Immigration News

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).

On March 30, 2022, USCIS published a final rule in the Federal Register that enables USCIS to designate additional types of petitions and applications for premium processing.  The final rule goes into effect on May 31, 2022. USCIS intends to phase in premium processing for these additional forms throughout the rest of FY 2022. USCIS will announce on its official website those requests for which premium processing of designated benefits is available, the dates when such availability commences or ends, and any conditions that may apply.  The final rule also establishes premium processing fees and timelines as follows:

• Form I–140 requesting EB–1 immigrant classification as a multinational executive or manager or EB–2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45 days;

• Form I–539 requesting a change of status to F–1, F–2, J–1, J–2, M–1, or M– 2 nonimmigrant status or a change of status to or extension of stay in E–1, E– 2, E–3, H–4, L–2, O–3, P–4, or R–2 nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and

• Form I–765 requesting employment authorization. Fee: $1,500. Timeframe: 30 days.

Please note that USCIS has not yet indicated when premium processing will be available for each of these form types; nor has USCIS yet determined which I-765 categories will be eligible for premium processing.  Stay tuned for additional information!

This year’s H-1B Cap Registration period closed on Friday, March 18, 2022 at 12pm ET.  On Tuesday, March 29, 2022, USCIS announced that it has received enough electronic registrations during the initial registration period to reach the FY2023 H-1B cap, including the advanced degree exemption. H-1B cap-subject petitions for FY2023 may be filed with USCIS starting April 1, 2022.

Nearly six months after the Taliban seized power of Afghanistan after the withdraw of U.S. troops from the country, DHS announces Temporary Protected Status (TPS) for Afghan nationals. On March 16, 2022, Secretary Mayorkas announced TPS designation for Afghanistan for 18 months. TPS is meant to offer protection to Afghan nationals “who are already living in the United States from returning to unsafe conditions” caused by ongoing armed conflict and extraordinary and temporary conditions.

This designation is also meant to provide added protection to Afghans who have provided aid to U.S. military missions in Afghanistan.  

Additionally, TPS will be available to Afghan nationals who entered the U.S. after the mass exodus from the country and were admitted and paroled into the U.S. for humanitarian reasons. Eligibility will only be available to those who entered the U.S. on or before March 15, 2022. Once approved, applicants will be protected from removal and temporary work authorization. Application instructions will be outlined in the Federal Registrar.

Only one day remaining! The initial registration period (known as the lottery) for the FY2023 H-1B cap season is open, but not for long. The registration period will close at 12:00 noon (Eastern) on Friday, March 18, 2022. Once the registration has closed, USCIS will randomly select registrations from those submitted in the lottery. Registrations will be selected no later than March 31, 2022. The employer and attorney will then have at least 90 days, beginning on April 1, to file a fully prepared H-1B cap-subject petitions for the employee. Registrations not selected in the initial lottery will be put on a waitlist and more registrations may be randomly selected during the fiscal year.

Once the lottery has closed, a registrant’s USCIS online account will show one of the following statuses for each registration:
• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.
• Selected: Selected to file an H-1B cap petition.
• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, disputed, or otherwise invalid.

What to do if you win the lottery with a “selected” registration? For questions or assistance in filing your H-1B petition, schedule a consultation with one of the CYA attorneys today!

USCIS Secretary Mayorkas announced on Friday that the country of Ukraine has been designated for Temporary Protected Status (TPS).  TPS is an immigration benefit that allows citizens of a designated country who are already present in the United States to apply to remain temporarily in the United States due their inability to return to their home country as a result of dangerous conditions such as civil war or natural disaster.  Individuals eligible for TPS may also apply for employment authorization. In this designation, Ukrainians in the U.S. as of March 1, 2022 may apply to continue their stay for up to 18 months.

Secretary Mayorkas explained that “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 . . .  In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.” To learn more about TPS and the application process, please contact us for a consultation.