A monthly publication of the International Law and Immigration Section of the California Lawyers Association.
Editor-in-Chief, Payal Sinha
ROSARIO Settlement Notice Requires U.S. Citizenship and Immigration (USCIS) to Process All Initial Employment Authorization Document (EAD) Applications from Asylum Applicants within 30 Days.
On March 17, 2022, USCIS published a class action settlement notice regarding a court decision that requires USCIS to process all initial EAD (or “work permit”) applications from asylum applicants (known as “(c)(8)” EAD applications) within 30 days. Note that this 30-day processing requirement does NOT apply to renewal (c)(8) EAD applications or initial EAD applications based on other grounds, such as (c)(9) applications based on a pending I-485.
The Executive Office For Immigration Review (EOIR) Revised the New Method For Requesting Records of Proceedings.
On March 10, 2022, EOIR updated its announcement regarding the new method for requesting court records, modifying the email addresses where such requests must be sent and reverting to a phone number for the Board of Immigration Appeals (BIA). Chapter 1.5 of the Immigration Court Practice Manual indicates that parties and their representatives may inspect the official record in a case without submitting a FOIA request and strongly recommends pre-arranging inspection with court staff. For the BIA, the chapter states that the BIA Clerk’s Office will provide copies of the official record of proceedings to parties and their representatives of record upon request and instructs parties to make such requests by calling the BIA Clerk’s Office.
Please note that for cases with electronic records, including, but not limited to, all cases initiated after February 11, 2022, the record of proceedings is available electronically through the EOIR Court and Appeals System (ECAS) portal here: https://portal.eoir.justice.gov/.
USCIS Announces 60-Day Deadline Extension for RFEs and NOIDs
On March 30, 3022, USCIS announced, in response to the ongoing COVID-19 pandemic, it has continued giving applicants extra time to respond to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). Applicants can respond to an agency request within 60 calendar days of the due date given by USCIS in the original notice. This policy applies to RFEs and other requests from USCIS that are dated between March 1, 2020 and July 25, 2022.
USCIS Announces New Actions to Reduce Backlogs, Expand Premium Processing, and Provide Relief to Work Permit Holders
On March 29, 2022, USCIS announced a trio of efforts to increase efficiency and reduce burdens to the overall legal immigration system. As part of the new plan, USCIS says it will hire more staff, expand premium processing, and continue modernizing its technology to meet processing time goals. The agency believes it can meet these goals by September 2023.
As of February, the backlog was at 9.5 million applications, up from 5.7 million at the end of Fiscal Year 2019.
Department of Homeland Security (DHS) and Department Of Justice (DOJ) Issue Rule to Efficiently and Fairly Process Asylum Claims
On March 23, 2022, DHS and DOJ announced a rule to expedite the processing of asylum claims subject to expedited removal, by authorizing asylum officers within U.S. Citizenship and Immigration Services (USCIS) to consider the asylum applications of individuals subject to expedited removal who assert a fear of persecution or torture and pass the required credible fear screening. Currently, such cases are decided only by immigration judges within the Justice Department’s Executive Office for Immigration Review.
Under the rule, individuals who receive a positive credible fear determination will receive a timely interview with an asylum officer to elicit all relevant and useful information about their asylum claim. Any individual who is not granted asylum by USCIS will be referred for a removal proceeding before an immigration judge. The rule will not apply to unaccompanied children, and it will only apply to individuals who are placed into expedited removal proceedings on or after its effective date. The rule will be effective 60 days after publication in the Federal Register and is open for public comment.
DHS Rescinds Title 42 Expulsions at the Mexico Border
On April 1, 2022, DHS announced that it will end its use of Title 42, the contentious policy that prevented most asylum seekers from applying for protection at the country’s southern border with Mexico due to the COVID-19 surges in the country by May 23, 2022, but that expulsions of adults and families will continue until then. Unaccompanied children have been exempt since January of last year.
The new asylum procedures are called the “dedicated docket,” where determinations on cases will be made within 90 days at the border – rather than in immigration courts, where the process can take years. It is intended to bypass the significant backlog of immigration cases across the country.
USCIS Updates Guidance on L and E Spouse Employment Authorizations
On March 18, 2022, the USCIS issued guidance for L and E spouses regarding evidence of their employment authorization pursuant to valid status.
Beginning approximately April 1, 2022, the USCIS will mail a notice to all L and E spouses over age 21 who have previously received approval of a Form I-539 (extension of status request). This spouse designation notice can be used as evidence of employment authorization along with an unexpired Form I-94 for those individuals who do not possess an I-94 with the spouse designation. If the L and E spouses do not receive a notice by April 30, there is guidance on how to request a notice. Affected spouses who arrived in the U.S. prior to January 30, 2022, and who have never filed the I-539 extension of status, may require extra steps, such as travel, to obtain evidence of employment authorization if needed.