Visa Lawyer Blog

Articles Posted in I-485

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Welcome back to Visalawyerblog! We kick off the start of the week with some important updates.

For the past few months, our followers have raised concerns regarding substantial delays they have been experiencing waiting for their receipt notices to arrive in the mail for applications and petitions filed at USCIS lockboxes.

On January 8, 2021, USCIS announced that the agency has indeed been overcome with delays caused by the pandemic and other factors, that has resulted in the delayed issuance of receipt notices for at least some applications and petitions filed at USCIS lockbox facilities.

USCIS lockbox facilities are located in Chicago, Phoenix, Lewisville, and Dallas.

For a list of forms processed at USCIS Lockbox Facilities click here.

What is happening?

Several factors including COVID-19 related restrictions, increases in filings, current postal service volume, and other factors, have caused applicants and petitioners to wait 4-6 weeks on average (after properly filing an application or petition with a USCIS lockbox) to receive a receipt notice in the mail.

USCIS has announced that these delays do not affect the date of receipt of your application. Applicants should be aware that delays vary depending on the type of form submitted and the lockbox location. Cases which are most affected by the delays include non-family based Form I-485 Applications to Register Permanent Residence or Adjust Status, and Form I-765 Applications for Employment Authorization based on eligibility categories relating to F-1 students.

How is USCIS working to improve these delays?

The agency continues to take all necessary COVID-19 related precautions including social distancing and frequent cleaning to prevent the spread of COVID-19.

To help alleviate the workload, USCIS lockbox personnel are working extra hours and redistributing their workload to reduce these delays.

As soon as an application is opened and processed, the agency is printing and mailing receipt notices to the mailing address on file.

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Welcome back to Visalawerblog! In this post, we discuss the newly released visa bulletin for November 2020 which outlines the availability of immigrant visa numbers for family-sponsored and employment-based preference categories.

Impact of April 22nd Presidential Proclamation

As a preliminary matter, we would like to remind our readers that presidential proclamation 10014 signed into law on April 22, 2020, temporarily suspends the entry and issuance of immigrant visas at U.S. Consulates and Embassies worldwide for the following types of immigrants until December 31, 2020.

*Note: Applicants residing in the United States are unaffected by P.P. 10014 and may apply for adjustment of status with USCIS provided their priority date is current on the visa bulletin.

  • Spouses and children of green card holders (US citizens are not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (over 21 years of age) of US citizens applying at the consulate (children under 21 years of age of US citizens are not affected)
  • Sons and daughters (over 21 years of age) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB2 employment based (NIW is not affected) and their family applying at the consulate
  • PERM EB3 employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate

Unfortunately, this proclamation applies to the majority of family-sponsored preference categories which means that U.S. Consulates and Embassies worldwide will not issue visas to these individuals until the visa ban is lifted after December 31, 2020.

It is possible that President Trump may choose to extend the proclamation beyond December 31, 2020 if he finds it necessary. However it is unlikely to remain in effect after Joe Biden becomes President on January 20, 2021.

Suspension of Routine Visa Services Continues

As an additional note, although spouses and minor children of U.S. Citizens applying for immigrant visas at the Consulate are not impacted by P.P. 10014, the majority of Consulates and Embassies nationwide have suspended routine visa services until further notice. Applicants with emergencies or urgent travel needs may request expedited visa processing with the National Visa Center. We strongly encourage applicants to obtain legal assistance to help expedite visa interviews where the applicant can demonstrate extreme hardship to the U.S. Citizen relative.

Other Visa Bans May Apply 

Certain immigrant visa applicants who are not impacted by P.P. 10014, may still be impacted by other presidential proclamations restricting visa issuance and travel to the United States.

For instance, beginning January 2020 the President issues a series of Coronavirus proclamations, which similarly restrict and suspend the entry into the United States, of immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

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Happy Wednesday! Welcome back to Visalawyerblog. In this post, we share some exciting news for beneficiaries of Temporary Protected Status (TPS), who initially entered the country without inspection or admission, but later received TPS, and are now seeking to apply for adjustment of status to lawful permanent residence.

Yesterday, October 27, 2020, a three-judge panel of circuit judges from the U.S. Court of Appeals for the Eighth Circuit, handed down a ruling in the case, Leymis Velasquez, et al v. William P. Barr, et al. This lawsuit was brought by plaintiffs Leymis Carolina Velasquez and Sandra Ortiz – two beneficiaries of Temporary Protected Status who were denied adjustment of status due to their initial unlawful entry into the United States.

The plaintiffs initially filed lawsuits against the United States government in federal district court and lost their cases, because the lower courts held that TPS recipients must be “inspected and admitted” in order to adjust their status to permanent residence. Because these plaintiffs initially entered the country without lawful inspection, they were deemed ineligible for adjustment of status, and their green card applications were subsequently denied by USCIS.

The American Immigration Lawyers Association (AILA) quickly mobilized and filed an appeal before the three-judge panel to settle once and for all the central issue in the case – whether a noncitizen who entered the country without inspection or admission, but later received TPS may adjust his or her status to lawful permanent residence, when the I-485 application requires the noncitizen to have been “inspected and admitted” into the United States.

The three-judge panel ultimately handed a victory to the plaintiffs finding that TPS beneficiaries may adjust their status to lawful permanent residence, despite having initially entered the country without inspection or admission, based on the applicant’s subsequent TPS status.

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We have important new developments to share with our readers regarding the United States Citizenship and Immigration Services (USCIS) planned increase in filing fees for certain applications and petitions, which was set to go into effect beginning October 2nd 2020.

As we previously reported on our blog, in early August USCIS published a final rule in the Federal Register entitled, “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements.” This final rule discussed the agency’s planned increase in filing fees for applications, petitions, or requests filed with USCIS postmarked on or after October 2, 2020.

*For a complete list of the planned increases and petitions affected click here.

According to USCIS, the final rule was intended to ensure that the agency would have enough resources to provide adequate services to applicants and petitioners. The agency stated that after having conducted a review of current fees, the agency determined that they could not cover the full cost of providing adjudication and naturalization services without a fee increase.

This news was not surprising to say the least. Since the emergence of the Coronavirus pandemic, USCIS has been facing an unprecedented financial crisis that has forced the agency to take drastic measures to account for its revenue shortfalls.

Federal Judge Grants Injunction Blocking Increase in Filing Fees

In a surprising turn of events, just days before the final rule was set to go into effect, several organizations filed a lawsuit against the Department of Homeland Security to stop the government from enforcing the final rule. Immigrant Legal Resource Center, et al., v. Chad F. Wolf.

On Tuesday, September 29, 2020, federal judge Jeffrey S. White of the District Court for the Northern District of California, granted the injunction temporarily preventing the government from enforcing the increase in filing fees as planned on October 2nd.

As a result of the court order, USCIS is prohibited from enforcing any part of the final rule while the lawsuit is being litigated in court. While the government is sure to appeal the court’s decision, for now applicants can continue to send their applications and petitions with the current filing fees as posted on the USCIS webpage.

In support of his ruling, judge White reasoned that the plaintiffs were likely to succeed in challenging the final rule because both the previous and current acting secretaries of the Department of Homeland Security (DHS) were unlawfully appointed to their posts and therefore were not authorized to issue the final rule. The judge also agreed that the fee hike would put low income immigrants at a severe disadvantage stating, “Plaintiffs persuasively argue that the public interest would be served by enjoining or staying the effective date of the Final Rule because if it takes effect, it will prevent vulnerable and low-income applicants from applying for immigration benefits, will block access to humanitarian protections, and will expose those populations to further danger.”

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The public charge rule is back. On September 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows the Department of Homeland Security to resume enforcement of the Public Charge Ground of Inadmissibility final rule on a nationwide basis, including in New York, Connecticut, and Vermont.

The court “stayed” or suspended the grant of a preliminary injunction issued on July 29, 2020 by the United States District Court for the Southern District of New York, meaning that the United States Citizenship and Immigration Services (USCIS) can now require Form I-944 in all jurisdictions, and continue to enforce the public charge rule nationwide.

Why the ruling?

The appellate court ruling comes after the Department of Homeland Security appealed the July 29th preliminary injunction preventing the enforcement of the public charge rule to residents of New York, Connecticut, and Vermont. The government asked the court to “stay” or suspend the preliminary injunction, pending resolution of the appeal before the courts.

A three judge panel ruled in favor of the government finding that they were likely to succeed on the merits of the case and in any event the judges said that it was doubtful that the district court had jurisdiction to issue the preliminary injunction in the first place, given that the court of appeals was considering the issues raised by the public charge rule.

What does this mean for applicants?

Pursuant to the appellate court’s order, the United States Citizenship and Immigration Services (USCIS) will resume enforcement and implementation of the Public Charge Grounds Final Rule nationwide. The government is no longer prevented from enforcing the rule during the coronavirus (COVID-19) pandemic.

USCIS has stated on their webpage that they will apply the public charge final rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions. For applications or petitions sent by commercial courier (for example, UPS, FedEx, or DHL), USCIS will use the date on the courier receipt as the postmark date.

USCIS will not re-adjudicate any applications and petitions that were approved following the issuance of the July 29, 2020, injunction continuing until the date of the notice (September 22, 2020).

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elijah-o-donnell-t8T_yUgCKSM-unsplash-scaledA new media report has provided information revealing that the Trump administration is planning to put a temporary “hold” on green card applications filed from the United States.

What is this all about?

As you know earlier this year, the President signed “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” limiting the immigration of aliens outside of the U.S., without an immigrant visa, or official travel document as of April 23rd.

Recent information has surfaced suggesting that the Trump administration seeks to temporarily suspend adjustment of status requests to permanent residence from those living in the United States.

According to a source speaking on condition of anonymity, USCIS has internally told employees that the agency will be temporarily suspending the processing of adjustment of status petitions filed for individuals in the United States, with some exceptions.

What are the exceptions?

Those who fall within the following exceptions will not be impacted by this temporary suspension:

  • Cases already given to the adjudicator (the immigration officer in charging of issuing a decision in your case)
  1. Example: If you had an interview scheduled in April or March and that interview was cancelled because of COVID-19, the suspension does not apply to you
  • Continuations – people who have had their cases continued
  1. Example: Cases that were paused because of COVID, interview rescheduling, etc.
  • Applications filed by medical workers and/or providers
  1. Example: If you are an essential worker fighting COVID-19 you are exempted from the order
  • Cases at the National Benefits Center will not be impacted
  • Very old cases that are currently pending a decision
  • Adjustment of status applications filed on the basis of the Liberian Refugee Immigration Fairness (LRIF)
  • Identified National Security Concerns

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We have very exciting news for our readers. Yesterday, May 27th the United States Citizenship and Immigration Services (USCIS) confirmed that it is preparing to reopen some domestic offices and resume services to the public on or after June 4th.

As you know, on March 18th USCIS made the difficult decision to suspend in-person services at its field offices, asylum offices, and application support centers (ASCs) nationwide to reduce the spread of the Coronavirus. While offices were closed, USCIS continued to provide emergency in-person services.

From the agency’s announcement it is clear that not all domestic offices will reopen to the public by June 4, but we know that at least some will begin to reopen to provide relief to those that have been waiting to attend their interviews or biometrics appointments.

USCIS will be following all state mandated precautions including reducing the number of appointments and interviews scheduled for the day, enforcing social distancing, cleaning and sanitizing facilities, and reducing waiting room occupancy. Members of the public will be required to wear masks covering their nose and mouth. Sanitizer will be provided to the public.

USCIS urges those who are feeling sick to stay home and schedule their appointments once they are feeling better. As a reminder, there is no penalty for rescheduling your appointment if you are sick.

We expect that USCIS will be scheduling far less appointments than usual to reduce the number of people in the facility at any one time. That means that appointment times will be spaced out and there will be a slight delay to reschedule everyone who has been waiting for an appointment. Please be patient and wait to receive a new appointment notice in the mail.

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The government is yet again proposing sweeping changes to current immigration policy, this time targeting Form I-864, Affidavit of Support.

By law, petitioners seeking to immigrate their immediate relative to the United States are required to submit Form I-864 affidavit of support, to ensure to the government that the foreign national will not become a public charge once they have entered the country.

This is true regardless of whether the immigrant is applying for an immigrant visa overseas, or whether the immigrant is adjusting their status to lawful permanent resident in the United States.

The affidavit of support has recently been the subject of intense scrutiny by the Trump administration.

The President has been primarily concerned with alien’s obtaining government benefits that they are not entitled to receive and has sought to enforce a sponsor’s obligations to reimburse the government for any monies paid out to aliens.

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The long-awaited Executive Order temporarily suspending the immigration of certain aliens into the United States has been released.

WHO IS IMPACTED BY THE EXECUTIVE ORDER?

The order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” suspends and limits the entry of the following types of aliens (for a 60-day period) beginning 11:59 p.m. eastern daylight time on April 23, 2020.

Your entry is suspended and limited if all of the following are true:

THREE PART TEST

  • You are an alien outside of the United States on the effective date of the Proclamation (April 23rd)
  • You are an alien that does not have an immigrant visa that is valid on the effective date of the Proclamation (April 23rd) and
  • You are an alien that does not have an official travel document other than a visa on the effective date of the proclamation (April 23rd) or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission
    • Official travel documents include a transportation letter, an appropriate boarding foil, or advance parole document.

ENFORCEMENT

This Proclamation shall be enforced by U.S. Consulates worldwide at their discretion giving them the power to determine whether an immigrant has established his or her eligibility and is otherwise exempted from the Proclamation. The Department of State will implement the proclamation as it applies to immigrant visas, at the discretion of the Secretary of State in consultation with the Secretary of Homeland Security.

The Department of State governs the immigration process outside of the United States, while the Department of Homeland Security governs the immigration process within the United States and guides the United States Citizenship and Immigration Services (USCIS).

WHO IS EXEMPT FROM THE EXECUTIVE ORDER?

The order expressly exempts:

  • Lawful Permanent Residents of the U.S.
  • Aliens who are the spouses of U.S. Citizens
  • Members of the U.S. Armed Forces and any spouse and child of a member of the U.S. Armed Forces
  • Aliens under 21 years of age who are children of United States Citizens and prospective adoptees
  • Aliens seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional
  • Aliens seeking to enter the U.S. to perform medical research or other research intended to combat the spread of COVID-19
  • Any spouse any unmarried child under 21 years of age of any such alien who is accompanying or following to join the alien
  • Any alien applying for a visa pursuant to the EB-5 Immigrant Investor Program
  • Aliens whose entry furthers important United States law enforcement objectives
  • Any alien seeking entry pursuant to a Special Immigrant Visa in the SI or SQ classification, and any spouse and child of any such individual
    • SI: Certain aliens employed by the U.S. Government in Iraq or Afghanistan as translators or interpreters
    • SQ: Certain Iraqis or Afghans employed by or on behalf of the U.S. Government
  • Any alien whose entry would be in the national interest of the United States (national interest waivers)
  • Aliens seeking entry for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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UPDATE: Green card interviews are being waived for at least some applicants during COVID-19

Unprecedented times call for unusual measures. Recently USCIS announced the closure of field offices nationwide—until May 3rd–to help slow the spread of COVID-19.

This announcement was immediately concerning given that green card applicants (family and employment-based) must attend in-person interviews at USCIS field offices to establish green card eligibility before their green cards can be approved.

USCIS indicated in their announcement that all impacted interviews would be rescheduled at a future time when offices re-open to the public. Of course, the decision to reschedule interviews at a future time would create a backlog, delaying the adjudication of thousands of green cards.

As it appears, to avoid a drastic backlog, USCIS is relaxing the green card interview requirement for employment-based green card applicants during the COVID-19 pandemic.

While there is no official policy or memorandum waiving the interview requirement for employment-based green card applicants, USCIS has been doing just that.

We can report that certain employment-based green card applicants who had their interviews canceled as a result of the COVID-19 office closures, have seen their green card “case status” change to “approved” and have received their green cards in the mail shortly thereafter.

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