USCIS to Implement 2nd Phase of Premium Processing Expansion for Certain Previously Filed EB-1 and EB-2 Petitions

USCIS announced that, beginning August 1, 2022, the agency will accept premium processing requests for pending I-140s under EB-1C if received on or before July 1, 2021, and under EB-2 classification as a member of professions with advanced degrees or exceptional ability seeking national interest waiver if received on or before August 1, 2021.

Department of State Prioritizes Immigrant Visa Applications

The Department of State announced on April 30, 2021 that U.S. embassies and consulates are using a Tiered approach to triage immigrant visa applications to address the backlog in the process of immigrant visas. The four priority tiers include:

-Tier 1: Immediate relative intercountry adoption visas, age-out cases (where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)

-Tier 2: Immediate relative visas, fiance(e) visas, and returning resident visas

-Tier 3: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad

-Tier 4: All other immigrant visas, including employment preferences and diversity visas

Many embassies and consulates continue to have a significant backlog of all categories of immigrant visas. The prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiance(e) cases as possible. The prioritization plan also instructs posts to schedule and adjudicate some cases in Tier 3 and 4 per month. Department of State recognizes that Tier 3 and 4 visa applicants will face continued delays. As a result of COVID the number of visas issued in the lower-priority preference categories or in such programs as the diversity visa program likely will not approach the statutory ceiling in FY 2021.

Presidential Proclamation Suspending Entry as Non-immigrants of Certain Individuals Present in India Who Post Risk of Transmitting COVID-19

In recognition of the worsening crisis situation in India, President Biden issued a proclamation suspending the entry into the U.S., as non-immigrants, of certain individuals who were physically present in India during the 14-day period preceding their entry or attempted entry. The proclamation is effective at 12:01am on May 4, 2021. The suspension of entry shall not apply to

-any lawful permanent resident of the U.S.

-any noncitizen national of the U.S.

-any noncitizen spouse of a U.S. citizen or lawful permanent resident

-any noncitizen parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21

-any noncitizen who is the child of a U.S. citizen or lawful permanent resident

-any noncitizen traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the COVID-19

-any noncitizen traveling as a nonimmigrant with a C-1, D or C-1/D visa

-any noncitizen

* seeking entry into or transiting the U.S. under an A-1, A-2, C-2, C-3, E-1, G-1 through G-4, NATO-1 through NATO-6 visa

* who is a member of the U.S. Armed Forces or is the spouse/child of a member of the U.S. Armed Forces

* whose entry would be in the national interest, as determined by the Secretary of State, Homeland Security, or their respective designees

USCIS Will Suspend Biometrics Requirements for Certain I-539 Applicants for a 2-Year Period starting May 17, 2021

USCIS announced that it will suspend biometrics requirements for certain I-539 applicants for a 2-year period starting on May 17, 2021. The biometrics suspension will apply to H-4, L-2, and E-1, E-2 and E-3 categories if

-they were pending on May 17, 2021 and have not received a biometrics appointment notice; and

-new applications received by USCIS from May 17, 2021 through May 17, 2023

subject to affirmative extension or revocation by the USCIS Director. USCIS will retain discretion on a case-by-case basis to require biometrics.

USCIS Issuing Policy Guidance Giving Deference to Previous Decisions

USCIS has issued policy guidance instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts, unless there was a material error, material change, or new material facts.

With this update, USCIS is reverting in substance to prior long-standing guidance issued in 2004, which directed officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same parties and facts as the initial petition or application. This update is in accordance with Pres. Biden’s executive order, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.

USCIS Implements Decision Vacating Public Charge Final Rule

USCIS stopped applying the Public Charge Final Rule to all pending applications and petitions on March 9, 2021. USCIS is applying the 1999 Interim Field Guidance to the adjudication of any application for adjustment of status that was pending or received on or after March 9, 2021. The 1999 guidance was in place before the Public Charge Final Rule was implemented. In addition, USCIS will no longer apply the separate, but related, public benefits condition to applications and petitions for extension of nonimmigrant stay and change of nonimmigrant status.

The House of Representatives passes the Dream and Promise Act of 2021

The House of Representatives passed the Dream and Promise Act. This legislation would grant Dreamers conditional permanent resident status for 10 years, and cancel removal proceedings if they:

  • have been continuously physically present in the U.S. on or before January 1, 2021;
  • were 18 years old or younger on the initial date of entry into the U.S.;
  • are not inadmissible on the following grounds: criminal, security and terrorism, smuggling, student visa abuse, ineligibility for citizenship, polygamy, international child abduction, unlawful voting, or former citizens who renounced citizenship to avoid taxation, and have not participated in persecution;
  • other than a state offense for which an essential element is the person’s immigration status or a minor traffic violation, have not been convicted of (i) any federal or state offense punishable by a term of imprisonment of more than 1 year; (ii) 3 or more federal or state offenses for which the person was convicted on different dates and imprisoned for an aggregate of 90 days or more; (iii) a crime of domestic violence (unless the applicant is a victim themselves of domestic violence, sexual assault, stalking, child abuse or neglect, elder abuse or neglect, or human trafficking, having been battered or subjected to extreme cruelty, or having been a victim of criminal activity);
  • graduate from high school, obtain a GED or industry recognized credential, or are in a program assisting students in obtaining a high school diploma, GED or equivalent exam, or in an apprenticeship program;
  • pass security and law enforcement background checks, pay a reasonable application fee and register for the Selective Service if required.
  • Additionally, children of certain temporary workers who arrived in the U.S. at the age of 18 or younger and were continuously present in the U.S. since January 1, 2021 are also eligible for relief.

In order to gain full lawful permanent resident status, Dreamers must

  • acquire a degree from a U.S. institution of higher education; or complete at least 2 years in good standing in a bachelor’s or higher degree program or in an area career and technical education program at a post-secondary level in the U.S.; or
  • complete at least 2 years of military service, and if discharged, received an honorable discharge; or
  • be employed for periods of time totaling at least 3 years and at least 75% of the time that the person has had employment authorization.

The Dream and Promise Act would grant individuals with Temporary Protected Status (TPS) or Deferred Enforced Departure (DED) LPR status and cancel removal proceedings if they:

  • have been in the U.S. for a period of 3 years before the Act’s enactment; and
  • were eligible or had TPS on September 17, 2017 or had DED status as of January 20, 2021.

This legislation sets forth a number of other provisions that protect Dreamers and individuals with TPS or DED during their application for relief.

DHS will no longer pursue litigation related to implementation of the Public Charge Ground of Inadmissibility

Pursuant to Executive Order 14012 directing the Secretary of Homeland Security to review the actions of DHS related to the implementation of the public charge ground of inadmissibility, DHS has determined that continuing the defend the final rule (Inadmissibility on Public Charge Grounds, aka “2019 Rule”) is neither in the public interest nor an efficient use of limited government resources. As such, the Department of Justice will no longer pursue litigation of judicial decisions invalidating or enjoining enforcement of the 2019 Rule.

Once the previously entered judicial invalidation of the 2019 Rule becomes final, the 1999 interim field guidance on the public charge inadmissibility provision will apply (e.g., the policy that was in place prior to the 2019 Rule). Under the 1999 interim field guidance, DHS will not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination. In addition, medical treatment or preventive services for COVID-19, including vaccines, will not be considered for public charge purposes.

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.