most displaced Ukrainians want to stay in Europe, the U.S. government expects to use its refugee admission program as well as the parole system and immigrant and non-immigrant visas to bring in Ukrainians, the official said, noting Ukrainian-Americans are eager to welcome family members into the country. Vulnerable people including LGBTQI people, people with medical needs and journalists and dissidents will also be prioritized, the official said.

This is a fast developing situation, and we expect to learn more in the coming days and weeks.

If you or your loved one is impacted by the Russian invasion of Ukraine, please contact our office and we can discuss with you options that may be available for safely relocating your loved ones to the US at least temporarily.

https://www.npr.org/2022/03/24/1088506487/us-ukraine-refugees

Posted by: Christopher M. Pogue, Esq AT 12:29 pm | Permalink | Email

USCIS Updates Guidance on Employment Authorization for E and L Nonimmigrant Spouses

Monday, March 21 2022

U.S. Citizenship and Immigration Services is updating guidance in the USCIS Policy Manual to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status.

On Nov. 12, 2021, USCIS issued a policy announcement to clarify that we will consider E and L spouses to be employment authorized based on their valid E or L nonimmigrant status. Since the November 2021 announcement, the Department of Homeland Security added new Class of Admission (COA) codes to distinguish between E and L spouses and children.

As of Jan. 30, 2022, USCIS and CBP began issuing Forms I-94 with the following new COA codes for certain E and L spouses: E-1S, E-2S, E-3S, and L-2S. An unexpired Form I-94 reflecting one of these new codes is acceptable as evidence of employment authorization for spouses under List C of Form I-9.

If you are an E or L spouse age 21 or over who has an unexpired Form I-94 that USCIS issued before Jan. 30, 2022, we will mail you a notice beginning on or about April 1, 2022. This notice, along with an unexpired Form I-94 reflecting E-1, E-2, E-3, E-3D, E-3R, or L-2 nonimmigrant status, will serve as evidence of employment authorization. If you are an E or L spouse and under 21, or if you have not received your notice by April 30, email E-L-married-U21@uscis.dhs.gov to request a notice.

We will only send notices to individuals identified as qualifying spouses based on a Form I-539 approved by USCIS. Individuals who received their Form I-94 from U.S. Customs and Border Protection (CBP) should visit www.cbp.gov.

Posted by: Christopher M. Pogue, Esq AT 09:01 am | Permalink | Email

Temporary Protected Status for Afghans

Monday, March 21 2022

The Department of Homeland Security (DHS) announced the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of March 15, 2022, will be eligible for TPS.

“This TPS designation will help to protect Afghan nationals who have already been living in the United States from returning to unsafe conditions,” said Secretary Alejandro N. Mayorkas. “Under this designation, TPS will also provide additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years.”

Secretary Mayorkas is designating Afghanistan for TPS on the statutory basis of ongoing armed conflict and extraordinary and temporary conditions that prevent the country’s nationals from returning in safety. Armed conflict that poses a serious threat to the safety of returning nationals is ongoing in Afghanistan as the Taliban seeks to impose control in all areas of the country and Islamic State-Khorasan (IS-K) conducts attacks against civilians. Extraordinary and temporary conditions that further prevent nationals from returning in safety include a collapsing public sector, a worsening economic crisis, drought, food and water insecurity, lack of access to healthcare, internal displacement, human rights abuses and repression by the Taliban, destruction of infrastructure, and increasing criminality.

Through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis, for humanitarian reasons, for a period of two years and received work authorization. These individuals may also be eligible for TPS. Additional information about registering for TPS can be found at Temporary Protected Status | USCIS.

TPS will apply only to those individuals who are already residing in the United States as of March 15, 2022, and meet all other requirements, including undergoing security and background checks. Those who attempt to travel to the United States after March 15, 2022, will not be eligible for TPS.

The 18-month designation of TPS for Afghanistan 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.

Posted by: Christopher M. Pogue, Esq AT 08:39 am | Permalink | Email

Local Filing of Form I-130 Petitions Filed by U.S. Citizens on Behalf of Afghan, Ethiopian, and Ukrainian Immediate Relatives Fleeing Conflict

Monday, March 21 2022

If you are a U.S. citizen who is physically present overseas with your Afghan, Ethiopian, or Ukrainian immediate family members and have not yet filed an immigrant visa petition with USCIS, you may request to locally file a Form I-130 petition at the nearest U.S. embassy or consulate that processes immigrant visas.

This applies only to U.S. citizens affected by the large-scale disruptive events in Afghanistan, Ethiopia, and Ukraine. Such citizens must be physically present in the country where they wish to file petitions.

They can request to locally file on behalf of their spouses, unmarried children under the age of 21, and parents who fled Afghanistan after August 2, 2021; Ethiopia after November 1, 2020; or Ukraine after February 1, 2022.

If you have already filed a Form I-130 petition with USCIS for your immediate relative and it has not yet been approved, you may inquire with USCIS regarding an expedite request.

Posted by: Christopher M. Pogue, Esq AT 08:30 am | Permalink | Email

U.S. Work-Permit Backlog Is Costing Immigrants Their Jobs

Wednesday, March 16 2022

Processing times for renewals have shot up at the underfunded Citizenship and Immigration Services. Every 15 days, Naina Arora checks a U.S. federal government website to see when she’ll be allowed to work again.

Arora, the wife of an H-1B visa holder, has been on unpaid leave from her job in the operations department of a major health-insurance provider in Pasadena, Calif. since October, when her work permit expired. She had applied for a renewal in advance, assuming it would take something like the three months it had taken her to get her first one in 2019.

Instead, the average processing time listed on the website for cases like hers continues to increase—from 5½ months, to 7½, to 12½. After countless calls to the U.S. Citizenship and Immigration Services (USCIS) case hotline, she finally reached an employee. As she recalls, the response she got was: “I’m so sorry, it’s just bad luck, and we cannot do anything about it. Just wait and pray.”

Work-Permit Renewals

Change in number of backlogged applications

Source: U.S. Citizenship and Immigration Services

Unprecedented delays in approving work-permit renewals are routinely leaving immigrants such as Arora in limbo. The government doesn’t keep statistics on how many people have had their permits expire while waiting for a renewal, but officials estimate that, at its worst in January and February, hundreds per day were losing permission to work.

Work permits, which generally last for 2 years, are automatically extended for 180 days once holders have applied for a renewal. That safeguard, put in place in 2017—at a time when it took an average of five months to process work permits—was supposed to avoid exactly this sort of problem. But it’s often now insufficient.

The lucky ones, like Arora, are placed on unpaid leave, losing their income and also their driver’s license. The less fortunate ones are fired and must resort to working off the books to make ends meet. “I was working an under-the-table job, because I didn’t have any valid documentation,” says one home health aide, who requested anonymity. “So this waiting period has caused us to become illegal employees.”

The people most affected by the work-permit cliff are immigrants waiting for decisions on their applications for asylum or green cards—for which there are also long delays. “We inherited a ship with a bunch of holes punched through the hull,” says a USCIS official who requested anonymity to speak candidly. “Now we’ve patched up those holes, and we’re doggedly bailing out water so that we can truly right the ship for the long haul.”

USCIS found itself on the verge of fiscal collapse in summer 2020; its budget is largely funded by application fees, but applications had plummeted because of the Covid-19 pandemic and Trump-era restrictions on immigration. The agency avoided widespread furloughs, but instituted a hiring freeze that wasn’t lifted until well into 2021.

At the same time, the shutting down of in-person offices for months in 2020 prolonged already-growing processing times. Then, in summer 2020, the Trump administration created a regulation that turned the two-page work-permit application (which the agency claimed took about 12 minutes to complete) into a seven-page one.

The renewal backlog almost doubled in the fiscal year ended Sept. 30, 2021. The government processed only half the work-permit renewals it received from green-card applicants and asylum-seekers.

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Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months

Release Date: March 3, 2022

WASHINGTON — The Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months.

“Russia’s premeditated and unprovoked attack on Ukraine has resulted in an ongoing war, senseless violence, and Ukrainians forced to seek refuge in other countries,” said Secretary Alejandro N. Mayorkas. “In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.”

A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely. These conditions result from the full-scale Russian military invasion into Ukraine, which marks the largest conventional military action in Europe since World War II. This invasion has caused a humanitarian crisis with significant numbers of individuals fleeing and damage to civilian infrastructure that has left many without electricity or water or access to food, basic supplies, shelter, and emergency medical services.

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. Ukraine’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.

Posted by: Christopher M. Pogue, Esq AT 06:25 pm | Permalink | Email

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