Immigration Update: February 2023

On February 2, 2023, USCIS updated its USCIS Policy Manual to clarify the applicability of the 1-year physical presence requirement for refugees and asylees applying for adjustment of status. Although this eligibility requirement is similar for asylees and refugees, USCIS guidance has differed on whether refugees and asylees are required to satisfy the physical presence requirement at the time of filing or the time of adjudication of adjustment of status.

On February 14, 2023, USCIS issued policy guidance to update when an immigrant visa “becomes available” to calculate the Child Status Protection Act (CSPA) age in certain situations. The CSPA protects particular beneficiaries from losing eligibility for immigrant visas and adjustment of status due to their aging during the immigration process which can lead to them no longer qualifying as a child for immigration purposes. USCIS has updated its policies and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

On February 22, 2023, USCIS issued policy guidance to clarify the validity period of employment authorization for F-1 students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)).

USCIS is requiring all applicants to submit all required initial evidence and supporting documentation at the same time an applicant files Form I-485 to eliminate the need for USCIS to issue a Request for Evidence (RFE), to obtain additional evidence and documentation. This also helps avoid adjudication delays if USCIS decides that you do not need to be interviewed.

As of February 8, 2023, USCIS has updated its filing location for Forms I-30 and I-485 for Self Petitioning Abuses Spouses, Children, and Parents under the Violence Against Women Act (“VAWA”). To minimize the impact of this change, USCIS has extended the grace period from 30 days to 60 days for petitioners to file Forms I-360 and I-485 at the Vermont Service Center. The grace period will now run through April 12, 2023. Applications filed at the Vermont Service Center must be postmarked by April 12, 2023. USCIS will reject any VAWA-based Forms I-360 or I-485 filed at the Vermont Service Center that is postmarked after that date.

On January 12, 2023, USCIS announced its implementation of the final phase of premium processing expansion to I-140 Petitions filed under EB-1 and EB-2 categories. This phase will apply to new (initial) petitions, in addition to pending petitions under an E13 multinational executive and manager classification or E21 classification of a member of professions with advanced degrees or exceptional ability seeking a Nation Interest Waiver (NIW).

On January 13, 2023, DHS announced that noncitizen workers who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process. Non-citizens will now be able to submit such requests to USCIS through a central intake point explicitly established to support labor agency investigative and enforcement efforts. These improvements advance the Biden-Harris Administration’s commitment to empowering workers and improving workplace conditions by enabling all workers, including noncitizens, to assert their legal rights.

Requests for deferred action submitted through this centralized process must include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction. Workers will be able to visit DHS.gov for additional information in English and Spanish and to submit requests.

On January 12, 2023, DHS announced that non-citizens located in Central or Northern Mexico who seek to travel to the U.S. may use the new scheduling function, CBP’s OneTM app to submit information in advance and schedule an appointment to present themselves at certain southwest ports of entry (POEs). This system is expected to reduce wait times and there is no cost to using this application and is available in English and Spanish on Apple App Store or Google Play as well as on www.cbpone.cbp.dhs.gov

In the legal settlement reached in Edakunni v. Mayorkas, 2:21-cv-00393-TL (W.D. Wash. Jul. 5, 2022), USCIS agreed to return to bundling the adjudication of dependent applications (H-4/L-2) and corresponding work authorization applications that are concurrently filed with the principal H-1B/L-1 petitions. Effective January 25, 2023, this bundling will apply to petitions filed either under premium or regular processing. The decoupling of the dependent petitions resulted in not only processing delays but left several individuals with gaps in their immigration status and/or employment authorization. The bundling is expected to continue for at least two years.