Visa Lawyer Blog

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Welcome back to Visalawyerblog! In this blog post we share with you an overview of the State Department’s October 2021 Q&A answer session with Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the U.S. Department of State, also known as “Chats with Charlie,” broadcasted every month on the State Department’s YouTube channel.

This new series features a monthly Question-and-Answer session with Mr. Charles Oppenheim and a Consular officer, where they answer many of the public’s frequently asked questions and provide a monthly analysis of each month’s Visa Bulletin. This discussion will provide details regarding what to expect in terms of the movement or retrogression of both family and employment-based preference categories on each month’s Visa Bulletin.

Questions for Charlie can be emailed in advance to VisaBulletin@state.gov ahead of each monthly session with “Chat with Charlie Question” in the subject line.

Be sure to subscribe to the State Department’s YouTube Channel and turn on your notifications so you do not miss any of these important updates.

Below are the highlights of the visa projections for October 2021.

DOS Q&A Session with Charlie Oppenheim: October 2021 Visa Bulletin Projections & Beyond

The Top 9 Advance Questions Sent in By Listeners

Q: Last month, when describing the National Visa Center’s processing of cases, you mentioned a change in terminology from “documentarily qualified” to “documentarily complete.” Why the change and what’s the difference?

A: Well, the terminology means exactly the same thing. It’s my understanding that in changing it to “complete,” the National Visa Center was trying to make it very clear to the applicant that they had submitted all the required documents, that all those documents have been reviewed by the National Visa Center, and the case is considered to be “complete” and ready for the potential processing at an overseas post when an interview can be scheduled.

Q: In the September Visa Bulletin, the application dates for filing which are listed for China and India EB-3 were July 1, 2019, and March 1, 2014, respectively. But in the October Visa Bulletin, the dates for filing for China and India EB-3 were moved back to January 15, 2019, and January 8, 2014, respectively. Why did you move these two application dates backwards?

A: Each month before I’m making the determination of the final action dates and the application dates, I consult with USCIS officials and their inventory projections show that on October 1, 2021, coming up, the pending demand which both the State Department and USCIS has in the employment third preference category for applicants born in India and China will already exceed the amount of numbers that are available to applicants from those countries throughout fiscal year 2022 in the third preference category. Therefore, for that reason we made the decision to retrogress those application dates for filing to limit new applications, which we did not at the time anticipate could be processed during fiscal year 2022. But it is important to remember that as with the final action dates, we always continue to monitor the situation very carefully and that allows us to determine what if any future action will be required.

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Welcome back to Visalawyerblog! We are happy to bring you the latest immigration updates recently announced by the United States Citizenship and Immigration Services (USCIS).

USCIS Guidance Following DACA Permanent Injunction in State of Texas, et al., v. United States of America, et al., 1:18-CV-00068, (S.D. Texas July 16, 2021)

USCIS has announced on its official webpage that consistent with the permanent injunction granted by the U.S. District Court for the Southern District of Texas on July 16, 2021, declaring DACA policy illegal, USCIS is prohibited from granting initial requests for first time DACA applicants, and accompanying requests for employment authorization.

However, USCIS will continue to accept both initial and renewal DACA requests but will not be able to adjudicate requests for first time DACA applicant’s pursuant to the court order.

Renewal filings for those who have received DACA benefits in the past, will continue unaffected by the court order, and USCIS will continue to adjudicate renewal requests, and accompanying renewal requests for employment authorization as before.

What’s next? The Department of Justice will be appealing the District Court’s decision and the Biden administration is urging Congress to pass the American Dream and Promise Act of 2021.

Read Biden’s Statement responding to the Court’s injunction here.

Applicants Filing Change of Status Applications to F-1 No Longer Need to Submit Subsequent Applications to ‘Bridge the Gap’

We are happy to report that USCIS recently ended the “Bridge the Gap” policy. Previously, prospective students with a current nonimmigrant status in the United States, that was set to expire more than 30 days before their F-1 program start date, were required to “Bridge the Gap,” by filing Form I-539 with USCIS to request an extension of their current status, or a change to another status ensuring that they would not have a “gap” in status.

Effective July 20, 2021, USCIS announced that individuals who have applied for a change of status to F-1 student, will no longer need to “Bridge the Gap,” while their initial F-1 change of status application is pending with USCIS.

To prevent a “gap” in status, USCIS has said that it will now grant the change of status to F-1 effective the day the applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status is approved. If USCIS approves an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time (such as engaging in unauthorized employment, more than 30 days before the program start date as listed on the Form I-20.)

These changes have been introduced to decrease current backlogs and USCIS workloads. A revision of the Form I-539 instructions will soon be published to reflect these new policy changes.

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In today’s blog post, we are happy to bring our readers some very exciting news.

On April 26, 2021, the Department of State formally announced a new National Interest Determination for certain categories of nonimmigrant visa applicants currently unable to enter the United States due to COVID-19 related Regional Presidential Proclamations issued earlier this year. This new determination will allow certain travelers to obtain their visas and enter the United States, despite the issuance of COVID-19 related Regional Presidential Proclamations, known as Presidential Proclamations 9984, 9992, and 10143.

These Proclamations were issued early last year to prevent the rapid spread of COVID-19 to the United States, specifically from China, Iran, Brazil, South Africa, the Schengen countries, the United Kingdom, and Ireland.

Such Proclamations had the effect of restricting and suspending the entry into the United States, of both immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, South Africa, and Iran, during the 14-day period preceding their entry or attempted entry into the United States. Few categories of individuals were exempted from these Presidential Proclamations, including lawful permanent residents of the United States (green card holders), spouses of U.S. Citizens or lawful permanent residents, and others who were similarly exempted.

Individuals who have not been specifically exempted from the Regional Proclamations and have remained physically present in the impacted regions, have been unable to proceed with visa processing. Consulates worldwide have refused to grant visas to these individuals due to the enforcement of the Proclamations.

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Welcome back to Visalawyerblog! It’s a brand-new week and we are excited to share with you a recent update that will benefit F-1 students applying for employment authorization under the Optional Practical Training program (OPT).

Today, April 12, 2021, the United States Citizenship and Immigration Services (USCIS) announced that F-1 students requesting OPT may now file their Form I-765, Application for Employment Authorization, online by creating an online account at myaccount.uscis.gov, instead of having to submit a paper application by mail to USCIS, if they fall under one of the following categories:

  • (c)(3)(A) – Pre-Completion OPT;
  • (c)(3)(B) – Post-Completion OPT; and
  • (c)(3)(C) – 24-Month Extension of OPT for science, technology, engineering and mathematics (STEM) students.

What is Optional Practical Training (OPT)?

Optional Practical Training (OPT) refers to a temporary period of employment that is directly related to an F-1 student’s major area of study.

Eligible F-1 students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion).

Eligible F-1 students who receive STEM degrees may apply for a 24-month extension of their post-completion OPT.

How Can You Qualify for OPT?

All OPT must be directly related to your major area of study. If you are an F-1 student, you may be eligible to participate in OPT in two different ways:

  • Pre-completion OPT:  You may apply to participate in pre-completion OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. You do not need to have had F-1 status for the one full academic year; you can satisfy the “one full academic year” requirement even if you had another nonimmigrant status during that time.

If you are authorized to participate in pre-completion OPT, you may work part time (20 hours or less per week) while school is in session. You may work full time when school is not in session.

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Welcome back to Visalawyerblog! We kick off the start of a brand-new week with some important immigration updates.

USCIS Expands Premium Processing Service to E-3 Petitioners

We are happy to report that beginning February 24, 2021, petitioners filing Form I-129, Petition for a Nonimmigrant Worker, who are requesting a change or extension of status to E-3 classification, will be able to take advantage of premium processing service to expedite processing of their petition. The filing fee for premium processing service for E-3 petitions is $2,500.

What is premium processing?

Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker and I-140 Immigrant Petition for Alien Workers. The main benefit of this service is a guaranteed 15-calendar day processing time for all those who take advantage of it.

When does the 15-calendar period begin?

The 15-calendar day period begins when USCIS properly receives the current version of Form I-907, Request for Premium Processing Service, at the correct filing address noted on the form.

Once the I-907 is received, USCIS either issues an approval notice, denial notice, notice of intent to deny, or request for evidence within the 15-calendar day period.

Is premium processing available for other petitions?

At the moment premium processing service is only available for I-129 and I-140 petitions. However, H.R. 8337 proposed expanding premium processing service to other types of applications in the future including applications to change or extend nonimmigrant status, applications for employment authorization, and other types of benefit requests.

USCIS Introduces Flexibilities for Certain Students Filing Form I-765 for OPT

We are happy to report that on February 26, 2021, USCIS announced new flexibility policies for certain foreign students who have not received receipt notices for Form I-765 petitions for OPT as a result of USCIS delays.

USCIS has stated that the agency has been experiencing delays at certain lockboxes and has not been able to issue receipt notices for certain Form I-765 applications for optional practical training (OPT) for F-1 students in a timely manner.

As a result, USCIS will provide the following flexibilities to assist certain applicants for OPT who have been impacted by the delays.

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nesa-by-makers-IgUR1iX0mqM-unsplash-scaledWe are very happy to announce that yesterday July 14, 2020, the Trump administration backed down and agreed to cancel a new set of federal guidelines that would have required international students to attend classes in-person during the upcoming Fall 2020 semester.

As you may be aware, on Monday July 6th U.S. Immigration and Customs Enforcement (ICE) issued a news release with new modifications that would have applied to international students in the United States, and those awaiting their visas abroad. The announcement prohibited international students from taking courses entirely online during the upcoming semester. It stated that students enrolled in schools with only online instruction would not be issued visas, and CBP would not permit these students to enter the United States. In addition, students already in the United States, who had enrolled in an online program, were given two options, transfer to another school with a hybrid or in person curriculum or depart the United States.

Shortly after these measures were announced, Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) on behalf of all international students affected by the new guidelines. The universities requested an emergency hearing to block the government from enforcing these measures. That hearing was scheduled to take place yesterday morning, but in a surprising turn of events, just before the hearing was getting started, the judge announced that the government had agreed to rescind its policy and would no longer require students to attend in-person classes in order to remain in the country.

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We continue to have good news for international students. As you already know, on July 8th Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit to stop the government from enforcing new guidelines on international students that would prohibit them from taking online classes during the Fall semester, despite increasing coronavirus cases nationwide. The new guidelines announced by the federal Student and Exchange Visitor Program (SEVP) would refuse visas to students in schools that plan to teach classes fully online this fall and would bar these students from entering the country. Students already in the United States enrolled in schools teaching online classes would need to leave the country or transfer to a school with in-person instruction to keep their visas.

Since the Harvard-MIT lawsuit was filed, Northeastern university has joined the fight. In addition, many other universities across the United States have rallied together in support of their students, including the University of California school system, Princeton, Cornell, John Hopkins University, and the University of Pennsylvania. These institutions have filed amicus briefs supporting the Harvard-MIT lawsuit and/or filed lawsuits of their own in district court.

On July 9th Attorney General Xavier Becerra also filed a lawsuit on behalf of the State of California against the Trump administration to stop the government’s new policies from going into effect.

Like the state of California, many more states are expected to file their own lawsuits in the coming week.

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We have news that may be some relief to international students across the United States.

Today, Wednesday, July 8, 2020, Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit in District Court in Boston against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), challenging new guidelines that prohibit international students from taking online classes during the upcoming fall semester.

The lawsuit seeks a temporary restraining order, preliminary, and permanent injunctive relief to bar the Department of Homeland Security and Immigration and Customs Enforcement, from enforcing recent federal guidelines just announced on Monday, that prohibit international students from attending U.S. colleges and universities offering only online instruction during the upcoming Fall 2020 semester.

As our loyal followers know, early this week, Immigration and Customs Enforcement issued a news release introducing a new set of guidelines for international students who will take courses in the U.S. during the upcoming fall semester.

Among the new guidelines, we learned that F-1 and M-1 students will be prohibited from taking courses entirely online during the fall semester. The announcement stated that the Department of State would not issue visas to students enrolled in schools and/or programs operating entirely online, and Customs and Border Protection would not allow such students to enter the United States.

International students in the United States enrolled in schools and/or programs operating entirely online were only given two options (1) depart the United States or (2) take other measures such as transferring to a school with in-person instruction to remain in lawful status.

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Today, Monday, July 6, 2020, the United States Immigration and Customs Enforcement (ICE) issued a news release introducing new modifications taken by the Student and Exchange Visitor Program (SEVP) that will apply to all international students in F-1 and M-1 status taking courses during this upcoming Fall 2020 semester. The U.S. Department of Homeland Security will be publishing new procedures and responsibilities for F-1 and M-1 students during the upcoming Fall 2020 semester in the Federal Register including changes to current policies for F-1 international students.

Monday’s modifications introduce surprising requirements for F-1 and M-1 students taking online classes due to the Coronavirus (COVID-19) pandemic during the fall 2020 semester.

What are these new requirements?

There are three sets of new requirements.

F-1 and M-1 Students Attending Schools with Full Online Instruction During the Upcoming Fall 2020 Semester Must Transfer to In-Person Instruction or Depart the United States

Nonimmigrant F-1 and M-1 students who are attending schools operating entirely online may not take a full online course load and remain in the United States.

The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall 2020 semester nor will U.S. Customs and Border Protection permit these students to enter the United States.

Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status.

If the student fails to transfer to a school with in-person instruction for the fall 2020 semester, the student may face immigration consequences including, but not limited to, the initiation of removal proceedings.

F-1 Students Attending Schools With In-Person Instruction Bound to Existing Regulations – Can Take 3 Credits Online

F-1 students who will attend schools operating under “normal” in-person instruction during the Fall 2020 semester (as opposed to online classes) will be bound by existing federal regulations. Eligible F students are permitted to take a maximum of one class or three credit hours online.

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The Trump administration is setting their sights on a new enemy: students and researchers of the People’s Republic of China. A new presidential proclamation, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” issued on May 29, 2020, will temporarily suspend the entry into the United States of Chinese nationals seeking to enter the United States on an F or J visa to study or conduct research in the United States, except for student seeking to pursue an undergraduate course of study. The proclamation goes into effect at 12:00 pm (ET) today June 1, 2020 and will remain in effect until terminated by the President.  

Specifically, the proclamation limits the People’s Liberation Army’s (PLA) ability to misuse nonimmigrant F student and J researcher visa programs.

Who will be suspended?

F or J Chinese nationals entering to study or conduct research in the United States and who either

  • Currently “receive funding from or who currently is employed by, studies at, or conducts research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’,” or
  • In the past “has been employed by, studied at, or conducted research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy'”

The proclamation defines “military-civil fusion strategy” as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

Section 1 exempts F and J undergraduate students from the proclamation. In addition, graduate students and researchers are also exempt from the proclamation if they do not have any of the specific current or past funding, employment, study, or research nexuses with “an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’.”

Why the Proclamation?

The proclamation was issued to protect the country’s national and economic security from attempts by the People’s Republic of China “to illicitly acquire American technology and intellectual property from our academic institution and research facilities for Chinese military ends.”

According to the Department of State, “[the country’s] concern is with the malign actions of the Chinese Communist Party and specific individuals, not with the Chinese people.” These actions were made as “a direct consequence of PRC government strategies and policies that exploit the access of some of China’s brightest graduate students and researchers, in targeted fields, to divert and steal sensitive technologies and intellectual property from U.S. institutions, taking undue advantage of our [country’s] open and collaborative academic and research environment.”

The U.S. government is particularly concerned that U.S. graduate students and researches will be targeted, co-opted, and exploited by the government of the People’s Republic of China for military gain.

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