Month: April 2022

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As part of the permanent residency process, applicants apply for employment authorization and permission to travel outside of the United States. When approved, applicants have historically received one “combination card” that includes both their employment authorization (EAD) and advance parole (AP) travel permission. In the aftermath of COVID, USCIS processing times for EAD/AP combo cards has slowed significantly, and many applicants for permanent residence have been finding themselves without employment authorization as they wait for USCIS to adjudicate their combo card. In effort to speed up processing times for EADs and try to prevent this gap in employment authorization, USCIS has begun to issue EADs without the requested AP benefit; basically decoupling the combination card. Immigration attorneys and applicants for permanent residence are just now seeing these decoupled benefits being issued, as many people are receiving their EAD, but not their AP travel permission. In most cases, the AP is being approved several weeks to several months later. Any adjustment of status applicants waiting for a pending EAD/AP card should take note that once approved, the EAD may not also include AP travel permission. For more information, reach out to one of our attorneys for a consultation.

The US Department of State (USDOS) has released the April 2022 Visa Bulletin.  For the month of April 2022, the priority date cutoff for the EB-2 India “dates for filing” category has advanced significantly.   USCIS has also indicated that for the month of April 2022, it will be accepting I-485 applications based on the “dates for filing” chart.  For a variety of reasons, more immigrant visas are available in the EB-2 category this fiscal year.  Thus, USCIS is predicting a record number of immigrant visa approvals in the EB-2 category between now and September 30, 2022.  In comparison, the EB-3 India category has retrogressed and is not expected to advance as quickly as the EB-2 category for the foreseeable future.  USCIS is encouraging those who are eligible, including those who filed EB-3 downgrade I-140 petitions with I-485 applications, to apply in the EB-2 category as soon as possible.   Per recent USCIS guidance, one can only transfer a pending EB-3 I-485 application to an approved/pending EB-2 I-140 petition if their priority date is current in the EB-2 India “final action” date category. Thus, for those with priority dates that are current under the EB-2 India “filing date” category, but are not current under the EB-2 India “final action” date category, the only option at this time is to file a 2^nd I-485 application based on the pending/approved EB-2 I-140 petition. Given the expected high demand in the EB-2 India category, it is likely that the EB-2 India category will retrogress significantly before September 30, 2022.  The benefit of proceeding with a 2^nd I-485 application is that going forward those who have filed I-485 applications in both categories will have maximized their chances of being approved for permanent residence as quickly as possible.  For more information on these options or to discuss your individual circumstances, please contact us to schedule a consultation appointment. 

While the processing of immigration applications was already severely delayed prior to the COVID pandemic, the problem has reached records levels since 2020.

Pre-COVID Processing Backlog:                   

USCIS:  5.7 Million Applications                   

DOS: 60,900 Interviews (wait for in-person interview)

Current Processing Backlog:

USCIS: 9.5 Million Applications

DOS: 532,000 Interviews (wait for in-person interview)

Processing Delays for Certain Petitions/Applications:   

• I-485 Green card, based on family petitions in Denver (17 months)
• I-90 Green card Renewal (15 months)
• I-129 Fiancé Visa (10 months) 
• I-130 Petition for Immediate Relative (10 months)
• I-751 Petition to Remove Conditions  (17.5 months)
• I-765 Work Authorization based on pending I-485 (15 months)
• I-765 Work Authorization based on approved DACA  (3 months)
• I-601A Waiver (27 months)
• I-131 Application for Advanced Parole (8 months)
• I-131 Application for Travel Document  (9 months)
• N-400 Application for Naturalization  (12 months)

These delays have resulted in unused green cards in family-based categories. These green cards were then made available to the employment-based categories but only 140,000 if the 226,000 unused green cards were used in the last fiscal year.  

Steps USCIS/DOS have taken to alleviate the backlog problem in Family-based petitions:  

• USCIS is using biometrics from previous appointments/applications
• USCIS increased staffing and overtime at Lockbox facilities 
• DOS will waive in-person interviews for green card applicants who were already issued visas but could not move to US due to COVID travel restrictions        
• USCIS extended work authorization from 1 to 2 years for refugees, asylees, and parolees
• USCIS reduced in-person interviews for refugees and asylees applying to sponsor spouses or children
• USCIS is conducting remote interviews for refugees and asylees

Unfortunately, without extreme policy changes and modernization of the immigration system by congress, the effect of processing delays due to COVID will likely impact all immigration applications for the next decade.

CYA is excited to share news of a positive change to immigration! On November 10, 2021, USCIS entered into a Settlement Agreement as a result of a lawsuit (Shergill, et al. v. Mayorkas) that was filed because of record-long delays in processing EADs (employment authorization documents). As a result of this settlement, USCIS is changing its policy to acknowledge that L-2, E-1, E-2 and E-3 spouses have employment authorization incident to their immigration status. Thus, these spouses will no longer need to apply and be approved for an EAD in order to legally work in the U.S. Woo hoo! This is a welcome change, and USCIS is in the process of implementing this change now.

At present, L-2, E-1, E-2 and E-3 spouses who are now entering the United States from abroad are being issued updated I-94s that make it clear that they are employment authorized. For L-2, E-1, E-2 and E-3 spouses who are already present in the United States, USCIS recently announced that on April 1, 2022 it will begin a process of mailing notices to these individuals. This USCIS notice along with an unexpired Form I-94 will prove employment authorization. For more information on this evolving change in USCIS policy please keep an eye on our CYA blog or reach out to your attorney for a consultation.

The statistics regarding this year’s cap lottery (FY2023) won’t be published for awhile, but USCIS recently shared the data on the FY2022 H-1B cap season. Take a look!

· 308,613: Number of initial registrations received by USCIS

·  87,500: Number of initial registrations selected by USCIS to file petitions

· 131,970: Total number of registrations selected by USCIS after conducting two additional selection rounds

·  37,000: Approximate number of prospective petitioners (employers) who submitted registrations for their beneficiaries (employees)

·  48%: Approximate percentage of registrations that requested consideration under the advanced degree exemption (master’s cap).