Immigration Update: February 2022

On February 9, 2022, USCIS Director Ur M. Jaddou announced the agency’s new mission statement. The new mission statement reflects this feedback from the workforce, the priorities of the Biden Administration, and Director Jaddou’s vision for an inclusive and accessible agency.

The new mission statement can be found here: “USCIS upholds America’s promise as a nation of welcome and possibility with fairness, integrity, and respect for all we serve.”

On February 7, 2022, USCIS published updated policy guidance to change the maximum validity period that may be granted for Employment Authorization Documents (EADs) issued to certain applicants, as well as to provide general guidance on adjudicating Form I-765, Application for Employment Authorization. For more information, click here.

USCIS has updated the USCIS Policy Manual to reflect new guidance on how they determine whether a case warrant expedited treatment. This clarifies the criteria and circumstances under which USCIS generally consider expedited requests from nonprofit organizations as determined by the Internal Revenue Service; requests made by federal, state, or local agencies, including labor and employment agencies; relates to emergencies and urgent humanitarian reasons; and others.

The O-1 nonimmigrant visa program provides nonimmigrant visas for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have demonstrated extraordinary achievement in the motion picture or television industry and been recognized nationally or internationally for those achievements. Under the O-1B category, individuals in the entertainment industry can demonstrate either extraordinary ability in the arts or extraordinary achievement in the motion picture and television industry. The newly-issued guidance clarifies the nuances that distinguish O-1B (Arts) beneficiaries from O-1B (MPTV) beneficiaries, noting that “USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview.” For more information, click here.

F-1 nonimmigrant students in certain programs in the fields of science, technology, engineering, or mathematics (STEM) are eligible to apply for a twenty-four-month extension of Optional Practical Training (OPT), in addition to the standard twelve months of OPT available to all F-1 nonimmigrant students.

As of January 21, 2022, the DHS has added 22 fields of study to the list of programs that qualify for STEM OPT. For more information, click here.

USCIS recently issued policy guidance addressing the automatic extension of status for H-4, L-2, and E dependent spouses in response to the settlement of a class-action lawsuit.

On January 31, 2022, US Customs and Border Protection (CBP) began implementing the new I-94 system at ports of entry throughout the United States, issuing admission codes so that E and L spouses’ I-94s now bear a spousal designation in the form of an “S” next to their status. Pending applications under these categories are soon to receive approval notices by USCIS with the new designation. If an E or L-2 dependent spouse has the new “S” designation on his or her Form I-94, an EAD is no longer required for that individual’s work authorization. For more information, click here.

In Tomas-Ramos V Garland, No. 20-1201, the Fourth Circuit made some positive pronouncements on review of a negative reasonable fear determination. The Court found that the substantial evidence standard (not the “facially legitimate and bona fide reason” standard advocated by the Department of Homeland Security) is the appropriate standard for review of factual findings underlying an Immigration Judge’s reasonable fear determination. Also that the familial ties qualify as a protected ground for purposes of persecution claim, including in this case “immediate family members of [son who was recruited by gang members].” The facts (death threats to father for refusing to allow his son to join a gang) compelled a conclusion that nexus was established. The case was remanded for review of the internal relocation issue because the establishment of past persecution gave rise to a presumption of future persecution, which the government bears the burden to rebut.

On February 8, 2022, a federal judge in Washington, D.C. ruled that two rules restricting work permits for asylum-seekers were invalid because former Acting DHS Secretary Wolf was not validly installed at DHS, and therefore did not have the authority to enact any regulations and policies and that the Biden administration could not save the rule after the fact.

The court held that the previous administration failed to follow the legal succession requirements for the Department of Homeland Security (DHS). The decision said that the first rule was a “timeline repeal rule,” which got rid of a rule requiring DHS to process asylum-seekers’ work permit applications within 30 days. The second rule added over a dozen restrictions to employment authorization for asylum seekers, including extending the length of time an asylum applicant had to wait before they could request work authorization from 150 days to one year.

On February 10, 2022, USCIS announced that its publishing policy guidance in the USCIS Policy Manual on eligibility, filing, and adjudication requirements addressing Violence Against Women Act (VAWA) self-petitions to update practices and align USCIS policies with recent court decisions.

USCIS shared that it is updating their interpretation of the requirement for shared residence to occur during the qualifying spousal or parent-child relationship. Instead, the self-petitioner must demonstrate that they are residing or have resided with the abuser at any time in the past.

USCIS is also implementing nationwide the decisions in Da Silva v. Attorney General, 948 F.3d 629 (3rd Cir. 2020), and Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021). Da Silva v. Attorney General held that when evaluating the good moral character requirement, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.” Arguijo v. USCIS allows stepchildren and stepparents to continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced.

These updates are in accordance with Executive Order 14012: Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans.

The Executive Office of Immigration Review (EOIR) announced that hearings scheduled on February 8, 2022 and forward will proceed as scheduled, subject to local court operations. Details are available on the EOIR Operational Status page.

EOIR’s online filing system, ECAS, is now available across all immigration courts.  As of February 11, 2022, ECAS will be used for all newly initiated cases as outlined in EOIR’s final rule.  The rule mandates electronic filing for the DHS, attorneys, and accredited representatives; provides standards for electronic filing relating to signatures and service of process; updates fee language to account for electronic payments; and removes duplicate filing requirements for electronic filings. Cases (“Paper” or “Legacy” cases) that commenced before Feb. 11, 2022 will not use ECAS. Attorneys can register for ECAS here: https://www.justice.gov/eoir/ECAS. Further guidance forthcoming.