USCIS Implements New Policies to Address Ongoing Issues

On June 9, United States Citizenship and Immigration Services (USCIS) issued new policy changes in an effort to reduce processing delays and reduce barriers that may impede access to immigration benefits. The new policy changes include:

• Employment Authorization Document Validity Extension – USCIS will now grant EADs with a validity period of 2 years instead of 1.
• Expansion of Expedite Criteria – USCIS will restore the ability for a nonprofit organization, as determined by the IRS, whose request is in furtherance of the cultural and social interests of the United States to request discretionary expedited service. The expedite request may be made even when premium processing is available for the benefit requested.
• Return to the 2013 RFE Guidance – In 2013, USCIS published guidance requiring officers to issue RFEs in cases involving insufficient evidence before denying such cases unless the officer determined that there was “no possibility” that the petitioner or applicant could overcome the ineligibility finding. In 2018, USCIS rescinded the “no possibility” policy, and the agency issued new guidance allowing officers to deny a benefit when a petition or application lacked initial evidence without first sending a RFE or NOID. As a result of the 2018 policy, the number of initial denials rose significantly. In an effort to “ensure that benefit requests are given an opportunity to correct innocent mistakes and unintentional omissions,” USCIS has rescinded the 2018 policy and restored the 2013 policy.

The recent policy changes are steps in the right direction as the agency seeks to reduce processing times and backlogs and ensure fair and efficient adjudication of immigration benefits.

DOS Revises NIE Policy

On June 1, the Department of State, expanded its existing National Interest Exception (NIE) policy to include “travelers providing vital support or executive direction for significant economic activity in the United States.” NIE are required if an individual wishes to enter the U.S. directly from a country currently under a covid travel restriction. In 2020, this criterion was used to allow travel to the U.S. for high-level business executives; however, it was eliminated in the March 2021 guidance leaving many executives with no ability to get a visa or enter the U.S. With the restoration of this exception, high-level executives should be able to schedule a visa appointment interview, obtain a nonimmigrant visa, and travel to the United States even if they have been physically present in any of the 33 subject countries during the 14-day period preceding their entry or attempted entry into the United States.

Please contact a member of our legal team if you are impacted by the travel ban and have questions regarding qualifying for an NIE waiver.

USCIS Announces Lockbox Filing Flexibilities

On June 10, USCIS announced two temporary flexibilities that are effective for 60 days until August 9, 2021 for applicant and petitioners impacted by delays at a USCIS lockbox. First, the agency will allow the resubmission of a benefit request if the benefit request was submitted to a USCIS lockbox between October 1, 2020, and April 1, 2021, and the request was rejected during the timeframe solely due to a filing fee payment that expired while the benefit request was awaiting processing. USCIS will deem the request to have been received on the initial date as it was received and waive the $30 dishonored check fee. Second, USCIS will allow applicants and petitioners to submit documentation with a benefit request resubmission to demonstrate that USCIS’s delayed rejection caused the person to be ineligible due to aging out. If USCIS agrees that the agency’s delayed rejection caused the applicant or petitioner to have aged out of a benefit, the agency will accept the request and deem it to have been received on the date the initial benefit request was received. However, this flexibility does not apply to Form N-600K, Application for Citizenship Issuance Certificate Under Section 322.

U.S. Citizens Abroad May Return with Expired Passports

The DOS has announced that U.S. citizens can use their expired passports to return to the U.S. through December 31, 2021. To qualify for this exception, U.S. citizen travelers must fly directly to the United States, a United States territory, or have only short-term transit through a foreign country. Additionally, the expired passport must be undamaged, in their possession, and was originally valid for 10 years. If the U.S. citizen was 15 years of age or under when the passport was issued, their expired passport was originally valid for 5 years. This temporary policy only applies to U.S. citizens whose passports expired on or after January 1, 2020.

U.S. Embassy in London Cancels Routine Consular Interviews

On June 1, the U.S. Embassy in London notified visa applicants that routine August – October 2021 interviews, including for B1/B2 visas, were cancelled. The embassy indicated that these interviews were placeholders and that, “since many of these will not qualify for an NIE, it was procedurally easier to cancel them all.” Moreover, the embassy advised individuals whose appointments were cancelled to reschedule for March 2022 and request an expedited appointment, if those individuals believe they qualify for an NIE exemption.

Given decreased staffing levels, and the fact that the U.K. remains subject to the travel ban, the multi-month cancellation of interviews highlights the uncertainties for individuals trying to obtain a visa to enter or reenter the United States. And we have now seen multiple situations where consulates have closed or reduced services with little or no warning, so we do advise clients that nothing is “certain” until you safely enter the U.S. If an applicant does not qualify for an NIE, he or she will likely need to remain abroad for the foreseeable future. Accordingly, our firm continues to advise individuals with expired visas who plan to travel to a travel ban country to reconsider their travel. Please contact a member of our legal team if you have planned foreign travel so that we can assess the viability of the travel and any risks involved.

Visa Bulletin

The July 2021 visa bulletin made notable progress in some categories, while others remain unchanged, compared to June 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 December 01, 2017 while India has advanced to June 01, 2011; EB-2 Philippines remains current. EB-3 Worldwide remains current. EB-3 China has advanced to January 01, 2019. EB-3 India has advanced to January 01, 2013, 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 **