Visa Lawyer Blog

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Welcome back to Visalawyerblog! We kick off the start of a brand-new week with some long awaited and very happy news for EB-5 immigrant visa investors wishing to participate in the Regional Center program.

As you may know, the EB-5 Regional Center Program is a statutorily authorized program that must be extended by Congress in order to operate. Unfortunately, for months on end, members of Congress failed to pass a bill to reauthorize the Regional Center program leaving thousands of prospective applicants in limbo, and those waiting to file green cards with big worries. Following the program’s expiration at midnight on June 30, 2021, it remained in a period of lapse amid negotiations within Congress for a new government appropriations funding bill to be passed to extend the program.

As luck would have it on March 10, 2022, Congress reauthorized the EB-5 Regional Center Program through fiscal year 2027 in appropriations legislation passed by the government. While this is a big relief for many would-be Regional Center investors, the new legislation has also introduced some important changes to the program.

The EB-5 Reform and Integrity Act of 2022, as it is called has resurrected the EB-5 Regional Center Program until September 30, 2027, but introduces some new increases in the minimum EB-5 investments.

Once enacted, the new law will increase the new minimum investment amount to $1,050,000 for standard EB-5 investments (from the previous minimum investment of $1,000,000); $800,000 for investments in Targeted Employment Areas (TEAs) (from the previous $500,000 investment); and $800,000 for minimum investment for infrastructure projects. New changes also allocate a portion of the EB-5 immigrant visa quota to investments in rural areas, high unemployment areas, and infrastructure projects.

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We are happy to start this week with interesting new developments in the world of immigration law.

As some of our readers may be aware, all green card applicants filing Form I-485 Application to Register Permanent Residence or Adjust Status, are given the opportunity to file the Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document, along with their green card application (or separately at a later time), in order to receive what has been commonly referred to as an employment authorization document (EAD) and advance parole (AP) “combo” card.

With this “combo” card, green card applicants have engaged in lawful employment inside of the United States, and cards with the notation ‘Serves as I-512 Advance Parole’ have been used to re-enter the U.S. after temporary foreign travel.

That is all about to change. USCIS has announced that in an effort to drastically reduce the processing times associated with EAD and AP documents, the agency will now be discontinuing its policy of issuing the “combo” card.

Going forward, U.S. Citizenship and Immigration Services will be separating the issuance of the employment authorization document (EAD card) and advance parole (AP) document. This means that green card applicants that file the Forms I-765 and I-131 together with their green card (or at a later time) can expect to receive two separate documents in the mail, instead of one single combo card.

EADs that do not have the notation ‘Serves as I-512 Advance Parole,’ can only be used for employment purposes. Green card applicants wishing to return to the U.S. after temporary foreign travel must have a valid Advance Parole document. Applicants should not engage in international travel without such document.

Substantial Backlogs

USCIS has made this change to help alleviate the substantial processing times of EAD and AP documents during the Coronavirus pandemic. Unfortunately, these delays have caused employment interruptions for thousands of applicants who have had to wait many months for these applications to be approved.

Presently, the Nebraska Service Center is currently reporting processing times of between 11.5 to 13.5 months for an EAD to be issued based on a pending adjustment of status application. While the California Service Center is currently reporting a wait period of between 20 months to 21.5 months.

This lengthy waiting period has prompted USCIS to take action to separate issuance of the EAD and AP, in what will hopefully result in faster processing times.

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In the blog post we share some exciting H-1B news! While the FY 2023 H-1B season is about to get underway, today February 28, 2022, USCIS announced that it has received enough petitions to reach the fiscal year 2022 cap that began last March, including the advanced degree exemption.

USCIS has sent non-selection notifications to registrants’ USCIS online accounts. If you were not selected in the FY 2022 cap the following status will be shown in your online account:

  • Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

The agency will continue to accept and process cap-exempt petitions including petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in additional H-1B positions.

If you were not selected in the H-1B fiscal year 2022, there is still good news. The H-1B fiscal year 2023 season is just about to begin, and you may have a shot at being selected.

Those who wish to apply for the H-1B FY 2023 cap must submit an electronic registration on the USCIS website.

The H-1B initial registration period for the FY 2023 cap is scheduled to open tomorrow at noon ET, March 1, 2022 and the registration period will remain open until noon ET on March 18, 2022.

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Today, Americans woke up to the tragic news of Russia’s targeted attack on Ukraine, adding to increased anxieties surrounding the already uncertain global climate during the COVID-19 pandemic.

To provide some relief in these unprecedented circumstances, the U.S. government and Centers for Disease Control (CDC) have amended their regulations to determine that it is in the national interest to permit the entry of Ukrainian noncitizen nonimmigrants who (1) are traveling with a U.S. citizen or lawful permanent resident; (2) were physically present in Ukraine as of February 10, 2022; and (3) possess valid travel documents allowing them to travel to the United States.

For their part, the CDC has announced that, based on a request from the U.S. Department of State and consistent with the determination made by the Secretary of Homeland Security, it will exercise its enforcement discretion regarding certain aspects of its “Amended Order: Requirement for Proof of Negative COVID-19 Test Result or Recovery from COVID-19 for All Airline Passengers Arriving into the United States,” and its “Amended Order Implementing Presidential Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic pdf icon[PDF – 52 pages],” effective immediately.

What does this mean?

The CDC will exercise enforcement discretion effectively immediately for the following groups of individuals, to the extent they were physically present in Ukraine as of February 10, 2022:

U.S. citizens; lawful permanent residents; noncitizens in possession of a valid U.S. immigrant visa; as well as noncitizen nonimmigrants who are traveling with a U.S. citizen or lawful permanent resident and possess valid travel documents allowing them to travel to the United States, known as “covered persons.”

Pursuant to this exercise of enforcement discretion, covered persons will not be required to provide proof of a negative COVID-19 test result prior to boarding a flight to the United States or to complete the attestation at Section 1 of the Combined Passenger Disclosure and Attestation to the United States of America pdf icon[PDF – 7 pages] form.

CDC is requesting that all air carriers cooperate in this exercise of enforcement discretion. Noncitizen nonimmigrants must continue to complete Section 2 of the Combined Passenger Disclosure and Attestation to the United States of America pdf icon[PDF – 7 pages] form attesting to either being fully vaccinated and providing proof of being fully vaccinated against COVID-19 or, if traveling pursuant to an exception, including a national interest exception, that they have made arrangements to receive a COVID-19 test within three to five days of arrival in the United States, to self-quarantine for seven days, to self-isolate in the event of a positive COVID-19 test or the development of COVID-19 symptoms, and to become fully vaccinated for COVID-19 within 60 days of arrival in the United States if intending to stay in the United States for more than 60 days.

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In today’s blog post, we share some interesting Question and Answer responses recently provided by the Department of State’s Office of the Assistant Legal Adviser for Consular Affairs (L/CA), in a meeting with the American Immigration Lawyers Association (AILA).

The responses below provide some important insight into current immigration policies and procedures taking place amid the ongoing COVID-19 pandemic.

Here, we summarize the most interesting questions covered during the January 20 meeting:

Department of State/AILA Liaison Committee Meeting

January 20, 2022 Q & A Highlights

Q: What role do Consular sections assume when determining whether an individual is exempt from the CDC COVID-19 vaccine requirement to gain entry to the U.S.?

A: Consular sections’ role in the process is to ensure that an individual’s request for a [vaccine] exception is filled out in full, and to transmit those requests to the CDC.

Q: If consular posts are involved in transmitting information in support of a humanitarian exception to CDC, what is the process, if any, for making such a request of a consular post outside the context of a visa interview?

A: Travelers should contact the consular section of the nearest embassy or consulate using the information provided on that embassies or consulate’s website

Q: What is the Department of State doing to alleviate the substantial backlogs created by the slowdown of operations at Consular posts and Embassies worldwide?

A: The Department is planning to hire foreign service officers above attrition in FY 2022. The majority will be assigned to a consular position after initial training. Additionally, the Department continues to recruit Limited Non-career Appointment (LNA) Consular Professionals. With very limited LNA hiring in FY 2020 and a pause on LNA hiring in FY 2021 due to CA’s budgetary constraints, Consular Affairs plans to hire more than 60 LNAs in FY 2022

Consular Affairs is working with State’s office of Global Talent Management to ramp up hiring in FY 2022, but many posts will not see these new officers until the second half of FY 2022 or FY 2023, particularly for officers assigned to positions requiring language training. Increased hiring will not have an immediate effect on reducing current visa wait times. Because local pandemic restrictions continue to impact a significant number of our overseas posts, extra staff alone is not sufficient to combat wait times for interviews.

Q: Can Consular Affairs please advise regarding efforts to resume routine consular services?

A: Consular sections abroad must exercise prudence given COVID’s continuing unpredictability. The emergence of the Omicron variant has prompted countries to reevaluate plans to relax travel bans, thereby leading consular sections abroad to recalibrate plans to resume services. Some posts have already fully resumed routine services. Others, in an abundance of caution and out of concern for the health of both consular staff and clientele, are slowly reintroducing some routine services.

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We are happy for you to join us today. In this blog post we share some new updates in the world of immigration law for Diversity Visa Program selectees.

The Department of State has just released important procedures for Diversity Visa Applicants selected in the 2022 DV program with cases assigned to the U.S. Embassy in Kabul or Baghdad.

The agency is asking all such DV selectees to contact the Embassy in Kabul or Baghdad to request reassignment of their cases to another Embassy or Consulate processing immigrant visa applications abroad. Under the law, cases can be transferred to another Consular post (provided the alternate Consular post will accept them) however applicants must be physically present in the Consular district where the Embassy or Consulate is located at the time of their interview, and have permission to remain in the country by the host government for a period sufficient to complete the processing of their visa application.

Applicants may wish to contact a Congressman for assistance with the transfer of their case. Applicants should also be aware that they should first contact the alternate Embassy to confirm whether their case can be processed there. Each Consular post may have their own rules and regulations governing the DV application process.

What is the procedure for my case to be reassigned?

Under new guidance released by the Department of State, DV 2022 selectees can request reassignment by emailing KCC (Kentucky Consular Center) at KCCDV@state.gov with the subject line “Kabul/Baghdad Reassignment Request.”

To process your request, your email should include the following information:  (1)  full name, (2)  date of birth, (3) case number, and (4) the name of the embassy or consulate where you would like your case to be reassigned.  After KCC reviews your request, you will receive an email confirmation that your reassignment request was successful or, alternatively, requesting more information.  According to KCC, all emails will be reviewed in the order they are received.

When will my reassigned case be scheduled for an immigrant visa interview?

DOS guidance informs DV applicants that reassignment of their case to another embassy or consulate does not mean that it will be automatically scheduled for an immigrant visa interview.  Instead, interviews will be scheduled after the DS-260 immigrant visa application has been fully processed, your case number is current according to the Visa Bulletin, and when the reassigned embassy or consulate has an interview appointment available.

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Welcome back to Visalawyerblog! In this post, we share with you an exciting new update from the United States Citizenship and Immigration Services (USCIS) that will provide relief to those who have received a Request for Evidence, Notice of Intent to Deny (NOID), or such similar request.

USCIS RFE/NOID Flexibility Continued for Responses to Agency Requests

USCIS has announced that it will continue its flexibility policy giving applicants and petitioners more time to respond to Requests for Evidence during the COVID-19 pandemic and such related requests.

Today, Thursday December 30, 2021, USCIS made the announcement stating it will continue to give applicants who have received a request for evidence, notice of intent to deny, or such a related document, an additional 60 calendar days after the response deadline indicated on the notice or request, to submit a response to a request or notice, provided the request or notice was issued by USCIS between March 1, 2020 through March 26, 2022. 

This is great news because it will allow applicants and petitioners more time to gather documents that are hard to obtain during the COVID-10 pandemic.

What documents qualify for this flexibility in responding?

Applicants who receive any of the below mentioned documents dated between March 1, 2020 and March 26, 2022 can take advantage of the additional 60 calendar days to respond to the request or notice:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind;
  • Notices of Intent to Terminate regional investment centers; and
  • Motions to Reopen an N-400 pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.

In addition, USCIS will consider a Form I-290B, Notice of Appeal or Motion or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings, if:

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Breaking news! The Department of State has published a final rule in the Federal Register announcing a new temporary final rule that grants consular officers flexibility to waive the personal appearance of certain “replacement” immigrant visa applicants who were approved for an immigrant visa in the same classification and on the same basis as the current application on or after August 4, 2019.

Under this new policy, consular officers will have the discretion to allow this subset of immigrant visa applicants to affirm the accuracy of the contents of their DS-260 application without appearing for an in-person interview before a consular officer. The temporary final rule is effective immediately and will expire after 24 months on December 13, 2023.

Who does the new temporary rule apply to?

This temporary final rule for a discretionary waiver of personal appearance and interview applies to immigrant visa applicants who were issued a U.S. immigrant visa on or after August 4, 2019, and meet the following additional criteria:

  • the applicant must be seeking an immigrant visa in the same classification (or another classification as the result of automatic conversion due to the death or naturalization of the petitioner of the previously issued immigrant visa)
  • the applicant seeks and remains qualified for an immigrant visa pursuant to the same approved petition as their previously approved application, and
  • they must continue to qualify for the immigrant visa sought.

Interview Waivers

Under this temporary final rule, the personal appearance and interview of certain applicants for an immigrant visa may be waived in the discretion of the consular officer, provided that the applicant is willing to affirm under penalty of perjury to the information provided on their Online Immigrant Visa and Alien Registration Application, known as Form DS-260.

The consular officer may decide to either (1) communicate with the applicant by telephone or email, (2) request that the applicant provide additional information that the consular officer deems necessary, or (3) may request the applicant to appear in person.

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The bad news continues for the EB-5 Immigrant Investor Regional Center Program. As our readers will know, the EB-5 Regional Center program has been in a period of lapse following Congressional failure to reauthorize the program after its expiration at midnight on June 30, 2021. Such reauthorization was expected to be included in the government’s appropriations funding bills, but no such action has yet taken place to extend the program.

In a glimmer of hope, on December 3, 2021, President Biden signed H.R. 6119 into law, “Further Extending Government Funding Act” which includes a short-term continuing resolution that funds the federal government through February 18, 2022. EB-5 Regional Center legislation extending the program is expected to be included in future appropriation bills.

With its hands tied on the matter, on October 4, 2021, USCIS updated its website to indicate that it would not be accepting new I-526 petitions based on a regional center investment, but would be placing all pending I-526 petitions based on the Regional Center program in “abeyance,” (a temporary hold), as well as placing all pending I-485 green card applications based on a Regional Center investment on hold at least through the end of 2021, pending further action from Congress. No acting is being taken on applications placed on hold.

I-829 Petitions filed by conditional permanent residents under the Regional Center program remain unaffected. USCIS has confirmed that such applications are being accepted and processed by the agency.

Acting upon the government lapse, for its part, the Department of State has stopped processing immigrant visa applications for EB-5 Program applicants altogether.

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Welcome back to Visalawyerblog! We hope that you had a restful Thanksgiving holiday break with your friends and family members.

In this blog post, we share with you some unfortunate new developments relating to the ongoing Coronavirus pandemic that will restrict the entry of foreign nationals from certain countries to the United States.

Just as the United States was beginning to ease restrictions on international air travel for the fully vaccinated starting November 8th, the world has once again been thrown into turmoil as a new Coronavirus variant known as “omicron” has been revealed with new cases emerging throughout Europe, Australia, South Africa, and the Netherlands.

President Biden Signs New Travel Ban Proclamation Amid Omicron Variant impacting South Africa, Botswana, Zimbabwe, Namibia, Lesotho, Eswatini, Mozambique, and Malawi

President Biden and his Chief Medical Adviser were briefed on the unfolding situation, and on Friday, November 26, 2021, President Biden signed Presidential Proclamation, “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019,” that restricts the entry of non- U.S. Citizens who were physically present within the Republic of South Africa, Republic of Botswana, Zimbabwe, Republic of Namibia, Kingdom of Lesotho, Kingdom of Eswatini, the Republic of Mozambique, and Republic of Malawi, during the 14-day period preceding their entry or attempted entry to the United States.

The new travel ban becomes effective at 12:01 a.m. eastern standard time on Monday, November 29, 2021, as part of a global effort to reduce the spread of the omicron variant to the United States. The Proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 am eastern standard time on November 29th.

While no confirmed cases of the variant have yet been announced in the United States, the Chief Medical Adviser has explained that its eventual spread will be inevitable. The new travel ban indicates that the Republic of South Africa informed the World Health Organization (WHO) of the new Omicron variant on November 24, 2021, and two days thereafter the WHO announced the new “Omicron” variant as a cause for concern that has been increasing in almost all provinces in the Republic of South Africa. Based on this information, and the lack of genomic sequencing throughout Southern Arica, the government has imposed the new travel restrictions from the named regions.

How long will the travel ban last?

At this time, we do not know how long the bans will remain in place, however it is very likely that they will remain until the Biden administration believes it is safe to rescind the travel bans. As has occurred with the previous COVID-19 geographic travel bans, it is highly likely that the new travel ban will remain in place until it is determined that current vaccinations approved by the U.S. Centers for Disease Control and Prevention are effective against the emerging Omicron variant. The Proclamation indicates that it will remain in effect until terminated by the President. Within 30 days, the Secretary of Health and Human Services must recommend whether the President should continue, modify, or terminate the Proclamation.

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