USCIS Reverts Back to 2008 Naturalization Civics Test

USCIS updated its policy guidance regarding the educational requirements for naturalization to demonstrate a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the U.S. (civics) under INA Sec. 312.

In general, applicants for naturalization must demonstrate a basic understanding of the English language and a knowledge and understanding of civics. USCIS will administer the 2008 civics test to applicants who filed for naturalization before December 1, 2020, or who will file on or after March 1, 2021. USCIS will give applicants the choice to either take the 2008 or 2020 civics test in cases where applicants filed their naturalization application on or after December 1, 2020 and before March 1, 2021, and where the initial examination (interview) is scheduled to occur before April 19, 2021.

USCIS will administer the 2008 civics test to all applicants whose initial examination (interview) is scheduled to occur on or after April 19, 2021 (regardless of filing date).

Department of State rescinds the previous NIE for certain travelers from the Schengen Area, UK, and Ireland

The Secretary of State rescinded the previous national interest determination regarding categories of travelers eligible for exceptions under  Presidential Proclamation 10143 as related to the Schengen Area, United Kingdom, and Ireland. The previous national interest determination covered certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.

The Secretary of State also made a new national interest determination covering certain travelers seeking to provide vital support for critical infrastructure. Travelers in these categories, as well as academics, students, and journalists for whom National Interest Exception (NIE) criteria has not changed, may qualify for NIEs to PP 10143 as related to the Schengen Area, United Kingdom, and Ireland. No previously-issued visas or NIEs will be revoked due to the new policy. Qualified travelers who are applying for or have valid visas or ESTA authorization may travel to the United States following the procedures below even as PP 10143 remains in effect.

Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual NIE to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate; those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for an NIE to travel.

Travelers who wish to visit the United States to offer vital support to critical infrastructure sectors, as well as academics, J-1 students, and journalists who have a valid visa in the appropriate class, an ESTA authorization, or who are seeking to apply for a visa, and believe they may qualify for a National Interest Exception should contact the nearest U.S. embassy or consulate before traveling. If a National Interest Exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

The Department of State also continues to grant NIEs for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security. These travelers and any others who believe their travel to be in the United States national interest should also review the website of the nearest U.S. embassy or consulate for instruction on how to contact them.

Persons in the U.S. on an E, H, L, O, or P visa should not leave the U.S. and travel to Schengen countries unless they understand they may have difficulty re-entering. Any NIE already granted remains valid.  P and E visa categories no longer automatically qualify for NIE. The NIE standard has been changed to a “vital support of critical infrastructure sectors as defined by the Department of Homeland Security or critical infrastructure-linked supply chain” standard that “directly support the creation or retention of U.S. jobs.” Travel must be directly related to supporting the infrastructure.

USCIS Extends Flexibilities to Certain Applicants Filing I-765 for OPT

In recognition that USCIS has been experiencing delays at certain lockboxes in issuing receipt notices for I-765 for Optional Practical Training (OPT) or STEM OPT  for F-1 students, USCIS announced flexibilities for certain foreign students affected by delayed receipt notices for I-765. These flexibilities apply only to applications received on or after October 1, 2020 through May 1, 2021 inclusive.

F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period. To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT. Starting February 26, 2021, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) from their school on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

Presidential Proclamation 10014 immigrant visa ban is rescinded

The suspension of entry imposed in Proclamation 10014 of April 22, 2020 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), as extended by section 1 of Proclamation 10052 of June 22, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), and section 1 of Proclamation 10131 of December 31, 2020 (Suspension of Entry of Immigrants and Nonimmigrants Who Continue To Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak), does not advance the interests of the United States.

Section 1. Revocation. Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131 are revoked.
Sec. 2. Review of Agency Guidance. The Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security shall review any regulations, orders, guidance documents, policies, and any other similar agency actions developed pursuant to Proclamation 10014 and, as appropriate, issue revised guidance consistent with the policy set forth in this proclamation.

Visa Bulletin for March 2021

The Department of State posted the March 2021 Visa Bulletin. USCIS has determined that F2A applicants may file using the Final Action Date. Applicants in all other family-based preference categories must use the Dates for Filing. Applicants in all employment-based preference categories must use the Final Action Date.

U.S. Citizenship Act Legislation (Biden Immigration Reform Bill)

Key points of the bill as applied to employment-based immigration:

  • Increases the number of visas from 140,000 annually to 170,000
  • The 30,000 increase is focused on EB-3, Other Worker Classification
  • Spouses and minor children of employment-based immigrants will be exempted from the 140,000 annual cap, allowing all the slots to be used for employment-based applicants
  • Allowing all foreign students who earn PhD’s in the U.S. to receive green cards via a pilot program that allows cities or counties facing population loss to sponsor immigrants who will relocate there
  • Provides visas to any eligible immigrant who has been waiting 10 years or more because of annual caps and country limits that restrict entry for certain family members, such as adult children or siblings, of U.S. citizens
  • Eliminates employment-based per country limits

A summary of the 353-page legislation follows.

This bill strikes the term “alien” and replaces it with “noncitizen” in federal law. Noncitizen is defined as any person not a citizen or national of the U.S. Sec. 3 (c).

The bill amends the Immigration and Nationality Act (INA) by inserting Sec. 245B, Adjustment of Status of eligible entrants to that of Lawful Prospective Immigrant (LPI) where the Secretary may grant LPI status to a noncitizen who (1) satisfies the eligibility requirements set forth in Sec. 245G(b), including all criminal and national security background checks and the payment of all applicable fees; and (2) submits an application pursuant to procedures under Sec. 245G(b)(1).The requirement of 245B(a) shall not apply to Spouses and Children of a noncitizen who satisfies all requirements of that subsection.

LPI shall remain valid for 6 years, unless revoked, and may be extended for additional 6-year terms if (A) the noncitizen remains eligible for LPI status, (B) has successfully passed the background checks, and (C) such status was not revoked by the Secretary. A noncitizen granted LPI status shall be considered lawfully present while such noncitizens remains in such status, except that the noncitizen (A) is not entitled to premium assistance tax credit authorized under Sec. 36B of the IRC for their health insurance coverage; (B) shall be subject to the rules applicable to individuals not lawfully present that are set forth in subsection (e) of that section; (C) shall be subject to the rules applicable to individuals not lawfully present as set forth in Sec. 1402(e) of the Patient Protection and Affordable Care Act; and (D) shall be subject to the rules applicable to individuals not lawfully present set forth in Sec. 5000A(d)(3) of the Internal Revenue Code.

The LPI shall be eligible for coverage under a qualified health patient consistent with the Patient Protection and Affordable Care Act; be authorized to be employed in the U.S. while in such status; may travel outside the U.S. and be admitted, if otherwise admissible, if the absence does not exceed 180 days in the aggregate, with limited exceptions.

The LPI shall be eligible for a Social Security number and card.

Sec. 1102–Adjustment of Status of LPI

The proposed bill amends the INA by the insertion of a new Sec. 245C where the LPI may adjust status to that of a lawful permanent resident if the LPI (1) satisfies the eligibility requirements set for in Sec. 245G(b), (1) including all criminal and national security background checks and payment of all applicable fees; (3) has been under LPI status for not less than 5 years; (4) remains eligible for such status; (5) has not been continuously absent from the U.S. for more than 180 days in any calendar year while under LPI status;; and (6) has satisfied any applicable federal tax liability.

Sec. 3101–Recapture of Immigrant Visas Lost to Bureaucratic Delay

Family-based immigrants for a fiscal year is increased to 480,000. Employment-based immigrants for a fiscal year is increased to 170,000.

Sec. 3103–Adjustment of Family-Sponsored Per-Country Limits

The INA Sec. 202(a) is amended so that the total number of immigrant visas made available to natives of any single foreign state or dependent area is amended from 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) to 20 percent and 5 percent in any fiscal year.

Sec. 3104–Promoting Family Unity

Repeals the 3-year and 10-year bars for visa overstay. Misrepresentation of citizen by a noncitizen under the age of 21 shall not be considered to be inadmissible or removable under any provision in Sec. 212(a)(6)(C) based on such misrepresentation.

Sec. 3108–Retention of Priority Dates

If the age of the noncitizen is determined to be 21 years or older and the parent of the noncitizen files a family-based petition for such noncitizen, the priority date for such petition shall be the original priority date issued upon receipt of the original family-based or employment-based petition for which either parent was a beneficiary. The priority date for any family-based or employment-based petition shall be the date of filing of the petition, unless the filing of the petition was preceded by the filing of a labor certification with the Department of Labor, in which case that date shall constitute the priority date.  The beneficiary of any petition shall retain their earliest priority date based on any petition filed on his or her behalf that was approvable on the date on which it was filed, regardless of the category of subsequent petitions.

Sec. 3401–Doctoral STEM Graduates from Accredited U.S. Universities

The bill amends the INA by the addition of the following: “Noncitizens who have earned a doctoral degree in the field of science, technology, engineering, or mathematics from an accredited U.S. institution of higher education.”  The term “field of science, technology, engineering, or mathematics” is defined as (A) a field included in the Department of Education’s Classification of Instructional Programs  taxonomy within the summary groups of computer and information sciences and support services, engineering, mathematics and statistics, physical sciences, and the summary group subsets of accounting and related services and taxation; and “may include, at the discretion of the Secretary of Homeland Security, other fields not specifically referred to in subparagraph (A) if the accredited U.S. institution of higher education verifies that the core curriculum for the specific field is primarily based in science, technology, engineering, and mathematics.”

Sec. 3402–Addressing Visa Backlogs

INA Sec. 201(b)(1) is amended by the addition of the following: (H) Noncitizens who are beneficiaries (including derivative beneficiaries) of an approved immigrant petition bearing a priority date that is more than 10 years before the noncitizen’s application for admission as an immigrant or for adjustment of status are not subject to direct numerical limitations. (I)(b) The amendments made by this section shall take effect 60 days after the date of the enactment of this Act.

Sec. 3403–Eliminating Employment-Based Per Country Levels

The bill amends INA Sec. 204 as follows: “If the total number of immigrant visas made available to natives of any single foreign state or dependent area is expected to exceed the numerical limitation specified in Sec. 203(a)(2) of the INA in any fiscal year, immigrant visas to natives of that state or area under Sec. 203(a) shall be allocated (to the extent practicable and otherwise consistent with this section and Sec. 203) so that, except as proved in Sec. 203(a)(4), the proportion of the visa numbers made available under Sec. 203(a)(1)-(4) is equal to the ratio of the total number of visas made available under the respective paragraph to the total number of visas made available under Sec. 203(a).” The amendment shall apply starting Fiscal Year 2022.

Sec. 3404–Increased Immigrant Visas for Other Workers

The additional immigrant visas articulated in Sec. 3101 is allocated to the EB-3 Other Worker Classification, while reducing the percent for EB-1 and EB-2 to 23.55 percent of such worldwide level.

 

 

H-1B FY 2022 Cap Initial Registration Period

USCIS announced that the initial registration period for FY 2022 H-1B cap will open at 12 noon ET on March 9 and run through 12 noon ET on March 25. Prospective petitioners and representatives will be able to fill out and submit their petitioner and beneficiary information registrations. If USCIS receives enough registrations by March 25, the agency will select registrations and send selection notifications via users’ myUSCIS online accounts. An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.

USCIS Reaches FY 2021 H-1B Cap

USCIS announced on 02/16/2021 that the agency received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B U.S. advanced degree exemption (master’s cap) for FY 2021.

Extraordinary Ability (EB-1) and National Interest Aliens (EB-2)

The Immigration and Naturalization Act provides for immigration without labor certification or job offer for certain highly qualified individuals who have been determined to be “aliens of extraordinary ability” or aliens whose immigration is “in the national interest.” These related petition categories require that the applicant prove superior ability in an area that benefits the U.S. and that the benefit to the U.S. be greater than would be typical for an individual in the field. Continue reading

Analysis and Interpretation of H-1B Extension Eligibility Pursuant to Federal Law

News of a potential change in policy related to the American Competitiveness in the 21stCentury Act (AC21) has begun to spread throughout the legal and immigrant communities. Sources claim that the Trump Administration is considering regulatory changes to the policy regarding H-1B extensions beyond the standard 6-year maximum. There certainly are changes to the AC21 regulations that could be made. However, without Congressional approval, the plain language of the statute makes it unlikely that the Administration could completely eliminate the ability of H-1B workers to extend status beyond six years. Continue reading