I have been practicing in this field for over 20 years, and we have represented clients when government agencies have been indifferent to the impact their lack of bureaucratic efficiency has caused. A little more than 20 years ago, an adjustment of status process at the Texas Service Center would routinely take 3 years from filing to approval; and during that time, if someone lost their job, they lost their green card application and status. The lack of fairness led to AC-21 and green card portability for those whose applications were pending for more than six months. For a period of over a decade we saw other tweaks and fixes aimed at making the system generally more efficient, logical, and transparent – while not a perfect system, we generally felt the government was trying to get better at its job even if sometimes it was two steps forward, one step back. Put another way, while we never saw a wholesale reform of the underlying laws the DHS, DOL, and DOS interpret and enforce, they at least generally did as good a job as they could with what they had, and things were generally trending better.
Unfortunately, we have now encountered two negative forces – first a previous administration wholly opposed to all forms of immigration and second the COVID-19 pandemic. Our current administration has rolled back many of the negative policies of its predecessor, however it is clear this goes deeper than policies and goes to the issue of how cases are processed and managed. And we have seen the COVID-19 pandemic have a significant impact on availability of government services thus leading to significant backlogs. We are now seeing record delays at DHS, DOS, and DOL and things are not getting better, rather they are getting worse in many respects. There are thousands of people stranded from families and jobs only because of a decision to limit entry long after the most severe outbreaks have passed.
Now that we have shown significant improvement related to COVID-19 infection rates, severe illness, and death, it is time to ensure that all government workers are vaccinated and protected and that we have a regular functioning government. It is also time to end the vast majority of COVID-19 geographical travel restrictions and permit free flow of individuals who are vaccinated or have a negative result and undergo appropriate quarantine. As a country we claim to be exceptional, we now need to show this not just in immigration policy (which is still sorely lacking – and an issue for another day), but in how our government works. There have been many challenges for this current administration – but it is now past due that we get our immigration system functioning at a full capacity and a lack of a cohesive plan to get there is a failure our economy and people cannot accept any longer.
On May 13, U.S. Citizenship and Immigration Services (USCIS) announced the temporary suspension of the biometrics submission requirements for certain I-539 dependent applicants. Effective May 17, applicants requesting an extension of stay or a change of status to H-4, L-2, E-1, E-2, and E-3 categories will not be required to submit biometrics if 1) they are pending on May 17, 2021, and have not received a biometric services appointment notice, and 2) are new applications received by USCIS from May 17, 2021 through May 23, 2022. Moving forward, new I-539 applicants will not need to pay the biometric services fee during the two-year suspension.
Though USCIS will process these cases based on biographic information and related background checks during the suspension period, without capturing fingerprints and a photograph, the agency retains discretion on a case-by-case basis to require biometrics appointments. Form I-539 applicants who have received biometric services appointment notices should attend their scheduled appointments.
On April 27, USCIS issued a policy guidance in its Policy Manual instructing officers to give deference to prior determinations while adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts. With this new guidance, the agency reinstated a 2004 adjudication policy that the previous administration rescinded in 2017. The agency notes that “affording deference to prior approvals involving the same parties promotes the efficient and fair adjudication of immigration benefits.”
On May 4, based on the rise of COVID-19 cases in India, President Biden issued a Presidential Proclamation suspending entry to the United States from India individuals who have been present in India during the 14-day period preceding their entry or attempted entry into the U.S. with some exceptions. The restrictions do not apply to U.S. citizens, permanent residents, the immediate family members of U.S. citizens and permanent residents and certain other individuals.
Travelers to the U.S. remain eligible to apply for a National Interest Exemption waiver including academics, students, journalists, humanitarian travels, public health responders, and travelers who will benefit national security. An exception is also provided for individuals who are working to provide vital support for key US infrastructure.
India now joins the list of travel restricted countries that include China, Iran, Brazil, South Africa, the Schengen Area, the United Kingdom, and Ireland. Travel to the U.S. from India and other travel restricted countries continues to be difficult while the Presidential Proclamations remain in effect. This is compounded by the Department of State’s recent decision to not issue nonimmigrant visas based on these travel restrictions.
We will continue to provide updates on travel restrictions as they are announced.
On its website, the Social Security Administration (“SSA”) has announced that it has discontinued sending Employer Correction Request Notices, often referred to as “No-Match letters,” to employers which the agency had resumed sending in 2019. No-Match letters provide notice to employers that a discrepancy exists between an employee’s W-2 form and SSA records. Possible “mismatch” may be caused by administrative error or typo, misspelled names, name change due to marriage, or fraudulent information.
The June 2021 visa bulletin made notable progress in some categories, while others remain unchanged, compared to May 2021 in terms of Final Action Dates for employment-based visa applications. EB-1 Worldwide remains current. EB-1 China, India, and Philippines remain current. EB-2 Worldwide remains current. EB-2 China has advanced to May 01, 2017 while India has advanced to December 01, 2010; EB-2 Philippines remains current. EB-3 Worldwide remains current. EB-3 China has advanced to September 01, 2018. EB-3 India has advanced to November 01, 2011, and EB-3 Philippines remains current.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **