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USCIS Updates Policy Manual Clarifying Physical Presence Requirement for Asylees and Refugees

The U.S. Citizenship and Immigration Services (USCIS) recently updated its Policy Manual to clarify that BOTH asylees and refugees must have been physically present in the United States for one year at the time the Immigration Officer adjudicates their Form I-485, Application to Register Permanent Residence or Adjust Status, rather than at the time the individual files their adjustment of status application.

This policy is effective immediately and applies to all Form I-485 Applications to Register Permanent Residence or Adjust Status and Form N-400, Applications for Naturalization, that are pending on February 2, 2023, and applications filed on or after that date.

What does this mean?

This means that in order to be eligible for adjustment of status (a green card), an asylee or refugee must have been physically present in the United States for at least 1 year after either being granted asylum status or admitted as a refugee.

Additionally, the policy manual:

  • Provides that asylees and refugees are required to accrue 1 year of physical presence by the time of adjudication of the adjustment of status application, rather than by the time they file the application (and that USCIS may request additional information to determine such physical presence in the United States).
  • Clarifies that asylee and refugee adjustment applicants who have held the immigration status of exchange visitor (J-1 or J-2 nonimmigrants) and who are subject to the 2-year foreign residence requirement under INA 212(e) are not required to comply with or obtain a waiver of such requirement in order to adjust status under INA 209.
  • Makes technical updates, including clarifying processing steps for refugees seeking waivers of inadmissibility and removing references to the obsolete Decision on Application for Status as Permanent Resident (Form I-291).
  • Provides that USCIS considers a refugee or asylee who adjusted status to a permanent resident despite filing for adjustment before accruing 1 year of physical presence to have been lawfully admitted for permanent residence for purposes of naturalization if the applicant satisfied the physical presence requirement at the time of approval of the adjustment of status application.

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The Biden administration is ramping up efforts to secure the Southwest border to curb illegal immigration stemming from the humanitarian and economic crisis in Venezuela.

In a press release issued October 12, 2022, the Biden administration announced that effective immediately, Venezuelans who enter the United States between ports of entry, without authorization, will be returned to Mexico, pursuant to its agreement with the Mexican government.

The U.S. government also announced a new process to efficiently grant admission of up to 24,000 Venezuelans into the country, that mirrors the Uniting for Ukraine program. This effort is designed to encourage lawful and orderly admission to the United States for Venezuelans.

To be eligible for this new program, Venezuelans must:

  • have a supporter in the United States who will provide financial and other support;
  • pass rigorous biometric and biographic national security and public safety screening and vetting; and
  • complete vaccinations and other public health requirements.

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Welcome to the start of a brand-new week. In this blog, we cover new reports from the U.S./Mexico border addressing the growing number of asylum seekers entering the United States from Tijuana into San Diego, through a process known as “humanitarian parole.”

According to a recent report published by the National Institute for Migration in Baja California, in April of 2022, just under 400 migrants were granted permission to cross through Ped West, one of two pedestrian crossings at the San Ysidro Port of Entry.

When compared to crossings in August, that number has skyrocketed to 4,075 migrants entering using their humanitarian parole document.

What is humanitarian parole?

  • Humanitarian parole is a process by which a foreign national (who may be inadmissible or otherwise ineligible for admission into the United States) may enter for a temporary period of time for urgent humanitarian reasons or significant public benefit by filing Form I-131 Application for Travel Document and Form I-134 Affidavit of Support including their supporting documentation.

In addition to those entering with humanitarian parole, the Institute reports that more than 2,500 Haitian refugees have been granted permission to cross into the United States, as well as 440 migrants from Honduras fleeing organized crime.

At the same time, the Institute reports that many migrants in Tijuana are being falsely misled to believe that migrant shelters can help them bypass detention upon requesting asylum at the U.S. border.

Sadly, the Biden administration has not done little to address the growing number of asylum seekers. In fact, the Biden administration has been silently asking the Mexican government to allow for the expulsion of thousands of asylum-seeking migrants from Cuba, Nicaragua, and Venezuela through a little-known policy known as “Title 42.” This expulsion policy began under the Trump administration in March 2020 and has continued under President Biden. Since that time, the Mexican government agreed to accept expulsions of its citizens, along with those of El Salvador, Guatemala, and Honduras totaling more than 2 million migrants.

According to the Washington Office on Latin America (WOLA) the expulsion of migrants from Mexico, El Salvador, Guatemala, and Honduras is near the highest-level seen in over 15 years, but has declined from 2021 (154,000 in July 2021, 104,000 in July 2022). It is estimated that the U.S. government has used Title 42 to expel 78 percent of these migrants.

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This week in immigration news, we share new developments for Afghan nationals. The Biden administration recently announced its plan to launch a new portal that would facilitate the reunification of Afghans immigrants with their family members.

What is it all about?

The U.S. Department of State run portal would provide a place for Afghans in the United States to search for family members who were separated from them following the U.S. withdrawal from Afghanistan last year.

Previously, Afghans needed the help of nonprofit groups such as the United National Refugee Agency (UNHCR) and U.S. Department of State liaisons to help them locate family members left behind. Individuals were required to complete lengthy questionnaires, provide information, and submit documentation that would be independently verified by state department liaisons.

Now, the state-run portal will provide a central location where users can upload information to help locate their family members. Users will be able to enter their own status on the website, and complete forms to enable their relative to gain entry to the United States.

Additionally, the Biden administration is said to be considering waiving the $535 government filing fee associated the filing of Form I-130 Petition for Alien Relative, which allows a U.S. citizen to petition the entry of their relative to the United States.

According to a Department of State spokesperson, through the resettlement effort known as Operation Allies Welcome, immediate family members of Afghans who relocated to the United States are strongly being considered for parole. Immediate relatives of U.S. Citizens, lawful permanent residents, formerly locally employed staff members of the U.S. Embassy in Kabul, and certain Special Immigrant Visa (SIV) applicants are also being prioritized to receive parole.

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Welcome back to Visalawyerblog. We kick off the start of a brand-new week with unfortunate news for asylum-based applicants for I-765 employment authorization.

New data from the U.S. Citizenship and Immigration Services (USCIS) indicates that the agency has been woefully inadequate at processing work permits, failing to meet the 30-day required processing time for employment authorization cards, also known as EADs, filed by asylum seekers.

By law, USCIS must process work permits (EADs) within 30 days of receipt of an asylum seekers I-765 application for employment authorization. However new data shows that USCIS has not been meeting this required timeline throughout 2022, and processing has been declining to a record low.

Data released by USCIS, as part of ongoing litigation, shows that during the last three weeks of February 2022, 93 percent of I-765 applications had been pending for at least 30 days. In March 2022, this figure plummeted to just 68 percent of I-765’s being processed within the 30 days.  Sadly, in recent months, the data shows that processing of EADs has been getting worse and worse on a monthly basis. For instance, in April of this year, this figure dropped to 41 percent of I-765 applications being processed within 30 days. In May the drop continued to just 21 percent, and in June to just 6 percent. Finally, this past month of July, the agency processed less than 5 percent of EAD applications within the required 30-day window. This trend puts on full display the asylum visa processing crisis with no end in sight.

The drop in EAD processing coincides directly with a court ruling handed down in February. USCIS appears to be clearing out the backlog by first processing work permit applications pending the longest, creating substantial delays for more recent applications for employment authorization.

The data indicates that the vast majority of applications USCIS processed over the past three months had been pending for more than 120 days (nearly 4 months).

Due to the EAD processing crisis, USCIS now faces a backlog of more than 77,000 pending work permit requests received by the agency within the past three months alone.

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It is not every day that one of our very own paralegals is honored for her work in immigration law, helping provide a voice to those who do not speak the English language. It is with great pride that we celebrate Kely Martell, for her recent feature in the American Bar Association’s Commission on Immigration (COI), profiling her work as an interpreter volunteer.

Ms. Kely Martell works as a case manager in the business department of our law office, but what you may not know is that for the past year and a half, she has also been dedicating her time as a volunteer Spanish language interpreter and translator for the Immigration Justice Project (IJP). There, she has been working closely with attorneys on pro bono defensive asylum cases, helping reduce barriers to justice for the most vulnerable members of our society.

Growing up in Lima, Peru, Kely immigrated to the United States at a young age with no knowledge of the English language. These struggles shaped her early interest in immigration law and her desire to make a difference in the lives of others. At the height of the asylum crisis when thousands of migrant caravans made their way to the United States, Kely was inspired to action and decided to volunteer as an interpreter for several immigration organizations. She immediately made a positive impression for going beyond what was expected of her, not only helping clients understand their legal rights, but also helping clients and their families navigate the complex intricacies of the immigrant detention system. She displayed an extraordinary commitment to handling these complexities with ease.

Kely first became involved with the ABA’s Immigration Justice Project after reaching out to Senior Staff Attorney and Pro Bono Coordinator Ambreen Walji and the rest was history. She describes her experience working for the Immigration Justice Project as being truly rewarding because of the opportunity she has helping detained immigrants on a day-to-day basis, which are some of the most underserved individuals that are most in need of translator services. Continue reading

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In this blog post, we share with you the latest immigration updates from the U.S. Citizenship and Immigration Services.

I-589 Application for Asylum and Withholding of Removal Receipt Notice Delays

More blunders are being made at USCIS service centers. On July 28, USCIS announced delays in the issuance of receipt notices for Form I-589, Applications for Asylum and for Withholding of Removal, stating that applicants may not receive their notices in a timely manner.

With respect to the 1-year filing deadline for asylum, the filing date will still be the date that USCIS received your properly filed Form I-589 (not the date it was processed).

Applications that were not properly filed will be rejected and deficiencies will be noted in the filing. USCIS reminds applicants that if they have not received their receipt notices in a timely manner, they should not submit multiple Forms I-589, as it will result in case delays.

USCIS has provided the following reminders to help applicants determine whether their form I-589 was properly filed to prevent further delays:

  • You must submit your application for asylum within one year of arriving in the United States (one-year filing deadline), unless you can establish that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year.
  • You must type or print all of your answers in black ink.
  • You must provide the specific information requested about you and your family and answer all the questions on the form. If any question does not apply to you or you do not know the information requested, answer “none,” “not applicable,” or “unknown.”
  • If you file your application with missing information, we may return it to you as incomplete.

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In this blog post, we close out the week with some important information for Afghani nationals seeking to apply for Temporary Protected Status under the TPS designation for Afghanistan. On Thursday, June 16, 2022, from 2 to 3 pm (ET) USCIS will be hosting a public engagement session discussing the TPS requirements for Afghanistan and answering your questions.

What will be discussed?

On March 16, 2022, the Secretary of Homeland Security announced the designation of TPS for Afghanistan for 18 months. This designation of TPS for Afghanistan allows nationals of Afghanistan and individuals having no nationality who last habitually resided in Afghanistan, who have continuously resided in the U.S. since March 15, 2022, to file initial applications for TPS.

The USCIS public engagement session will provide a general overview of the designation of TPS for Afghanistan and following the information session a question-and-answer session will take place.

While USCIS cannot answer case-specific questions, general questions about eligibility can be asked during the information session.

When will the session take place?

Thursday June 16, 2022, from 2-3 pm ET.

How can you register?

To register visit the registration page here.

  • You will be asked to sign up for updates or to access subscriber preferences, please enter your email address and select “Submit”
  • Select “Subscriber Preferences”
  • Select the “Questions” tab
  • Complete the questions and select “Submit.”

Once your registration is processed, you will receive a confirmation email with the details.

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This week brings positive immigration news indeed. We are happy to report that the United States Citizenship and Immigration Service (USCIS) has updated its policy guidelines regarding validity periods for Employment Authorization Documents (EADs) for asylees and refugees, noncitizens with withholding of deportation or removal, noncitizens with deferred action, parolees, and Violence Against Women Act (VAWA) self-petitioners.

What is the new policy all about?

In the new policy alert, USCIS points out that under current guidelines the agency has been issuing initial and renewal Employment Authorization Documents (EADs) with a 1-year validity period, to asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners.

Furthermore, in at least some cases involving deferred action or parolees, initial and renewal EADs are being issued for an even shorter duration, than that of the underlying deferred action or parole period, forcing applicants to file multiple applications for Employment Authorization to prevent employment gaps to cover their entire period of deferred action or parole.

The government is now recognizing its incredible inefficiency and is changing its policy to align with the Biden administration’s agenda. The USCIS policy manual has now been revised to state that initial and renewal EADs may be issued with a maximum validity period of up to 2 years for asylees and refugees, noncitizens with withholding of deportation or removal, and VAWA self-petitioners. For deferred action and parolee applicants, USCIS will now issue EADs up to the end of the authorized deferred action or parole period for individuals seeking an EAD in these filing categories.

Please note that replacement EADs will not be affected by this policy change.  USCIS will continue to issue replacement EADs with the same validity date as the original EAD.

When is this new policy effective?

The updated policy guidance, contained in Volume 10, Part A of the USCIS Policy Manual, is effective as of today Monday, February 7, 2022.

Accordingly, USCIS will immediately apply the updated validity period guidelines to EADs issued for impacted categories on or after February 7, 2022.

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Happy Thursday! We are back with a brand-new blog post. Today, we continue discussing President Biden’s recent executive actions on immigration. This time we are breaking down Executive Order entitled, “the Establishment of the Interagency Task Force on the Reunification of Families.”

So, what exactly does this executive order mean for you and your family?

This new executive order will prioritize the reunification of children who have been separated from their family members at the United States/Mexico border by establishing an Interagency Task Force on the Reunification of Families.

The heads of several agencies including the Secretary of Homeland Security, Secretary of State, and others will take part in the Task Force and perform the following functions:

  • Identify all children who have been separated from their families at the border between January 20, 2017, and January 20, 2021 Continue reading